Karnataka High Court
Sri Ashok N Pai vs The State Of Karnataka on 23 August, 2023
Bench: Shivashankar Amarannavar
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CRL.A No. 1326 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 1326 OF 2011
BETWEEN:
SRI ASHOK N PAI
S/O NARASIMHA PAI
AGED ABOUT 41 YEARS
AT PRESENT RESIDING AT No.9
12TH CROSS, KALIDASA ROAD
V V MOHALLA
MYSORE -570 002.
...APPELLANT
Digitally signed by
LAKSHMINARAYANA
MURTHY RAJASHRI (BY SRI SATYANARAYAN S CHALKE, ADVOCATE FOR
Location: HIGH SRI MOHAN BHAT, ADVOCATE)
COURT OF
KARNATAKA
AND:
THE STATE OF KARNATAKA
REPRESENTED BY STATION HOUSE OFFICER
K R TRAFFIC POLICE STATION
MYSORE.
...RESPONDENT
(BY SRI RANGASWAMY R, HCGP)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED:8.12.11 PASSED BY THE III
ADDITIONAL S.J., MYSORE IN S.C.No.157/11 - CONVICTING
THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 279 AND
SECTION 304A OF IPC. AND U/S 185 IMV ACT AND ETC.,
THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 1326 of 2011
JUDGMENT
This appeal is filed against the judgment of
conviction and order of sentence dated 08.12.2011 passed
in S.C. No. 157/2011 by the III Additional Sessions Judge,
Mysuru, convicting the appellant - accused for offence
punishable under Section 304-A and 279 of IPC and
Section 185 of Motor Vehicles Act, 1988 (for the sake of
brevity hereinafter referred to as the M.V. Act, 1988). The
appellant - accused has been sentenced to undergo simple
imprisonment for a period of six months and to pay fine of
Rs.50,000/- for offence under Section 304-A IPC, in
default to undergo simple imprisonment for three months
for offence under Section 304-A of IPC; to pay of Rs.500/-
for offence under Section 279 of IPC and in default to
undergo simple imprisonment for a period of two months
and further sentenced to pay fine of Rs.1,000/- for offence
under Section 185 of MV Act, 1988 and in default to
undergo simple imprisonment for a further period of three
months.
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2. Factual matrix of the case is that on 01.02.2010
at about 09.00 pm, M. Lokesh husband of P.W.2 (C.W.2) -
Smt. Mahalakshmi was walking on the left side of the road
near Honge Tree on Vishwamanava Double Road and at
that time the appellant - accused being the driver of Tata
Indica Car bearing No. KA09-N-9743 drove the said
vehicle after consuming alcohol in a rash and negligent
manner knowing fully well about the consequences and
dashed the vehicle against said M. Lokesh. Due to that M.
Lokesh sustained grievous injuries and immediately he
was shifted to Kamakshi Hospital, Mysuru and from there
he was taken to BGS Apollo Hospital and later he was
admitted to B.M. Hospital, Mysuru and he died on
23.06.2010 due to the injuries sustained in the said
incident. Immediately after the accident, the appellant -
accused was taken to Kuvempunagar Traffic Police Station
and he was subjected to Alcometer Test and found that he
had consumed alcohol. Afterwards the accused was sent to
K.R. Hospital Mysuru and blood and urine samples of the
appellant - accused was taken by the Medical Officer and
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later the blood and urine samples of the appellant -
accused were sent o FSL and it revealed that the appellant
- accused had consumed alcohol in excess of the
permissible limit. After coming to know about the incident,
P.W.15 ( C.W.24) went to Kamakshi Hospital where the
deceased M. Lokesh was taken and P.W.2 gave a written
complaint about the incident. On the basis of the
complaint, case came to be registered against the
appellant - accused. After investigation charge sheet came
to be filed for offence under Section 279 and 304-II of IPC
and Section 185 of M.V. Act, 1988. Thereafter, the case
was committed to the Sessions Court. The prosecution
examined 16 witnesses as P.W.1 to P.W.16 and got
marked Ex.P.1 to Ex.P.20. The statement of the appellant
- accused came to be recorded under Section 313 of
Cr.P.C. After hearing arguments on both the sides, the
trial Court framed points for consideration and convicted
the appellant - accused for the offence under Section 304-
A and 279 of IPC and Section 185 of M.V. Act, 1988. Said
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judgment of conviction and order of sentence has been
challenged by the appellant - accused in this appeal.
3. Heard arguments of learned counsel for appellant
- accused and learned HCGP for respondent - State.
4. Learned counsel for the appellant - accused
argued that the injured died after four and half months of
the accident and the prosecution has not established that
the death of the injured M. Lokesh is as a result of the
accident. The trial Court while convicting the appellant -
accused for offence under Section 304-A of IPC has not
considered the ingredients of the said offence. The
ingredients of offence under Section 304-A are not
attracted. The Doctors who treated the injured in four
different hospitals were not examined and the Doctors who
are examined, namely, P.W.1, P.W.8 and P.W.10 are the
Doctors who have not treated the injured. The Doctor who
conducted the postmortem examination over the dead
body of the deceased has not stated any injury on the
head of the deceased in his PM report. The injured has
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been shifted from one hospital to another hospital against
medical advice. The prosecution has failed to establish
why treatment was not fruitful. There is no explanation for
shifting the injured from one hospital to other hospital.
The Doctor who treated the injured in Mission Hospital has
not been examined. The death of the injured is not
because of the accident. The ingredients of offence under
Section 304-A of IPC are not established. He further
argued that negligence and rashness to be punishable
under Section 304-A must be attributable to a state of
mind wherein the criminality arises because of no error in
judgment but of a deliberation in the mind risking the
crime as well as the life of the person who may lose his life
as a result of the crime. Section 304-A discloses that
criminality may be that apart from any mens rea, there
may be no motive or intention still a person may venture
or practice such rashness or negligence which may cause
the death of other. The death so caused is not the
determining factor. On that point he placed reliance on the
decision of the Hon'ble Apex Court in the case of Naresh
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Giri Vs. State of M.P. reported in 2008 (1) SCC 791. He
further argued that in a prosecution for an offence under
Section 304-A, the mere fact that an accused contravenes
certain rules or regulations in the doing of an act which
causes death of another, does not establish that the death
was the result of a rash or negligent act or that any such
act was the proximate and efficient cause of the death.
Whether the appellant's act is the direct result of a rash
and negligent act and that act was the proximate and
efficient cause without the intervention of another's
negligence is not considered by the trial Court. On that
point he placed reliance on the decision of the Hon'ble
Apex Court in the case of Ambalal d. Bhatt Vs. State of
Gujarat reported in 1972 (3) SCC 525. He further
argued that rash and negligent act referred to Section
304-A means an act which is an immediate cause of death
and not an act which can, at best, said to be a remote
cause of death. No doubt, the act of negligence would be
the driving of any vehicle in a rash and negligent manner
so as to endanger human life or likely to cause harm or
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injury to hurt a person where no harm has actually been
caused. The requirement is that the death of any person
must have been caused by the accused by any rash or
negligent act. In other words, there must be proof that the
rash or negligent act of the accused was the proximate
cause of death. There must be a direct nexus between the
death of the person and the rash and negligent act of the
accused. The prosecution has failed to garner any material
to show that there is a direct nexus between the death of
the injured and the alleged act of negligence of the
appellant. On that point he placed reliance on the decision
of coordinate Bench of this Court in the case of B.E.
Chandrashekar and others Vs. State of Karnataka, by
Peenya Police reported in ILR 2007 Kar. 809. He
further argues that there are material contradictions with
regard to the spot of accident in the evidence of eye
witnesses, namely, P.W.4 and P.W.5, in the evidence of
P.W.2 - wife of the injured, in the entry in Ex.P.9 - MLC
register and in the evidence of P.W.11 and 12 who are
Police constables who were on duty near the place of
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accident. The seizure of liquor bottle from the car of the
appellant - accused has not been established. The result
of Alcometer test at different points varies from one
another. The Police constable who took the appellant -
accused to the hospital for collection of blood and urine
sample is different from the person noted in the record of
the hospital. On considering the report of Motor Vehicle
Inspector (P.W.14), as per Ex.P.14, if there is rash and
negligent driving in a high speed, there is no chance of the
person coming on the car dashing the wind screen. The
Doctor who collected the blood and urine sample - P.W.9
has not identified the appellant - accused while giving
evidence. The quantum of alcohol found in the alcometer
test and found in the FSL report - Ex.P.19 are different.
The trial Court without considering all these aspects has
erred in convicting the appellant - accused for the offence
under Sections 279 and 304-A of IPC and Section 185 of
M.V. Act, 1988. With this he prayed to allow the appeal.
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5. Per contra, learned HCGP appearing for the
respondent - State would contend that the evidence of
two eye witnesses, namely, P.W.4 and P.W.5 establishes
the rash and negligent driving by the appellant - accused
and dashing of the car to the injured. The appellant -
accused drove his car under intoxication and the same has
been established by the report - Ex.P.19 and alcometer
text (Ex.P.17). The evidence of P.W.11 and P.W.12 also
establishes that the appellant - accused was under
intoxication and he was not able to stand properly after
the incident. The evidence of P.W.2, P.W.11, P.W.12,
P.W.4 and P.W.5 clearly establishes that the accident has
occurred on Vishwamanava jodi Road near Honge tree. He
further argues that the death of the injured - M. Lokesh
was as a result of the head injury sustained in the accident
and he was all along in the hospital from the date of
accident till his death and there are no other intervening
acts which resulted in the death of the injured. The Doctor
of Apollo Hospital (P.W.10) has deposed and also it is
mentioned in Ex.P.12 - wound certificate that the injured
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has sustained severe injury with fracture of left zygomotic-
orbital complex. Even the Doctor who conducted the PM
examination (P.W.13) and his report - Ex.P.13 establishes
that the death of the injured is due to head injury (Diffuse
axonal injury) sustained due to blunt force impact. He
further argues that the trial Court considering all the
available records and appreciating the evidence properly
has rightly convicted the appellant - accused. With this he
prayed to dismiss the appeal.
6. Learned High Court Government Pleader
submits that due to rash and negligent act of this
appellant - accused, PW2 has lost her husband and prays
for confirming the sentence imposed for the offence under
Section 304A of IPC.
7. On the grounds made out and considering the
arguments advanced, the following point arise for my
consideration.
Whether the trial Court erred in convicting
the appellant - accused for the offence under
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Sections 304-A and 279 of IPC and Section 185
of M.V. Act, 1988?
8. My answer to the above point is in the negative for
the following reasons.
9. As per the case of the prosecution the appellant -
accused was drunk at the time of the accident and he
drove his red colour Tata Indica car bearing No. KA09-N-
9743. As per the evidence of P.W.3, P.W.4, P.W.5, P.W.11
and P.W.12 the appellant - accused was in the car after
the accident and he was in such state that he was not able
to stand properly. Breath analyzer test has been
conducted by alcometer and the reports are at Ex.P.17.
There are two reports in Ex.P.17; one is conducted at
09.40 pm on 01.02.2010 and another at 10.11 pm. In the
report conducted on 01.02.2010 at 09.40 pm the alcohol
level is at 193 mg/ml. In the report conducted at
01.02.2010 at 10.11 pm the alcohol level is 045 mg/ml.
The appellant - accused was taken to K.R. Hospital for
collecting the urine and blood samples. P.W.9 - the Doctor
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has collected the blood and urine sample and sent the
same for examination and FSL report is at Ex.P.19.
The quantum of alcohol as noted in Ex.P.19 is 75.74
mgs/100 ml of blood and 100.74 mgs/100 ml of urine. As
per Section 185 of MV Act, 1988, if the alcohol detected
exceeds 30 mgs/100 ml of blood either by breath analyzer
or in the test conducted in the laboratory then the offence
under Section 185 of the M.V.Act, 1988 is attracted. The
reports of the breath analyzer test conducted with the help
of alcometer would reveal that the level of alcohol is
exceeding 30 mgs/100 ml. Even in the laboratory report -
Ex.P.19 the quantum of alcohol found in the blood of the
appellant - accused is 75.74 mgs/100 ml. Merely because
the tests show different levels of alcohol in the two breath
analyzer test report conducted by alcometer it cannot be
said that there was no alcohol exceeding the limit of 30
mgs/100 ml of blood.
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10. Learned counsel for appellant - accused argued
with regard to the Police officials who took the appellant -
accused to K.R. Hospital for collecting blood and urine
sample. Even though there are minor contradictions with
the Police constable who took the appellant - accused to
K.R. Hospital for collecting the blood sample, it will not
affect the case of the prosecution. Learned counsel for the
appellant - accused contends that the Doctor who collected
the blood and urine sample of the appellant - accused has
not identified the appellant - accused at the time of giving
evidence. He has given explanation in his evidence that he
is not able to identify the appellant - accused as he has
conducted several tests of several persons and therefore
he is unable to identify the appellant - accused. Ex.P.10 is
the requisition received by P.W.10 - Medical Officer for
collecting the blood and urine sample of the appellant -
accused. Ex.P.11 is the proforma for collection of blood
and urine sample. In Ex.P.10 and Ex.P.11 there is specific
mention of the name of this appellant - accused to show
whose blood and urine samples have been collected on
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01.02.2010 at 10.35 pm. P.W.12 - P.C. No. 257 has
deposed that he and P.C. No. 636 took the accused to the
K.R. Hospital for collection of blood and urine sample.
P.W.9 - Medical Officer of K.R. Hospital has also deposed
that P.C. No. 636 brought the appellant - accused for
collection of blood and urine sample. Said evidence clearly
establishes that the appellant - accused was taken to K.R.
Hospital and P.W.9 - Medical Officer has collected the
blood and urine sample. Therefore, considering the above
aspects the trial Court has rightly held that the appellant -
accused has committed an offence punishable under
Section 185 of the M.V. Act, 1988.
11. As per the case of the prosecution the accident
has taken place near Honge tree of Vishwamanava Jodi
Road. P.W.2 on coming to know about the accident
immediately went to the spot and found her husband lying
injured in the spot which is near Honge tree of
Vishwamanava Jodi Road. Ex.P.4 is the spot mahazar and
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as per the said mahazar the spot of accident is situated
near Honge tree of Vishwamanava Jodi Road. Ex.P.7 is the
sketch of the spot prepared at the time of drawing spot
mahazar. In that also the spot has been shown as `near
Honge tree of Vishwamanava Jodi Road'. P.W.2 has
deposed that after admitting her husband in BGS Apollo
Hospital at 11.00 pm she went and showed the spot to the
Police at the of preparing the spot mahazar. The spot
mahazar is prepared between 11.00 pm and 11.45 pm.
Learned counsel for appellant - accused has argued that as
per the records of Apollo Hospital the injured was admitted
to the Hospital at 11.30 pm and the evidence of P.W.2 of
showing the spot in between 11.00 pm and 11.45 pm is
not reliable. P.W.2 has specifically stated that after
admitting her husband in Apollo Hospital she went and
showed the spot to the Police and they prepared the spot
mahazar. P.W.11 is the Police constable on duty in signal
and on receiving the message of accident he came to the
spot and saw the injured. P.W.12 is also Police constable
on duty at Channaiah junction situated near the incident
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and he has deposed that on receiving the message he
went to the spot. Both P.W.11 and P.W.12 have stated
that the spot is situated near Honge tree of Vishwamanava
Jodi Road. The sketch - Ex.P.7 prepared at the time of
drawing spot mahazar also reveal that the spot is situated
near Honge tree of Vishwamanava Jodi Road. Therefore,
based on the said evidence on record the prosecution has
established that the spot of accident is near Honge tree of
Vishwamanava Jodi Road.
12. P.W.4 and P.W.5 are eye witnesses to the
accident. Both of them have deposed that they were
sitting by the side of Vishwamanava Jodi Road and at that
time red colour Indica car came in high speed in zigzag
manner and dashed to a pedestrian and they went and
saw and identified the injured as M. Lokesh. They also
deposed that the driver of the said car was the appellant -
accused and he was drunk and was not able to stand
properly. Except that there were more number of vehicles
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in the said road nothing material has been elicited in their
cross-examination to disbelieve their testimony. The
evidence of P.W.4 and P.W.5 clearly establishes that the
accused drove the car in high speed and in zigzag manner
and dashed to the injured M. Lokesh. The appellant -
accused and his car was found at the spot and there was
damage to the wind screen on the left side of front side of
the car. P.W.5 and P.W.6 have identified the car and the
appellant - accused. The car has been examined by the
Motor Vehicle Inspector who has been examined as P.W.4.
He has given report as per Ex.P.14. In Ex.P.14 there is a
mention that front left side shape damaged and front left
wind screen glass damaged. The Motor Vehicle Inspector
has also opined that the occurrence was not due to any
mechanical disorder of the vehicle.
13. Learned counsel for the appellant - accused
further argued that if a car is driven in high speed and if it
dashes a person, the person will fall at a distance and it
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will not cause damage to the wind screen. Said argument
of the learned counsel for the appellant - accused cannot
be accepted as there are chances of the person to whom
the vehicle is dashed falling on the wind screen and the
wind screen getting damaged at that time. Apart from that
there is damage on the front side of the said car.
Considering all these aspects, the trial Court has rightly
held that the appellant - accused drove his vehicle after
consuming alcohol in a rash and negligent manner and
dashed to M. Lokesh and he sustained injuries. The trial
Court has rightly held that the appellant - accused
committed an offence under Section 279 of IPC.
14. In a prosecution, for an offence under Section
304-A of IPC, the Court has to examine whether the
alleged act of the accused is the direct result of a rash and
negligence act and that act was to the proximate and
efficient cause to the death without interference of other's
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negligence. The essential ingredients of Section 304-A of
IPC are as under:
(i) Death of a person
(ii) Death was caused by the accused during any
rash or negligence act.
(iii) Act does not amount to culpable homicide.
15. The charge framed against the appellant -
accused was for the offence under Section 304 Part-II of
IPC. The Trial Court has held that the death of the injured
Sri.Lokesh is not a culpable homicide and it does not
attract the offence under Section 304 Part-II of IPC. The
Trial Court held that the death was caused by the accused
during his rash and negligent driving of his Indica Car and
convicted him for the offence under Section 304-A of IPC.
16. The accident has occurred on 01.02.2010 at
9.00 p.m. The injured Lokesh died on 23.06.2010 at
7.00 am. Learned counsel for the appellant has argued
that the death of the injured Lokesh is not causa causans
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of the accident and therefore, the offence under Section
304-A of IPC is not attracted.
17. The Hon'ble Apex Court in the case of Kurban
Hussein Mohammedali Rangwala Vs. State of
Maharashtra reported in (1965) 2 SCR 622 has held
that the death must be the direct result of a rash or
negligent act and that act was the proximate and efficient
cause without intervention of another's negligence. It must
be the causa causans and it is not enough that it may
have been the causa sine qua non.
18. The said decision of the Hon'ble Apex Court has
been relied on, in the judgment cited by learned counsel
for the appellant in the case of Ambalal D Bhatt Vs. The
State of Gujarat reported in (1972) 3 SCC 525, wherein
it has observed thus;
"10. It appears to us that in a prosecution for an
offence under Section 304-A, the mere fact that an
accused contravenes certain rules or regulations in the
doing of an act which causes death of another, does
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not establish that the death was the result of a rash or
negligent act or that any such act was the proximate
and efficient cause of the death. If that were so, the
acquittal of the appellant for contravention of the
provisions of the Act and the Rules would itself have
been an answer and we would have then examined to
what extent additional evidence of his acquittal would
have to be allowed, but since that is not the criteria,
we have to determine whether the appellant's act in
giving only one batch number to all the four lots
manufactured on November 12, 1962, in preparing
Batch No. 211105, was the cause of deaths and
whether those deaths were a direct consequence of
the appellants' act, that is, whether the appellants' act
is the direct result of a rash and negligent act and that
act was the proximate and efficient cause without the
intervention of another's negligence. As observed by
Sir Lawrence Jenkins in Emperor v. Omkar Rampratap,
the act causing the deaths "must be the causa
causans; it is not enough that it may have been the
cause sine qua non". This view has been adopted by
this Court in several decisions. In Kurban Hussein
Mohammedali Rangwala v. State of Maharashtra, the
accused who had manufactured wet paints without a
licence was acquitted of the charge under Section
304-A because it was held that the mere fact that he
allowed the burners to be used in the same room in
which varnish and turpentine were stored, even
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though it would be a negligent act, would not be
enough to make the accused responsible for the fire
which broke out. The cause of the fire was not merely
the presence of the burners within the room in which
varnish and turpentine were stored, though this
circumstance was indirectly responsible for the fire
which broke out, but was also due to the overflowing
of froth out of the barrels. In Suleman Rehiman Mulani
& another v. State of Maharashtra, the accused who
was driving a car only with a learner's licence without
a trainer by his side, had injured a person. It was held
that that by itself was not sufficient to warrant a
conviction under Section 304-A. It would be different if
it can be established as in the case of Bhalchandra
alias Bapu v. State of Maharashtra, that deaths and
injuries caused by the contravention of a prohibition in
respect of the substances which are highly dangerous
as in the case of explosives in a cracker factory which
are considered to be of a highly hazardous and
dangerous nature having sensitive composition where
even friction or percussion could cause an explosion,
that contravention would be the causa causans."
19. In the case relied on by learned counsel for the
appellant in the case of Naresh Giri Vs. State of M.P.
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reported in (2008) 1 SCC 791, the Hon'ble Apex Court
has observed thus;
"7. Section 304-A IPC applies to cases where there is
no intention to cause death and no knowledge that the
act done in all probability will cause death. The
provision is directed at offences outside the range of
Sections 299 and 300 IPC. Section 304-A applies only
to such acts which are rash and negligent and are
directly the cause of death of another person.
Negligence and rashness are essential elements under
Section 304-A."
"8. Section 304-A carves out a specific offence where
death is caused by doing a rash or negligent act and
that act does not amount to culpable homicide under
Section 299 or murder under Section 300. If a person
wilfully drives a motor vehicle into the midst of a
crowd and thereby causes death to some person, it
will not be a case of mere rash and negligent driving
and the act will amount to culpable homicide. Doing
an act with the intent to kill a person or knowledge
that doing an act was likely to cause a person's death
is culpable homicide. When intent or knowledge is the
direct motivating force of the act, Section 304-A has
to make room for the graver and more serious charge
of culpable homicide. The provision of this section is
not limited to rash or negligent driving. Any rash or
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negligent act whereby death of any person is caused
becomes punishable. Two elements either of which or
both of which may be proved to establish the guilt of
an accused are rashness/negligence; a person may
cause death by a rash or negligent act which may
have nothing to do with driving at all. Negligence and
rashness to be punishable in terms of Section 304-A
must be attributable to a state of mind wherein the
criminality arises because of no error in judgment but
of a deliberation in the mind risking the crime as well
as the life of the person who may lose his life as a
result of the crime. Section 304-A discloses that
criminality may be that apart from any mens rea,
there may be no motive or intention still a person may
venture or practise such rashness or negligence which
may cause the death of other. The death so caused is
not the determining factor."
20. In the judgment relied upon by learned counsel
for the appellant in the case of B.E.Chandrashekar and
Others Vs. State of Karnataka reported in ILR 2007
KAR 809, the Co-ordinate Bench of this Court has
observed thus;
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"11. It is to be noticed that the rash and negligent act
referred to Section 304A means an act which is an
immediate cause of death and not an act which can, at
best, said to be a remote cause of death. No doubt,
the act of negligence would be to the driving of any
vehicle in a rash and negligent manner as to endanger
human life or likely to cause harm or injury to hurt a
person where no harm has actually been caused. The
requirement is that the death of any person must have
been caused by the accused by any rash or negligent
act. In other words, there must be proof that the rash
or negligent act of the accused was the proximate
cause of death. There must be a direct nexus between
the death of the person and the rash and negligent act
of the accused. In the case on hand, the prosecution
has failed to garner any material to show that there is
a direct nexus between the death of the young boy
and the alleged act of negligence of the petitioners.
Ultimately, one will have to see whether the accused
were really responsible for the death of the young boy.
It is unfortunate, one young life is extinguished and it
is caused because of the boy coming in contact with
the High-Tension wire while retrieving a ball which had
fallen on the roof. But in the absence of any evidence
to drive home that the negligence can be attributed to
the petitioners, I am of the view that the proceedings
are required to be terminated. As stated earlier, the
evidence garnered by the investigation agency also
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does not disclose that it is the inaction on the part of
the accused which has resulted in the death of the
boy. The evidence of all the witnesses, at best, could
be said that the construction had come up after the
High Tension Wire was put up way back in the year
1965. Even if the accused were to go to Trial, the
prosecution certainly cannot improve upon the
evidence which is collected now. Even if this evidence
remains uncontroverted, to my mind, the case of
negligence or trespass is not made out by the
prosecution."
21. In view of the above decisions, it is to be
ascertained as to, whether the cause of death of the
injured Lokesh is as a result of the injury sustained by him
in the accident without intervention of another's
negligence.
22. Ordinarily, a person who drives a vehicle on
highway has a duty to take reasonable and proper
precaution in the use of the vehicle. The driver must
exercise not only care but also skill. He must observe the
ordinary rules of the road. He should not drive at an
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excessive speed. What is an excessive speed will depend
upon the surrounding circumstances of the case.
23. The doctrine of 'causa causan' means the
immediate cause; the last link in the chain of causation. It
is to be distinguished from causa sine qua non, which
means some preceding but for which causa causans could
not have become operative. Causa causans which is
proximate and efficient cause, it is the last link in the
chain of causation, where as, causa sine qua non which is
necessary for culpability under Section 304-A of IPC is that
the rash or negligent act without mens rea was the
proximate and efficient cause of death.
24. Whether the injuries sustained by the injured
Lokesh resulted in his death has to be considered. The
injured Lokesh sustained head injury as a result of the
accident caused by the appellant - accused. Whether the
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head injury sustained by Lokesh is proximate and efficient
cause of death is to be ascertained.
25. The accident occurred on 01.02.2010 at 9.00
pm., In the said accident, Lokesh sustained injuries and
he has been taken to Kamakshi Hospital and he has been
examined in that hospital and treated till 11.00 pm.
Thereafter, the injured has been treated in Appollo
Hospital from 11.00 pm., on 01.02.2020 to 03.02.2010.
Thereafter, he has been treated in Mission Hospital from
03.02.2010 to 24.02.2010. Further, he has been treated
in B.M.Hospital from 24.02.2010 to 23.06.2010 and he
died at 7.00 am., on 23.06.2010.
26. PW-8 is the doctor who was working in
Kamakshi Hospital. In his evidence, he has deposed that
one Dr.Jagadeesh who was on night duty on 01.02.2010
has given first-aid to the injured Lokesh and sent him to
other hospital. Ex.P8 is the Police intimation report issued
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by Kamakshi Hospital and PW8 has stated that it is issued
by Dr.Jagadeesh. Ex.P9 is the MLC Register extract,
wherein there is a mention that the injured Lokesh was
brought to the hospital with the history of road traffic
accident hit by Indica Car bearing No.KA-09-N-9743 and
the patient is unconscious state and not responding to
painful stimulus and he has sustained deep lacerated
wound on left eye-brow and contusion on the left eye-
brow and abrasion on the left cheek and left fore-arm and
there is a mention that he has been referred to High-Teck
Centre for further management. As per the evidence of
PW8, he has not examined and treated the injured Lokesh.
27. PW10 is the doctor at Appollo Hospital and he
has deposed that on 01.02.2010 at 11.30 pm., injured
Lokesh was admitted in their hospital with the injuries
sustained in the road traffic accident and he has been
treated in their hospital till 03.02.2010 and he has been
discharged against the medical advice and one
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Dr.Manjunath has examined the injured in Casualty
Department and he has produced Ex.P12 - wound
certificate based on the records maintained in the hospital.
In Ex.P12 - wound certificate two injuries are mentioned;
(i) Severe head injury with fracture left
zygomatic orbital complex.
(ii) Fracture of left femur.
28. Therefore, this injury certificate - Ex.P12 would
clearly establish that the injured Lokesh has sustained
severe head injury with fracture of left zygomatic orbital
complex.
29. The injured was admitted in Mission hospital
between 03.02.2010 and 24.02.2010 and none of the
doctors from the said hospital have been examined. The
injured thereafter shifted to B.M.Hospital from 24.02.2010
and he was treated till his death ie., on 23.06.2010 at
7.00 pm.
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30. PW1 is the doctor of B.M.Hospital who deposed
that the injured Lokesh has been brought from Mission
Hospital for further treatment for the injuries sustained in
the road traffic accident and he has been admitted. He
further deposed that the injured has sustained severe
injury on his head and his left femur was fractured. He
sent him for surgery to the concerned doctor and
intimated the police as per Ex.P2.
31. Ex.P1 is the admission card, wherein there is a
mention that Lokesh who has sustained injuries in the
road traffic accident on 01.02.2010 and was first admitted
and treated in the Appollo Hospital and thereafter
admitted and treated at Mission Hospital and brought to
their hospital for further management. On the back of
Ex.P1, there is a mention that Lokesh was admitted, in
CCU and is unconscious due to the injuries and he is
unable to give his statement.
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32. Ex.P2 is intimation of death to the police by
B.M.Hospital dated 23.06.2010, wherein there is a
mention that he has admitted for diffuse axonal injury,
severe head injury and he expired on 23.06.2010 at 7.00
am., and the death was due to cardio respiratory arrest
due to diffuse axonal injury. PW1 has deposed that this
Ex.P2 has been issued by Dr.Ramachandra.
33. From the above said evidence, it is clear that
the injured Lokesh since the date of the accident on
01.02.2010, till his death on 23.06.2010, was admitted in
four different hospitals for his treatment to the head injury
sustained in the road traffic accident.
34. The post-mortem has been conducted by PW13.
PW13 has deposed that he has conducted post-mortem
examination over the dead body of Lokesh and he did not
find any internal injuries, when he examined the dead
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body after cutting it and on the basis of the hospital
reports, he found that the deceased Lokesh has sustained
head injury and therefore, he opined that his death is due
to head injury and issued post-mortem report as per
Ex.P13. He has opined that there are chances of death as
a result of the head injury sustained by the injured. In the
cross examination, he has stated that he has not
mentioned regarding any head injury or injury to the brain
in Ex.P13. He has further stated in the cross examination
that he did not mention that diffuse axonal injury has been
caused prior to the death or after the death in his report.
He further stated that diffuse axonal injury is not visible to
the eyes and as the death has occurred four months after
the accident, it cannot be seen in the post-mortem
examination and based on the report maintained in the
hospital, he has opined that the deceased died as a result
of diffuse axonal injury and he did not find such injury at
the time of post-mortem examination.
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35. From the evidence of PW13, it is clear that the
diffuse axonal injury not visible at the time of post-
mortem examination and he has opined that the cause of
death is due to head injury sustained by the deceased. In
the records maintained by the other hospitals where the
injured Lokesh has been treated, there is a specific
mention that the deceased has sustained head injury.
There is no material on record to show that the deceased
was suffering from any other ailment prior to the accident.
There is no suggestion to PW13 that death of the deceased
was not due to the said injuries sustained by him. The
injured Lokesh sustained head injury on 01.02.2010 and
even after treatment continuously in four different
hospitals, he died on 23.06.2010. Therefore, death of the
injured Lokesh is efficient cause of the injuries sustained
by him in the accident without the intervention of other's
negligence. Therefore, the death of the injured Lokesh is
due to the direct result of the rash and negligent act and
that act was proximate and efficient cause of death
without intervention of other's negligence.
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36. Considering all these aspects, the Trial Court
has rightly held that the appellant - accused has
committed the offence under Section 304-A of IPC.
37. Learned counsel for the appellant at this stage
submits that the appellant - accused is aged 54 years,
having the wife and two unmarried daughters of
marriageable age and prays for modifying the sentence of
imprisonment to fine alone and fine imposed may be paid
as compensation to the wife of the deceased. The learned
HCGP prays to confirm the sentence imposed for offence
u/s 304 of IPC.
38. In Section 304-A of IPC, the punishment
prescribed is imprisonment of either description for a term
which may extend to two years or with fine or with both.
39. The accident has taken place in the year 2010.
Now, 13 years have elapsed and looking to the age and
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the responsibility of the appellant - accused, sentence
requires to be modified for imprisonment for one day, till
rising of the Court with fine of Rs.3,00,000/- for the
offence under Section 304-A of IPC and out of that fine
amount, a sum of Rs.2,90,000/- has to be paid to PW2 -
Smt.Mahalakshmi, wife of the deceased Lokesh, as
compensation under Section 357 of Cr.P.C. In the result,
the following;
ORDER
(i) The appeal is allowed in part.
(ii) The order of conviction and sentence for the
offence under Section 279 of IPC and Section 185
of the Motor Vehicles Act is affirmed.
(iii) While affirming the conviction of the appellant -
accused for the offence under Section 304-A of IPC,
the sentence imposed by the Trial Court is modified
to one day imprisonment, till the rising of the
Court, with fine of Rs.3,00,000/- (Rupees three
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lakhs only), in default, to undergo Simple
Imprisonment for a period of two months.
(iv) Out of the said amount collected, a sum of
Rs.2,90,000/- (Rupees two lakh ninety thousand) is
ordered to be paid as compensation to PW2-
Smt.Mahalakshmi as provided under Section 357 of
Cr.P.C.
(v) The appellant - accused has to surrender
himself at the commencement of the Court hours to
undergo the sentence, till the rising of the Court
and has to deposit the fine amount prior to the said
date of his surrender.
(vi) The Trial Court shall secure PW-2 for
disbursement of compensation to her.
Sd/-
JUDGE
LRS, GH
