Syed Munna vs The State By Robertsonpet Police
2022 Latest Caselaw 7299 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 23RD DAY OF MAY 2022

                         BEFORE

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

    CRIMINAL REVISION PETITION NO.792 OF 2011

BETWEEN:

SYED MUNNA
S/O SYED ELIYAZ
AGED ABOUT 37 YEARS
R/O MINI IBRAHIM ROAD,
ROBERTSONPET POST,
KGF.                                     ... PETITIONER

(BY SRI G.M.ANANDA, ADVOCATE)

AND:

THE STATE BY ROBERTSONPET
POLICE, KGF
                                         ...RESPONDENT

(BY SMT. K.P.YASHODA, HCGP )

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER
DATED:25.6.11 PASSED BY THE P.O., FTC, KGF IN
CRL.A.NO.12/11 AND ORDER DATED:5.2.11 PASSED BY THE
PRL.SENIOR C.J. AND JMFC, KGF IN C.C.NO.65/10.

       THIS CRIMINAL REVISION PETITION IS COMING ON FOR
HEARING       THROUGH       PHYSICAL     HEARING/VIDEO
CONFERENCING HEARING, THIS DAY THE COURT MADE THE
FOLLOWING:
                                                   Crl.RP.No.792/2011
                                 2


                             ORDER

The present petitioner was convicted for the offences

punishable under Sections 279, 337, 338 and 304(A) of IPC

read with 187 of the Indian Motor Vehicle Act, 1988 (hereinafter

for brevity referred to as 'IMV Act') and was sentenced accordingly

by the Court of the Principal Senior Civil Judge and JMFC at K.G.F.,

(Henceforth for brevity referred to as 'the trial Court') in

C.C.No.65/2010 by Judgment and order of sentence dated

05.02.2011.

Aggrieved by the same, the accused preferred an appeal

in Crl.A.No.12/2011 in the Court of Fast Track Court at K.G.F.,

(henceforth for brevity referred to as the 'Session Judge's Court)

which Court after hearing both side, vide its judgment dated

25.06.2011, dismissed the appeal confirming the judgment of

conviction and order of sentence impugned by the trial Court.

Aggrieved by both the judgments passed by the Trial

Court as well the learned Sessions Judges' Court, the accused

has preferred this revision petition.

2. The Trial Court and Sessions Judge's Court's

records were called for and the same are placed before this

Court.

Crl.RP.No.792/2011

3. Heard the arguments from both side. Perused the

materials placed before this Court including the Trial Court and

Sessions Judge's Court's records.

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

henceforth referred to as per their rankings before the Trial

Court.

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

only point that arise for my consideration in this revision

petition is:

Whether the conviction of the accused for the offence punishable under Sections 279, 337, 338 and 304(A) of IPC, r/w 187 of the IMV Act and the order on sentence passed by the trial Court and confirmed by the Sessions Judge's Court suffers with any infirmity or perversity, warranting interference at the hand?

6. The summary of the case of the prosecution is that

on 14.08.2009 at about 9.45 p.m. while the deceased Sadiq

was going on his bullock cart along with CW2(PW2)-Seena on

Swarananagar, within the limits of the complainant police

station, a lorry bearing registration No.CAM-3702 being driven Crl.RP.No.792/2011

by the present petitioner (accused) in a rash and negligent

manner came from the opposite side and dashed against the

bullock cart, due to which accident, both the rider-Sadiq and

the inmate-Seena fell down and sustained grievous injuries.

However, while shifting to a higher hospital for treatment, the

injured Sadiq succumbed to the injuries. Accordingly, based

upon a complaint lodged by PW1-Sri Sampath, a charge sheet

for the offences punishable under Sections 279, 337, 338 and

304(A) of IPC read with 187 of the IMV Act, came to be filed

against the accused. After trial, the accused was held guilty of

the alleged offences and was sentenced accordingly.

L

7. The learned counsel for the petitioner, in his brief

arguments submitted that he is not disputing the occurrence of

the accident, date, time and place and the charge sheet and

also of the fact that the lorry bearing registration No.CAM-3702

being driven by the accused was involved in the accident. He

further submitted that he also does not dispute the fact that in

the said accident, the rider of the bullock cart-sadiq sustained

injuries and succumbed to death and PW2-Sri Seena sustained

grievous injuries. He submitted that however, he would deny

and dispute that the said accident has occurred due to rash and Crl.RP.No.792/2011

negligent driving of the lorry by the present petitioner. He,

further submitted that admittedly it was raining at the time of

the accident at the spot. As such, the roads were slippery due

to which the bullocks pulling the cart have slipped in their steps

and dashed to the lorry. He also submitted that admittedly

there were few road humps on the road, as such, it was

impossible to drive lorry in a rash and negligent manner. With

this, he submitted that both the trial Court and the learned

Sessions Judge's Court have not considered these facts. As

such, interference is warranted by this Court.

8. Learned High Court Government Pleader for the

respondent in her brief arguments submitted that PWs.1, 3 and

5 admittedly are the eye witnesses to the incident. All these

witnesses have specifically and categorically stated that the

accident occurred solely due to rash and negligent driving of the

lorry by the present accused. The cause for the accident has

not been explained by the accused either in the

cross-examination of the prosecution witnesses or in his

statement recorded in 313 Cr.P.C. Admittedly, due to the

dash given by the lorry to the bullock cart one of its side has

also got damaged. The oral as well as documentary evidence Crl.RP.No.792/2011

clearly go to establish that the accident in question which has

led to the death of Sri Sadiq and injured PW2, has occurred

solely by the rash and negligent driving of the lorry by the

present petitioner.

9. To prove the alleged guilt against the accused, the

prosecution got examined nine witnesses-PWs.1 to 9 and got

marked documents from Exs.P1 to P10(b). Among these

prosecution witnesses, PWs.1, 3 and 5 claim themselves to be

the eye witnesses to the alleged incident. PW1 is the first

informant/complainant in the matter.

10. PW1, in his evidence, has stated that on the date of

accident he was going on the very same road where the

offending vehicle was going in his auto rickshaw. He apart from

being a driver of the auto rickshaw owns two auto rickshaws

and runs them for hire. At about 15 feet ahead of him, the

bullock cart being ridden by Sadiq was going at 9.45 in the

night on 14.08.2009, he saw the offending lorry coming from

the opposite direction, driven in a rash and negligent manner by

its driver, dashed to the bullock cart where deceased Sadiq and

PW2-Seena were inmates. Due to the said accident, the bullock Crl.RP.No.792/2011

cart was turtled and the wooden poles loaded in it scattered on

the road, sadiq sustained serious injuries in the accident, so

also the other inmate Seena. Himself joined by the other

people who were also present there, shifted the injured to the

nearest hospital. However, at the advice of the Doctor, they

attempted to shift the injured Sadiq to higher hospital but the

said Sadiq succumbed to the injures on the way to the hospital.

He has categorically stated that he had seen that it was the

accused himself who was driving the lorry at the time of

accident. He has identified the accused in the Court and

further stated that immediately after the accident the driver,

who halted the lorry at about 25 feet after the place of accident,

did not attend to the injured, but ran away from the spot.

11. PW1 was subjected to a detailed cross-examination

from the accused's side. Even in his cross-examination also he

adhered to his original version stating that the accident was

occurred due to rash and negligent driving of the lorry by the

accused. He has also stated that there was availability of the

light, as such, he identified that the accused was driving the

lorry. He further stated that the lorry being driven by the

accused was running at a high speed of 80 Kms. per hour. He Crl.RP.No.792/2011

has stated that after ascertaining the details of the injured and

their names and address, he lodged a complaint on the next

date since immediately after the accident he was busy in

getting medical attendance and treatment to the injured in the

night.

12. PW2 (CW2) Seena has stated in his examination-in-

chief that on 14.08.2009 while the deceased Sadiq whom he

knows since about ten years was riding the bullock cart and

that he was also an inmate in the said bullock cart. The

bullock cart was loaded with wooden poles which were being

transported at his instance from Saw Mill to his place.

However, while going towards Roobertsonpet the offending

vehicle, lorry bearing No.CAM-3702 which was being driven by

the accused in a rash and negligent manner and in a high

speed, came from the opposite side and dashed to the bullock

cart. Due to the said accident, both himself and Sadiq fell on

the ground. However, the lorry ran over the said Sadiq. It is

also stated that he sustained fracture of his teeth and other

injuries in the accident and both of them were shifted by

CWs.1, 3 and 4 to Government Hospital at K.G.F. from where

the injured Sadiq was shifted to S.N.R. Hospital at Kolar for Crl.RP.No.792/2011

treatment, but the injured Sadiq succumbed to the injuries on

the way. This witness identified the accused as the driver of

the offending vehicle. In his detailed cross-examination, PW2

has adhered to his original version and given more details as to

from which place to which place the goods were being

transported and as to how he secured those wooden poles which were

being transported in the bullock cart. Though he stated that at the

time of accident, it was drizzling, but categorically stated that at

the time of accident the bullock cart was moving on the left side

of the road. He stated that from the place of accident he saw

the lorry which dashed against him, he identified the driver in

the light which was available there. He specifically denied that

there were any speed breakers or road humps on the road. The

suggestions made to him in the cross-examination is that the

Sadiq as a rider of the bullock cart fell down due to slippery

road by himself and has sustained injuries.

13. PW.3-Gouse Khan and PW.5-Imran have also stated

that at the time of accident they were returning to their house

from mosque on their two wheeler and at that time between

11th and 12th cross, on the main road of Swarananagar, they

saw the offending vehicle lorry being driven by its driver in a Crl.RP.No.792/2011

rash and negligent manner coming from the opposite direction

and dashed against the bullock cart wherein the deceased

Sadiq and PW2-Seena were inmates. They have also stated

that they assisted PW1 in attending to the injured and shifting

them to the nearby hospital, however, while Sadiq being

shifted to higher medical centre succumbed to the injuries.

Both of them have identified the accused and given more

details about the manner of occurrence of the accident in

their cross-examination. PW3 also denied a specific suggestion

made to him in his cross-examination that it was due

to the rain, the bullocks pulling the cart slipped their steps

and dashed to the lorry, but re-iterated that the

accident in question has occurred solely due to rash and

negligent driving of the lorry by the accused.

14. PW.4-the owner of the bullock cart has stated about

Sadiq being entrusted with the task of riding the bullock cart

and he meeting with a road traffic accident and succumbing to

the injuries on the ill-fated day.

      15.   PW.6      and    PW.1    both      have   stated    about      the

Investigation    Officer,     drawing       the     scene      of     offence,
                                                   Crl.RP.No.792/2011

panchanama as per Ex.P2. PWs.7, 8 and 9 as part of the

investigation have spoken about the role played by them from

the stage of registration of the complaint up to the filing of the

charge sheet. In the process, they have also got marked the

inquest panchanama at Ex.P3, the post mortem report at Ex.P4,

the wound certificate pertaining to PW2 at Ex.P5, the FIR at

Ex.P8, the rough sketch of the place of accident at Ex.P9 and IMV

Report at Ex.P10.

16. A careful perusal of the evidence of PWs.1, 2, 3 and

5 makes it very clear that, the accident in question has

occurred on the date, time and place mentioned in the charge

sheet and the accident has involved a bullock cart being ridden

by the deceased Sadiq at the time of accident and the offending

vehicle being lorry bearing registration No.CAM-3702. All

these witnesses have identified the accused as the driver of the

offending vehicle at the time of the accident. These witnesses

have further stated that due to the said accident, the rider of

the bullock cart Sadiq sustained grievous injuries and

succumbed to it on the same day and PW2 sustained grievous

injuries and was given medical treatment by the Doctor. The

wound certificate at Ex.P5 shows that PW2 was given medical Crl.RP.No.792/2011

treatment by the Doctor and that after recording the history of

incident as a road traffic accident, the Doctor has also noticed

several wounds including the fracture of teeth and has opined

that the injuries mentioned by him in the wound certificate at

Sl.Nos.7, 8 and 11 are grievous in nature. The said exhibit as

well as the evidence of PW2 about the injuries sustained by him

and that they were grievous in nature, has not been denied or

disputed by the other side. The inquest panchanama at Ex.P3

shows that the panchas have opined that the death of the

deceased Sadiq was due to road traffic accident. In the post

mortem report at Ex.P4, the Doctor, apart from noticing injuries

found on the deceased which mainly includes fracture of right

thigh femur and injury over right parital region, has opined

that those injuries are ante mortem in nature and the Doctor

who conducted autopsy has opined the cause of death as due to

injury to brain (contusion) as a result of head injury, secondary

to road traffic accident as alleged. The said undisputed

documents corroborates the evidence of PWs.1, 2, 3 and 5 that

the injuries sustained by Sadiq was due to the road traffic

accident and due to those injuries sustained by him, the

said Sadiq lost his breath. Thus, the death of the deceased Crl.RP.No.792/2011

Sadiq is also established to be a consequence of the multiple

injuries sustained by him in the road traffic accident.

17. The evidence of PWs.1, 2, 3 and 5 further

establishes that it was the accused alone who was driving the

lorry bearing registration No.CAM-3702 at the time of accident.

The said fact has not been seriously disputed by the petitioner.

18. The contention of the petitioner and the arguments

of his learned counsel that the prosecution has failed to

establish the alleged rash and negligent driving on the part of

the petitioner requires careful analysis.

19. As observed above, PWs.1, 2, 3 and 5 are all eye

witnesses to the alleged incident, who have uniformly and in

unequivocal terms stated that it was the accused alone who

was cause for the accident since he was driving his lorry in a

high speed and in a rash and negligent manner. Even though

an attempt was made from the accused's side to show that

there existed certain road humps and speed breakers near the

place of accident, which makes impossible for any motor vehicle

to go in high speed, it has not been admitted by any of the

witnesses to whom such suggestion was made.

Crl.RP.No.792/2011

20. As observed above, a suggestion to that effect was

made only to PWs.2 and 3. Both of them have categorically

denied the said suggestion. In fact, PW3 admitted the

suggestion as true that the main road leading towards the

temple has got road humps at four places, but neither in his

evidence nor in the evidence of the prosecution witnesses, the

accused was able to establish that those road humps were

either near to the place of accident or were cutting the velocity

of the speed of the vehicle at the place of accident. Merely

because some road is said to have some road humps, certainly

that would not by itself leads to any inference that those road

humps would in any manner result in reducing the speed of the

motor vehicle at the place of the accident. When PW1, who

himself admittedly an auto rickshaw driver owning more than

one auto rickshaw in his name, has stated that he saw the lorry

was being driven at a speed of 80 Kms. per hour and the said

statement being not specifically denied in his cross-

examination, it goes to show that another driver of the motor

vehicle also has noticed that the accused was driving the

offending vehicle in a rash and negligent manner. There is

nothing on record to show that either the road was slippery or Crl.RP.No.792/2011

the bullocks pulling the cart slipped their steps towards the

lorry. Further, there is nothing on record to show that due to

rain and the alleged slippery of the road, the rider of the

bullock cart himself lost control and fell down on the ground and

sustained injures and thus, even the defence taken by the

accused on those lines also could not be established since none

of the witnesses to whom the suggestions were made have

admitted those suggestions.

21. On the other hand, the rough sketch prepared by

the Investigation Officer, which is at Ex.P9 also corroborates the

ocular evidence of PWs.1, 2, 3 and 5 and clearly goes to

establish that the accident in question has occurred solely due

to rash and negligent driving of the lorry by the present

petitioner.

22. It is appreciating these evidences both oral and

documentary placed before them, since both the trial Court and

the Sessions Judge's Court have rightly held that the accused as

guilty of the alleged offences, I do not find any reason to

interfere in their finding.

Crl.RP.No.792/2011

23. It is the sentencing policy that, the sentence

ordered must be proportionate to the gravity of the proven guilt

of the accused.

24. In the instant case, the trial Court after convicting

the accused guilty for the offence has sentenced him to undergo

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

of Rs.1,000/- , in default of payment of fine to further undergo

simple imprisonment for 10 days for the offence punishable

under Section 279 of IPC.

For the offence punishable under Section 337 of IPC, the

trial Court has sentenced the accused to undergo simple

imprisonment for a period of three months and to pay fine of

Rs.500/- and in default of payment of fine, to further undergo

simple imprisonment for five days.

For the offence punishable under Section 338 of IPC, the

accused has been sentenced to undergo simple imprisonment

for a period of six months and to pay a fine of Rs.1000/- and in

default of payment of fine, to further undergo simple

imprisonment for ten days.

For the offence punishable under Section 304(A) of IPC,

the accused has been sentenced to undergo simple Crl.RP.No.792/2011

imprisonment for a period of one year and to pay fine of

Rs.2,000/- and in default of payment of fine, to further undergo

simple imprisonment for 20 days.

For the offence punishable under Section 187 of IMV Act,

the accused has been sentenced to undergo simple

imprisonment for a period of three months and to pay fine of

Rs.500/- and in default of payment of fine, to further undergo

simple imprisonment.

All these sentences were also ordered to run concurrently.

25. In the facts and circumstances of the case, more

particularly, considering the gravity of the offence where an

innocent person sustained injuries and succumbed to it and

another innocent person sustained grievous injuries, I am of the

view that, the sentence ordered is proportionate to the gravity

of the proven guilt. As such, the order of sentence also does

not call for interference at the hands of this Court. Thus, there

being no infirmity, perversity, illegality and irregularity in the

impugned judgments, I do not find any reason to interfere with

the order.

Crl.RP.No.792/2011

26. Accordingly, I proceed to pass the following:

ORDER

The criminal revision Petition stands dismissed as devoid

of merit.

Registry to transmit a copy of this order each to the trial

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

respective records immediately.

Sd/-

JUDGE

TL