Sri Sophisab S/O Chowhusen vs State Of Karnataka
2022 Latest Caselaw 10032 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 30TH DAY OF JUNE, 2022

                             BEFORE

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

       CRIMINAL REVISION PETITION No.47 OF 2012

BETWEEN:

Sri. Sophisab
S/o. Chowhusen,
Aged about 26 years,
LRD C.V. Ramanagar,
Bangalore.
                                                   ..Petitioner
(By Sri. Prabhugoud B. Tumbigi, Advocate)

AND:

State of Karnataka,
Represented by Attibele Police,
through its Public Prosecutor.
                                                 .. Respondent

(By Sri. K. Nageshwarappa, High Court Govt. Pleader)

                                   ****
      This Criminal Revision Petition is filed under Section 397 of
the Code of Criminal Procedure, 1973, praying that the judgment
and order regarding sentence dated 05-02-2009 passed by the
Additional Civil Judge (Jr.Dn.) and JMFC Anekal in C.C.No.223/2007
and consequently the judgment dated 08-07-2010 passed by the
Principal District and Sessions Judge, Bangalore Rural District,
Bangalore in Crl.Appeal No.20/2009, may kindly be set aside and
                                                 Crl.R.P.No.47/2012
                                2


the petitioner may kindly be acquitted from the charges framed
against him in the ends of justice and equity.

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

                           ORDER

The present petitioner was accused in C.C.No.223/2007,

in the Court of the learned Additional Civil Judge (Jr.Dn.) and

Judicial Magistrate First Class, Anekal, (hereinafter for brevity

referred to as "the Trial Court"), who, by the judgment of

conviction and order on sentence dated 05-02-2009 of the

Trial Court, was convicted for the offences punishable under

Sections 279 and 304A of the Indian Penal Code, 1860

(hereinafter for brevity referred to as "the IPC") and was

sentenced accordingly.

Aggrieved by the same, the accused preferred an appeal

in Criminal Appeal No.20/2009, in the Court of the learned

Principal District and Sessions Judge, Bangalore Rural District,

Bangalore, (hereinafter for brevity referred to as the "the Crl.R.P.No.47/2012

Sessions Judge's Court"), which, after hearing both side,

partly allowed the appeal, by confirming the judgment of

conviction dated 05-02-2009 for the offences punishable

under Sections 279 and 304A of the IPC, but modified the

order on sentence, confining it to only for the offence

punishable under Section 304A of the IPC. It is challenging

the judgments passed by both the Trial Court as well the

Sessions Judge's Court, the accused/revision petitioner has

preferred the present revision petition.

2. The summary of the case of the prosecution in the

Trial Court was that, on the date 17-10-2006, at about 12:00

p.m. on Chandapura-Muthanalluru Road, behind Nallappa

Nursery, on Public Road, within the limits of the complainant

Police Station, the accused drove the motor vehicle (Lorry)

bearing Registration No.KA-13/4395 in a rash and negligent

manner and dashed against the motor vehicle (Scooter)

bearing Registration No.KA-03/W-1418, as a result of which Crl.R.P.No.47/2012

road traffic accident, two pillion riders of the Scooter by names

Smt. M. Eshwaramma and Master Nikhil fell down along with

the rider of the Scooter Sri. E. Rajachar and the right side

front wheel of the Lorry ran on the said Smt. M. Eshwaramma

and Master Nikhil, due to which, both of them died on the

spot. Hence, the accused has thereby committed the offences

punishable under Sections 279 and 304A of the IPC.

3. The accused appeared in the Trial Court and

contested the matter through his counsel. The accused

pleaded not guilty. As such, in order to prove the guilt against

the accused, the prosecution got examined in all seven (07)

witnesses from PW-1 to PW-7 and got marked documents

from Exs.P-1 to P-8. However, neither any witness was

examined nor any documents were got marked on behalf of

the accused.

4. The respondent - State is being represented by the

learned High Court Government Pleader.

Crl.R.P.No.47/2012

5. The Trial Court and the Sessions Judge's Court's

records were called for and the same are placed before this

Court.

6. Learned counsel for the accused/revision petitioner

and learned High Court Government Pleader for the

respondent - State are physically appearing in the Court.

7. Heard the learned counsels from both side. Perused

the materials placed before this Court including the impugned

judgments passed by both the Courts and also the Trial Court

and Sessions Judge's Court's records.

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

henceforth referred to as per their rankings before the Trial

Court.

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

only point that arise for my consideration in this revision

petition is:

Crl.R.P.No.47/2012

Whether the impugned judgments of conviction and order on sentence passed by the Trial Court as well the Sessions Judge's Court that, the accused has committed the alleged offences punishable under Sections 279 and 304A of the Indian Penal Code, 1860, warrants any interference at the hands of this Court?

10. Learned counsel for the revision petitioner (accused)

in his argument submitted that, he would not deny or dispute

the occurrence of the road traffic accident on the date, time

and place mentioned in the charge, involving a Lorry bearing

Registration No.KA-13/4395 and the Scooter bearing

Registration No.KA-03/W-1418 and also the death of

Smt. M. Eshwaramma and Master Nikhil, due to the injuries

sustained by them in the said road traffic accident. He

submits that, however, he would dispute the alleged rash and

negligent driving on the part of the driver of the Lorry and that

it was the accused who was driving the Lorry. He further

submits that, the only supporting witness i.e. PW-5 could not Crl.R.P.No.47/2012

able to prove that the driver of the Lorry was rash and

negligent in driving the offending Lorry.

12. Learned High Court Government Pleader for the

respondent submits that, PW-5 has categorically stated that

the accident in question has occurred at the fault of the driver

of the Lorry, who was driving the said Lorry with high speed,

that too, where the road was with good number of curves and

under repair. Thus, it goes to show that the driver of the

Lorry, who is none else than the accused/petitioner herein was

rash and negligent in driving the offending vehicle. He

submits that the evidence of PW-5 and PW-7 establishes that

it was the accused who was the driver of the offending Lorry

at the time of accident.

13. Among the seven witnesses examined by the

prosecution, it is PW-2 and PW-5 who are the material

witnesses, whom the prosecution examined, projecting them

as the eye witnesses to the incident.

Crl.R.P.No.47/2012

Among them, PW-2 (Rajanna), though has stated that

the accident, as on the date, time and place as alleged in the

charge has taken place, but also stated that he was not an

eye witness to the incident. The attempt made by the

prosecution to elicit more favourable statements from him by

subjecting him to cross-examination also did not yield any

result in favour of the prosecution. However, his evidence

that on the date, time and place mentioned in the charge, a

road traffic accident did occur involving a Lorry and a Motor

Cycle (Scooter) has remained un-denied.

14. PW-5 (Rajachari), who is also the complainant/first

informant in the matter has stated in his evidence that, on the

date 17-10-2006, while he was going on his Scooter, at about

11:30 a.m., along with his wife (M. Eshwaramma) and son of

his brother-in-law (Master Nikhil), towards Bangarpet, a Lorry

coming from the opposite direction with speed of about 30 to

40 kms. dashed to the Scooter, due to which, his wife Crl.R.P.No.47/2012

Smt. M. Eshwaramma and the said Master Nikhil fell down,

upon whom, the wheel of the Lorry passed over and both of

them died on the spot. He has stated that it was the accused

who was driving the Lorry at the time of accident. He alleged

that it was due to the fault of the driver of the Lorry, the

accident has occurred. He has also identified the accused in

the Court. He further stated that, after his complaint, the

Police visited the spot and drew a seizure panchanama and

seized both the Lorry and the Scooter, which panchanama he

has identified at Ex.P-5. In his cross-examination from the

accused's side, it was elicited from the witness that near the

place of accident, there was a railway level crossing (railway

gate) and after crossing the railway gate, when the witness

was going further, the accident had taken place. The

suggestion made to the witness in his cross-examination that,

on the spot of the accident, there is an 'L' shaped turn, has

been admitted as true by him. He also admitted suggestions

as true that on the date of accident, the road repair work was Crl.R.P.No.47/2012

going on and the crushed stones (jelly) were also spread on

the road. It was further admitted by him that, the left side of

the road was prepared by applying Tar. He further admitted a

suggestion as true that, due to the turning of the road in the

place of accident, he had to go slow.

15. It is based upon these admissions made by PW-5,

the learned counsel for the petitioner vehemently contended

that, when, according to the scene of offence panchanama at

Ex.P-5, the spot of the accident was a mud road and when

admittedly the said road had several curves and an 'L' shaped

turn at the spot of the accident, the question of rashness and

negligent driving on the part of the driver of the Lorry does

not arise.

16. No doubt, the scene of offence panchanama which is

supported by the evidence of PW-1 and PW-6 shows that the

place of accident was a mud road. No doubt, PW-5 has

admitted that after crossing the level crossing (railway gate), Crl.R.P.No.47/2012

while he was proceeding further, the accident has taken place.

It is also admitted by PW-5 that, the said road was comprising

few turns and one such 'L' shaped turn was there near the

spot of the accident. However, it cannot be ignored that the

very same witness has also stated that, in such a place, the

Lorry was being driven by the accused in a speed of 30 kms.

to 40 kms. When the very witness has admitted a

suggestion made from the accused's side that the road

condition was such that it was under repair and one was not

required to go fast on the said road, as such, being the rider

of a Scooter, he was going slow, he has noticed that the driver

of the Lorry was driving the Lorry with speed of 30 kms. to 40

kms. The said statement of PW-5 that, the driver of the Lorry

was coming with a speed of 30 kms. to 40 kms. has not been

denied or disputed in his cross-examination. Therefore, in

such a road, which is said to be a mud road, on which the

crushed stones (jelly) were said to have been spread and

where the road repair work was going on, which had made Crl.R.P.No.47/2012

even a two wheeler rider also to go slow in such a road, the

Lorry was being driven at a speed of 30 kms. to 40 kms., that

itself goes to show that the driver of the Lorry was least

bothered about the condition of the road and though the

condition of the road was demanding a very slow driving, he

was driving the heavy motor vehicle (Lorry) at a speed of 30

kms. to 40 kms. The same would be possible only if the

driver (accused) were to be rash and negligent in his driving.

As such, the very answers elicited in the cross-examination of

PW-5 about the condition of the road and also of the fact that

due to the said condition of the road, the rider of the Scooter

(PW-5) was also forced to go slow in such a road, the Lorry

was being driven with such speed of 30 kms. to 40 kms.,

which is obviously not a safe driving on such condition of road,

that too, where the road was said to be curvy and also having

an 'L' shaped turn in the spot of the accident.

Thus, the very evidence of PW-5, more particularly,

several statements elicited in his cross-examination from none Crl.R.P.No.47/2012

else than the accused's side itself gives more details about

the accident and establishes beyond doubt that the accident in

question has occurred solely due to the rash and negligent

driving of the Lorry by its driver. Thus, the argument of the

learned counsel for the petitioner (accused) that, the

prosecution could not able to prove the rash and negligent

driving on the part of the driver of the Lorry (accused), is not

acceptable.

17. The death of both Master Nikhil and

Smt. M. Eshwaramma due to the grievous injuries sustained

in the road traffic accident in question, is not in dispute.

Exs.P-1 to P-4 which are two inquest mahazars and two Post-

Mortem reports were marked without any objection and with

consent. The panchas and the inquest panchanamas are

shown to have opined that the death of Master Nikhil and

Smt. M. Eshwaramma was due to the injuries sustained in the

road traffic accident. The Post-Mortem reports at Ex.P-2 and Crl.R.P.No.47/2012

Ex.P-4 further mentions that both Master Nikhil and

Smt. M. Eshwaramma, apart from sustaining several grievous

injuries upon their body also had sustained injuries to their

head and fracture of left parietal and temporal bones of skull

and crushing of brain tissue, among other injuries, as such,

due to those injuries, both have succumbed.

18. In the Post-Mortem Examination Report at Ex.P-2,

the Doctor has opined that the death of deceased

Smt. Eshwaramma was due to shock and haemorrhage, due to

multiple head and body injuries, due to running over by the

vehicle and with respect to deceased Master Nikhil, in the

Post-Mortem Examination Report at Ex.P-4, it is mentioned

that his death was due to shock and haemorrhage and due to

crushing of brain tissue caused by crushing injury of head and

face.

The evidence of PW-5 which has remained un-denied

would go to show that both Master Nikhil and Crl.R.P.No.47/2012

Smt. M. Eshwaramma sustained grievous injuries when the

wheels of the Lorry are said to have run over them. Thus,

the death of Master Nikhil and Smt. M. Eshwaramma was due

to the injuries sustained by them in the road traffic accident in

question that occurred on the date 17-10-2006, involving the

offending Lorry bearing registration No.KA-13/4395, stands

established.

19. The last point of argument that was canvassed by

the learned counsel for the petitioner (accused) was,

regarding the identity of the accused as the driver of the

Lorry.

According to him, there is no reliable evidence to hold

that the accused was the driver of the Lorry, as on the date of

the accident. In that connection, when the evidence of PW-5,

who is the eye witness-cum-complainant in the case is

perused, it can be seen that the said witness, at more than

one place, in his evidence, has stated that, he has seen the Crl.R.P.No.47/2012

accused as the driver of the Lorry and has identified him in the

Court. He has stated that he has seen the accused at three

places i.e. firstly, in the place of accident, secondly, in the

Police Station and thirdly, in the Court, on the date of his

evidence. Thus, his (PW-5's) evidence that the accused was

the driver of the offending vehicle and he had seen him at the

spot of the accident, since could not be shaken in his cross-

examination, the evidence of PW-5, prima facie, establishes

that, it was the accused and accused alone who was the driver

of the offending Lorry in question.

The above evidence of PW-5 about the identity of the

accused as the driver of the Lorry is further corroborated by

the evidence of PW-7 (Smt. Lakshmamma), who is

undisputedly the owner of the offending Lorry in question.

After identifying the accused in the Court, she has stated that

he (the accused)was the driver of her Lorry. She has stated

that, it is after the accused came as the driver of her Lorry, Crl.R.P.No.47/2012

the accident in question has taken place. She specifically

stated in her examination-in-chief that at the time of accident,

it was the accused who was the driver of the Lorry. It is

heavily banking upon the said evidence of PW-7, the learned

High Court Government Pleader vehemently submitted that,

the identity of the accused, as the driver of the offending

vehicle, at the time of accident, has been established beyond

all reasonable doubts.

I do not find any reason not to accept with the said point

of argument put forth by the learned High Court Government

Pleader for the respondent. The best person who could say

about a person's identity as the driver of the offending vehicle

would be the eye witness to the incident and the employer of

that person as the driver of the vehicle.

In the instant case, both PW-5, as an eye witness and

PW-7 as the employer of the accused, have uniformly stated

that, it was the accused and accused alone who was the driver

of the offending Lorry at the time of the accident in question.

Crl.R.P.No.47/2012

Therefore, the last point of argument of the learned counsel

for the petitioner (accused) that, the identity of the accused as

the driver of the offending Lorry is not established, is also not

acceptable.

20. In the above circumstance, merely because the

Motor Vehicles Inspector in his Report at Ex.P-7 has stated

that, no fresh visible damage was found on the Scooter, itself

would not imbibe any doubt in the case of the prosecution. It

is also because, even according to the complainant, since the

Lorry dashed to the Scooter, his wife Smt. Eshwaramma and

child Master Nikhil fell down, upon whom, the front wheel of

the Lorry passed over. In the said process, it is not always

warranted that the Scooter should have necessarily sustained

any visible damages on it.

21. Since the Trial Court as well the Sessions Judge's

Court, after appreciating the evidence placed before them in

their proper perspective, have arrived at a conclusion, holding Crl.R.P.No.47/2012

the petitioner/accused guilty of both the alleged offences

punishable under Sections 279 and 304A of the IPC and the

Sessions Judge's Court, after re-appreciation of the materials

placed before it has rightly modified the sentence, making it

proportionate to the gravity of the proven guilt, I do not find

any reason to interfere in the impugned judgments and the

order on sentence under challenge.

Accordingly, I proceed to pass the following:

ORDER

[i] The Criminal Revision Petition stands

dismissed as devoid of merit.

[ii] The revision petitioner/accused to

surrender before the Additional Civil Judge (Jr.Dn.)

and Judicial Magistrate First Class, Anekal, within

forty-five (45) days from today and to serve the

sentence.

Crl.R.P.No.47/2012

Registry to transmit copies of this order to both the Trial

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

respective records, forthwith, for doing needful in the matter.

Sd/-

JUDGE

BMV*