H S Lokesh vs State By K M Doddi Police
2021 Latest Caselaw 555 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 11TH DAY OF JANUARY 2021

                              BEFORE

  THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

     CRIMINAL REVISION PETITION No.938 OF 2011

BETWEEN:

H.S. Lokesh
S/o. H.P. Siddappa,
Aged about 25 years,
R/o. No.53, 12th Cross,
1st Main Road, Magadi Road,
Anjana Nagara,
Bangalore City.
                                                    ..Petitioner
(By Sri. G.M. Ananda, Advocate)

AND:

State by K.M. Doddi Police,
Mandya.
                                                   .. Respondent
(By Sri. H.R. Showri, High Court Govt. Pleader)

                                    ****
      This Criminal Revision Petition is filed under Section 397 read
with Section 401 of Cr.P.C. praying to set aside the judgment
dated 06-08-2011 in Crl.A.No.58/2009 passed by the Principal
Sessions Judge at Mandya; and set aside the judgment dated
20-04-2009 in C.C.No.303/2008, passed by the Additional J.M.F.C.
at Maddur, etc.
                                              Crl.R.P.No.938/2011
                                 2


      This Criminal Revision Petition coming on for Hearing,
through Physical Hearing/Video Conferencing Hearing this
day, the Court made the following:

                            ORDER

The present petitioner was accused in C.C.No.303/2008 in the

Court of the learned Additional J.M.F.C at Maddur, (hereinafter for

brevity referred to as the "Trial Court"), who by its judgment dated

20-04-2009 was convicted for the offences punishable under

Sections 279, 304(A) of the Indian Penal Code, 1860 (hereinafter

for brevity referred to as the "IPC") and Section 134 read with 187

of Motor Vehicles Act, 1988 (hereinafter for brevity referred to as

the "M.V. Act") and was sentenced accordingly.

Aggrieved by the same, the accused preferred an appeal in

Criminal Appeal No.58/2009 in the Court of the learned Principal

Sessions Judge at Mandya (hereinafter for brevity referred to as the

"first appellate Court"), which after hearing both side allowed the

appeal in part and though it upheld the impugned judgment of

conviction passed by the Trial Court, but it reduced the sentence

imposed by the Trial Court upon the accused. Not satisfied with the

same, accused has preferred the present revision petition.

Crl.R.P.No.938/2011

2. The respondent - State is being represented by the

learned High Court Government Pleader.

3. The Trial Court and the first appellate Court's records were

called for and the same are placed before this Court.

4. Heard the arguments from both side. Perused the materials

placed before this Court including the Trial Court and first appellate

Court's records.

5. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the Trial Court.

6. After hearing the learned counsels for the parties, the

points that arise for my consideration in this revision petition are:

i] Whether the concurrent finding recorded by the Trial Court as well as the first appellate Court that the accused committed the alleged offence punishable under Sections 279, 304-A of the Indian Penal Code, 1860 and Section 134 read with 187 of Motor Vehicles Act, 1988, warrants any interference at the hands of this Court?

ii] Whether the sentence of imprisonment modified and reduced by the first appellate Court further requires to be reduced?

7. The case of the prosecution is that the present petitioner

being the driver of a Truck bearing registration No.KA-41/1699 Crl.R.P.No.938/2011

drove the same in a rash and negligent manner while proceeding

from Maddur towards Malavalli on 21-11-2007 and near Kolli

bridge, he dashed against the rider of a bicycle by name Katagaiah

from his behind, as a result of which accident, the said Katagaiah

fell down and sustained severe injuries and succumbed to the same

on the spot. It is further alleged that immediately after the said

road traffic accident, the accused ran away from the place without

attending to the injured and without even informing the Police and

thus has committed the offence punishable under Sections 279,

304-A of the IPC and Sections 134 read with Section 187 of the

M.V. Act.

8. The accused pleaded not guilty. As such, in order to prove

the guilt against the accused, the prosecution got examined eight

witnesses from PW-1 to PW-8 and got marked documents from

Exs.P-1 to P-7(a).

9. After hearing both side, the Trial Court by its impugned

judgment of conviction and order on sentence dated 20-04-2009

convicted the accused for the alleged offences, which was further Crl.R.P.No.938/2011

confirmed by the first appellate Court, however, by reducing the

sentence imposed upon the accused.

10. Learned counsel for the petitioner in his argument mainly

canvassed three points. Firstly, that the road condition was not

good and it was prone to accident. Secondly, he contended that

the deceased who was a bicycle rider, on his own fell down and

sustained injuries while negotiating in his effort to move from the

road to the side line of the road/foot path where there was variation

of the height. Thirdly, he also submitted that for non-examination

of the medical Doctor who had conducted autopsy also, the

impugned judgments deserve to be set aside. He further

submitted that the vehicle coming to a halt after moving a distance

of 20 feet from the spot of the accident would go to show that the

vehicle was moving slowly, otherwise, it would have gone some

more distance. Finally stating that the quantum of sentence

confirmed by the first appellate Court is also on the higher side,

prays for allowing the revision petition and acquitting the accused

from the alleged offences.

Crl.R.P.No.938/2011

11. Learned High Court Government Pleader for the

respondent - State in his argument submitted that occurrence of

road traffic accident on the date, time and place alleged in the

charge sheet are not in dispute, so also, the involvement of the

Truck bearing registration No.KA-41/1699. He further submits that

it is not in dispute that the present petitioner was driving the said

Truck as at the time of the accident. He further submits that the

deceased Katagaiah was going on a bicycle on the spot of the

accident and sustained injuries and died on the spot, is also not in

dispute. Learned High Court Government Pleader further submits

that it is not denied that PW-2 and PW-3 were the eye witnesses to

the alleged accident. As has come out from their evidence, they

were coming from the opposite direction to the spot of the accident,

as such, they have very clearly witnessed the occurrence of the

accident. He further submits that the very same eye witnesses have

categorically stated that the road condition was not bad and that

they have specifically denied the suggestion made to them that the

condition of the road, particularly on the spot of the alleged

accident was bad, though have denied that the road condition was Crl.R.P.No.938/2011

not good. He further submits that the very admitted fact that the

Truck after causing the accident has covered a further distance of

about 20 feet itself would go to show that the vehicle was in high

speed. Finally, stating that the first appellate Court, after analysing

the entire facts and circumstances of the case, since has further

reduced the quantum of sentence, the same does not warrant any

more interference by this Court, since the same is reasonable and

proportionate to the proven guilt against the accused.

12. Admittedly, PW-1 - Padmamma is not an eye witness to

the accident, but she is the wife of the deceased Katagaiah and is

the complainant in the said case. Thus, her role is putting the

criminal law into motion against the accused. She has got the

complaint lodged by her marked at Ex.P-1.

13. PW-2 - Gopala and PW-3 - Mariyaiah claim themselves

to be the eye witnesses to the incident. Both of them have stated

that at the time of accident, both of them were together coming on

the same road towards their village but from the opposite direction

to the spot of the accident. They have specifically stated that while Crl.R.P.No.938/2011

they were seeing, the accident has occurred and it was the present

accused who was driving the ill-fated Truck in a rash and negligent

manner and at a high speed. They have also stated that the Truck

was being driven at a high speed and it dashed against the

deceased Katagaiah who was riding the bicycle on the side of the

road and made him to fall down and the driver after bringing the

said Truck to a halt at a distance, ran away from the place. They

have specifically stated that the accident has occurred due to rash

and negligent driving of the Truck by the accused and due to which

Katagaiah sustained injuries and succumbed to the injuries in the

spot. They have also claimed that they have identified the accused

in the Police Station on the next day.

14. PW-4, PW-5 and PW-6 claim themselves to be the

panchas to the scene of offence panchanama marked at Ex.P-5.

They have also given the description as to the place of accident and

spoken that the accident has occurred on one side of the road and

the Lorry which caused the accident had come to a halt at a

distance of 20 feet from the place of accident. PW-6 has also given

the details of the damages caused to the bicycle as he saw in the Crl.R.P.No.938/2011

spot. Thus, the scene of offence panchanama is further

corroborated by these three witnesses.

15. PW-7 and PW-8 are the Investigating Officers who have

spoken about receiving of the complaint, registering it as a crime in

their Police Station, submission of FIR to the Court and conducting

of investigation which ended in filing of charge sheet against the

accused for the alleged offences.

16. The evidence of PW-2, PW-3, particularly about the

occurrence of the road traffic accident and the involvement of the

accused as a driver of the Truck bearing registration No.KA-

41/1699 since has not been specifically denied or disputed, goes to

show that, it is proved beyond reasonable doubt that on

21-11-2007, a road traffic accident had occurred wherein the Truck

bearing registration No.KA-41/1699 being driven by the accused

had dashed to the deceased, due to which, the deceased sustained

injuries. According to them, the deceased also died on the spot.

Several suggestions were made to both these witnesses i.e. PW-2

and PW-3 suggesting to them that the condition of the road as on Crl.R.P.No.938/2011

that date was not good. Though PW-2 has stated that as on the

date of accident, the condition of the road was not bad and it was

good, but PW-3 in-toto denied the said suggestion that condition of

the road was not good. Thus, both of them have uniformly stated

that the condition of the road was good as on the date of the

accident. No doubt PW-3 in his cross-examination has said

regarding the localites of the nearby village holding a dharna on

the said day in protest of the condition of the road, but by that itself

it cannot be inferred that as on the date of the accident, the very

spot, where the road traffic accident took place was not good.

17. Even all the three scene of offence panchanama

witnesses i.e. PW-4 PW-5 and PW-6 have also not admitted a

suggestion that the condition of the road was not good as on the

date of accident. Except making the said suggestion to these

material witnesses, no further evidence either oral or documentary

could be placed by the accused's side to substantiate his defence

that the condition of the road was bad, as such, the accident has

occurred. Therefore, added to the scene of offence panchanama at

Ex.P-5 also, no where it mentions that the condition of the road at Crl.R.P.No.938/2011

that particular spot of accident was bad. Had really the road

condition was bad, particularly on the spot of the accident,

definitely there should be some finding or observation in the scene

of offence panchanama at Ex.P-5. Therefore, the first contention of

the learned counsel for the petitioner that the road condition was

not good, as such, the accident has occurred, is not acceptable.

The argument of the learned counsel for the petitioner that

the alleged bad condition of the road was the main cause of the

accident, is not acceptable for the reason that merely an alleged

bad condition of the road would not give any licence for the vehicle

drivers to commit any road traffic accident. In such a situation, a

driver of a motor vehicle is expected to be more cautious and

careful in his driving of the vehicle. As such also, the contention of

the petitioner that the accident has occurred due to the alleged bad

condition of the road, is not acceptable.

18. It is also the contention of the learned counsel for the

petitioner/accused that the deceased Katagaiah was negotiating at

that time for moving from the road to the side of the footpath and in Crl.R.P.No.938/2011

the said process, due to variation in the height of the road, he fell

down and sustained injuries. On this point also, though not exactly

on those lines, leading to the said inference, some suggestions

were made to PW-2 and PW-3 in their cross-examination from the

accused's side. However, both the witnesses have categorically

denied the said suggestions. They have not admitted that the

deceased Katagaiah was negotiating with his bicycle to move from

the road towards the side of the road or the foot path. On the other

hand they adhered to their version that while Katagaiah was

moving slowly and safely on his bicycle, it was the speeding Truck

being driven by the accused which dashed to him from his backside

making him to fall and sustain injuries. Except PW-2 and PW-3,

who claim to be the eye witnesses, the other witnesses are not

competent to say regarding the manner of occurrence of accident

because none of them are eye witnesses. As such, from the

evidence of PW-4, PW-5 and PW-6, who are the panchas to the

scene of offence panchanama, it cannot be inferred that deceased

Katagaiah sustained injuries on his own fault.

Crl.R.P.No.938/2011

Further, according to PW-2, the width of the said road was

about 35 feet. The rough sketch prepared by the Investigating

Officer, i.e. PW-8, which is at Ex.P-7 also goes to show that the

deceased Katagaiah did not fall on the alleged foot path or side

mud road but he has fallen on the road only and the Truck/Lorry

which is said to have caused the accident had come to a halt on the

road portion only after further travelling a distance of 20 feet. As

such also in the absence of any material to show that the deceased

Katagaiah was negotiating with his bicycle to come down to the side

of the road/foot path from the main road, the said contention taken

up by the learned counsel for the petitioner as a reason for the

accident, is not acceptable.

19. The third point of argument of the learned counsel for

the petitioner was that, the fact that the Lorry after the accident,

came to a halt at 20 ft. distance itself would go to show that the

said Lorry was slow in its pace. The said argument of the learned

counsel is also not accepted for the reason that any slow moving

vehicle or a vehicle with proper control that too a heavy vehicle

like the Truck involved in the present case would come to a halt on Crl.R.P.No.938/2011

the spot provided the driver applies brake at an appropriate time

and the vehicle was not being driven in a rash and negligent

manner. The very fact that after the accident, the Truck in question

has further covered a distance of 20 ft. before coming to a halt

itself would go to show that it was at a high speed and the driver

also being rash and negligent, could not control the Truck well in

time to avoid the accident. Rather, he allowed it to further cover a

distance of 20 ft., as such, the said point of argument of the

learned counsel for the petitioner also, is not acceptable.

20. Learned counsel for the petitioner also submitted that in

view of the non-examination of the medical Doctor who conducted

autopsy, the cause for the death cannot be accepted as the one due

to road traffic accident and the benefit of the same must be

extended to the accused. The said argument also is not acceptable

for the reason that, PW-2 and PW-3 who claim themselves to be the

eye witnesses to the alleged accident have categorically and

specifically stated that, they were the eye witnesses to the

accident where they saw the deceased Katagaiah sustaining injuries

when he fell down at the dashing of the Lorry to his bicycle and Crl.R.P.No.938/2011

they also saw deceased Katagaiah sustaining injuries to his head,

hands and legs and succumbing to it on the spot. The inquest

panchanama at Ex.P-2 also goes to show that, the panchas to the

said panchanama have opined the same, stating that the death of

deceased was due to the road traffic accident. The details of the

injuries recorded by the Doctor in the post-mortem report at Ex.P-3

which includes several abrasions on different parts of the body

including the back of the deceased and crush injures with abrasion

over right hand joint with multiple fracture and depressed fracture

over the parietal region and temporal region of the right side of the

head among other fatal injuries, would go to show that in the

accident, deceased Katagaiah sustained fatal injuries. The Doctor

also has opined that the cause of death was due to haemorrhage,

shock, as a result of injuries to head, brain, spleen, liver, kidneys

and other organs due to road traffic accident. Thus, the Doctor has

specifically and categorically stated that the death of deceased

Katagaiah was due to multiple injuries to the various vital organs

including brain, spleen and liver and the road traffic accident is the

cause for the death. No doubt the said Doctor was not examined as Crl.R.P.No.938/2011

a witness, but admitting the post mortem report after marking it as

an exhibit at Ex.P-3 through other prosecution witnesses was not

disputed or objected to by the accused's side. Even the contents of

the post-mortem report has also not been disputed or denied from

the accused's side in the trial Court. In such a situation, when the

Post Mortem report at the time of marking it through other

prosecution witnesses and admitting it in the evidence was not

objected to, the mere non-examination of the medical Doctor would

not take away the evidentiary value of Ex.P-3 and also the ocular

evidence of PW-2 and PW-3. Therefore, the said argument of the

learned counsel for the petitioner on the point that the examination

of the medical Doctor was necessary in the instance case, is not

acceptable.

21. Both the Trial Court and the first appellate Court since

have appreciated all these evidence of the prosecution witnesses

both oral and documentary in proper perspective and have rightly

held that the prosecution has proved the alleged guilt against the

accused, I do not find any perversity, illegality or irregularity in the Crl.R.P.No.938/2011

said finding of both the trial Court as well as the first appellate

Court.

22. Learned counsel for the petitioner also canvassed an

argument that considering the facts and circumstances of the case

and more particularly, the family which the accused is possessing, a

lenient view be taken in so far as the awarding of sentence and he

also prays for extension of benefit under the Probation of Offenders

Act, 1958 to the accused.

The Trial Court had sentenced the accused to pay a fine of

`1,000/- for the offence punishable under Section 279 of IPC and in

default of payment of fine, to undergo simple imprisonment for

fifteen days. It had also sentenced him to undergo rigorous

imprisonment for a period of one year and to pay a fine of `5,000/-

for the offence punishable under Section 304-A of IPC and in

default of payment of fine, it ordered him to undergo further

rigorous imprisonment for a period of three months. The accused

was also ordered to pay a fine of `500/- for the offence punishable

under Section 134 read with 187 of the M.V. Act, and in default, to Crl.R.P.No.938/2011

undergo simple imprisonment for seven days. All the sentence of

imprisonment were ordered to run one after the other.

However, the first appellate Court though confirmed the

judgment of conviction passed by the Trial Court, but modified the

sentence wherein it sentenced the accused to undergo rigorous

imprisonment for a period of six months and also to pay a fine of

`5,000/- for the offence punishable under Section 304-A of IPC and

in default, to undergo one month of further rigorous imprisonment.

Thus, it has reduced the sentence of imprisonment considerably.

23. It is the sentencing policy that the sentence of

imprisonment ordered must be proportionate to the proven guilt

against the accused. It must be neither exorbitant nor a minimum

sentence only for name sake. In the instant case, the proven

offence against the accused involves an offence punishable under

Section 304-A of IPC which has taken the life of the deceased

Katagaiah who had not even reached his middle age and is said to

have been running in his 42nd year.

Crl.R.P.No.938/2011

24. Though the Trial Court has sentenced him to undergo

rigorous imprisonment for a period of one year for the proven

offence punishable under Section 304-A of the IPC, but the first

appellate Court has considered the circumstances pleaded by the

accused that the accused was married only on 03-06-2010 and has

got a small female child and it also considered the fact that he had

an ailing father who then was reported to have sustained a fracture

of T-12 Vertebra in a road traffic accident which is said to have

taken place on 18-10-1997. Therefore, the first appellate Court

as on the date of modifying the sentence had taken into

consideration about the road traffic accident said to have taken

place fourteen years prior to its judgment and has given relaxation

which resulted in reduction of sentence of imprisonment. At that

point of time, the accused might have been a newly married

person, but admittedly, now more than ten years have elapsed

after his marriage. As such, none of the grounds canvassed by the

accused for further reduction of the sentence would remain now

and what honour it was deserving has already been granted to it

by the first appellate Court. Therefore, I am of the view that the Crl.R.P.No.938/2011

modified order, reducing the sentence passed by the first

appellate Court being proportionate to the proven guilt of the

accused, no further leniency including the extension of the benefit

under the Probation of Offenders Act, if at all the same is

extendable, is also not warranted.

Accordingly, I proceed to pass the following:

ORDER

The Criminal Revision Petition stands dismissed as devoid of

merits.

Registry to transmit a copy of this order to both the Trial

Court and also the Sessions Judge's Court along with their

respective records forthwith.

Sd/-

JUDGE

BMV*