Syed Ibrahim vs State Of Karnataka
2023 Latest Caselaw 1346 Kant

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                                                       CRL.RP No. 1210 of 2015




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                         DATED THIS THE 16TH DAY OF FEBRUARY, 2023
                                            BEFORE
                        THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
                                   CRL.R.P. NO. 1210 OF 2015
                 BETWEEN:
                 SYED IBRAHIM
                 S/O LATE SHAIK AHAMED
                 AGED ABOUT 73 YEARS
                 R/AT NO.20, IST FLOOR
                 6TH CROSS, DR. B.C.M.
                 RAYAN ROAD
                 BENGALURU - 560 051.
Digitally                                                         ...PETITIONER
signed by B A
KRISHNA
KUMAR            (BY SRI A.H. BHAGAVAN., ADV.)
Location: High
Court of         AND:
Karnataka
                 STATE OF KARNATAKA
                 BY M.M. HILLS POLICE
                 CHAMARAJANGARA DIST
                 REPRESENTED BY
                 THE STTE PUBLIC PROSECUTOR
                 HIGH COURT BUILDING
                 BENGALURU - 560 001.
                                                                 ...RESPONDENT
                 (BY SRI MAHESH SHETTY, ADV.)


                        THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO
                 SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE PASSED
                 BY THE SR. C.J. AND JMFC, KOLLEGAL IN C.C.NO.68/2011 DATED
                 19.11.2013 AND CONFIRMED IN CRL.A.NO.40/2013 ON THE FILE OF
                 THE PRL. DIST. AND S.J., CHAMARAJANAGARA DATED 25.08.2015
                 AND ACQUIT THE PETITIONER.


                        THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE
                 COURT MADE THE FOLLOWING:
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                                     CRL.RP No. 1210 of 2015




                           ORDER

This criminal revision petition under Section 397 Cr.PC

has been filed challenging the judgment and order of conviction

dated 19.11.2013 passed by the Court of Senior Civil Judge &

JMFC, Kollegal, in C.C.No.68/2011 and the judgment and order

dated 25.08.2015 passed by the Court of Prl. District &

Sessions Judge, Chamarajanagara, in Crl.A.No.40/2013.

2. Heard the learned Counsel for the petitioner and the

learned HCGP for the respondent-State.

3. Brief facts of the case as revealed from the records

that may be necessary for the purpose of disposal of this

petition are, on 15.12.2010 at about 3.40 p.m. near Maarimadu

Cross of M.M.Hills-Kollegal road, the bus bearing registration

No.KA-55/5999 which was driven by the petitioner in a rash

and negligent manner from M.M.Hills towards Kollegal, dashed

against Tata Sumo bearing registration No.KA-25/B-6373 which

was coming from the opposite side and caused the accident,

and as a result of the said accident, seven persons who were

traveling in sumo vehicle expired and three other persons

sustained grievous injuries. One Gopalappa - PW-1 who was

CRL.RP No. 1210 of 2015

injured in the said accident had lodged a complaint before the

jurisdictional police and on the basis of the same, FIR was

registered against the petitioner in Crime No.90/2010 for the

offences punishable under Sections 279, 337, 338 & 304-A IPC

and the police after investigation have filed charge sheet

against the petitioner for the aforesaid offences.

4. The petitioner had claimed to be tried before the Trial

Court, and therefore, to substantiate its case, the prosecution

in all examined 11 witnesses as PWs-1 to 11 and got marked

31 documents as Exs.P-1 to P-31. On behalf of the defence, no

evidence was led nor any document was marked. The Trial

Court thereafter heard the arguments on both sides and vide its

judgment and order dated 19.11.2013 convicted the petitioner

for the offences under Sections 279, 337, 338 & 304-A IPC and

sentenced him to pay fine of Rs.1,000/- for the offence under

Section 279 IPC, and to pay fine of Rs.500/- for the offence

under Section 337 IPC, and further to pay fine of Rs.1,000/- for

the offence under Section 338 IPC. The petitioner was further

sentenced to undergo rigorous imprisonment of one year for

the offence under Section 304-A IPC. Being aggrieved by the

said judgment and order of conviction, the petitioner had

CRL.RP No. 1210 of 2015

preferred Crl.A.No.40/2013 before the Appellate Court, which

was dismissed on 25.08.2015 and it is under these

circumstances, the petitioner is before this Court.

5. Learned Counsel for the petitioner submits that the

courts below have erred in convicting the petitioner for the

alleged offences and submits that the petitioner was driving the

bus in a careful manner, but it was the driver of the sumo

vehicle who was driving his vehicle in a rash and negligent

manner and caused the accident. He submits that the evidence

of the eye-witnesses are contradictory and no reliance could

have been placed by the courts below, for recording an order of

conviction against the petitioner. He submits that the petitioner

is aged about 81 years at present and he is suffering from age

old ailments. He also submits that taking into consideration the

manner in which the accident had taken place, the sentence

imposed on the petitioner for the offence under Section 304-A

IPC be reduced, and accordingly, he prays to allow the revision

petition.

6. Per contra, learned HCGP has argued in support of the

impugned judgment and order passed by the courts below and

CRL.RP No. 1210 of 2015

he also submits that as a result of the accident, seven people

have died, and therefore, the sentence imposed on the

petitioner for the offence under Section 304-A IPC is just and

proper, and accordingly, prays to dismiss the petition.

7. I have carefully considered the arguments addressed

on both sides and also perused the material available on

record.

8. In order to prove its case before the Trial Court, the

prosecution has in all examined 11 witnesses. PW-1 who is the

complainant is also an eye-witness to the incident and he had

sustained injuries in the accident in question. PWs-2 to 4 are all

injured eye-witnesses and PWs-5 & 6 are the panch witnesses.

PW-7 is the conductor of the bus and he is the panch witness to

the seizure mahazar. PW-8 is the Motor Vehicle Inspector and

PW-9 is the Engineer who has prepared the rough sketch of the

spot. PWs-10 & 11 are the police officers who have investigated

the case and have filed charge sheet.

9. PWs-1 to 4 are the injured eye-witnesses who have

spoken about the incident and they have deposed before the

Court consistently and they have reiterated the averments

CRL.RP No. 1210 of 2015

made in the complaint. They have specifically stated before the

Court that the petitioner was driving the vehicle in question at

the time of accident and the vehicle was moving downhill from

M.M.Hills to Kollegal and the petitioner who was driving in a

rash and negligent manner had dashed against the Tata Sumo

vehicle which was coming uphill from Kollegal towards M.M.Hills

and as a result, the accident had taken place. In the cross-

examination of these witnesses, nothing has been elicited by

the defence so as to disbelieve the evidence of these eye-

witnesses who were also injured in the accident in question,

and therefore, their presence at the time of accident cannot be

disputed.

10. PW-8 has submitted his report Ex.P-26 which would

go to show that the offending bus was in a good condition and

the accident in question had not taken place because of any

mechanical failure. PWs-5 & 6 who are the panch witnesses to

the spot mahazar have admitted with regard to the drawing up

of the mahazar by the police, and therefore, even though they

have turned hostile, their evidence cannot be discarded in its

entirety. Ex.P-2 - spot mahazar goes to show that the road in

which the accident had taken place was 18 feet wide, and

CRL.RP No. 1210 of 2015

therefore, a bus and a Tata Sumo vehicle could have easily

passed if the vehicles were driven in a careful manner. As a

result of the accident, the Tata Sumo vehicle had turned turtle

and the vehicle was completely damaged and seven of its

inmates had expired in the accident.

11. Having regard to the evidence of PWs-1 to 4 who

have identified the petitioner as the driver of the vehicle which

had caused the accident, it is clear that at the time of accident,

the petitioner was driving the offending vehicle in question.

From the evidence of these witnesses coupled with the spot

sketch which shows that the width of the road at the spot of

accident was 18 feet wide and also taking into consideration the

impact of the accident, it is very clear that the petitioner was

driving the vehicle in a rash and negligent manner. The Trial

Court as well as the Appellate Court having appreciated the oral

and documentary evidence available on record, have

concurrently recorded a finding holding the petitioner guilty of

the alleged offences and accordingly have convicted him for the

offence for which he was charged. I do not find any illegality or

irregularity in the findings recorded by the courts below. In

CRL.RP No. 1210 of 2015

exercise of the revisional jurisdiction, this Court cannot re-

appreciate the evidence on record and give a fresh finding.

12. From the perusal of the photographs of the offending

bus, it is seen that due to the accident, the right side of the bus

was damaged which would go to show that though there was a

head on collusion, only the right side of the vehicle had come in

contact with the sumo vehicle which was coming uphill. The

rough sketch of the spot mahazar which is available on record

would go to show that the accident had taken place almost on

the middle of the road. After the accident, the sumo vehicle had

turned turtle and the vehicle has been completely damaged.

Having regard to the damage sustained to the bus and also

considering the rough sketch of the spot wherein the accident

had taken place, it cannot be said that the driver of the tata

sumo vehicle was driving his vehicle carefully and cannot be

also said that he had not contributed to the accident.

13. The material on record would also go to show that the

petitioner/accused was aged about 68 years at the time of

accident and the cause title of the Appellate Court would go to

show that he was aged 71 years at the time of filing the appeal

CRL.RP No. 1210 of 2015

and in the affidavit filed before this Court in the year 2015, his

age is shown as 73 years. This would go to show that the

petitioner is aged about 81 years at present. Learned Counsel

for the petitioner has stated that the petitioner is suffering from

age old ailments. Taking into consideration the nature of the

accident and also the age of the petitioner, I am of the

considered view that if the sentence imposed by the Trial Court

which has been confirmed by the Appellate Court for the

offence under Section 304-A IPC is modified, the same would

serve the ends of justice. Accordingly, the following order:

14. The revision petition is allowed in part. The judgment

and order of conviction passed by the Trial Court which has

been confirmed by the Appellate Court convicting the petitioner

for the offences under Sections 279, 337, 338 & 304-A IPC is

upheld. The order of sentence passed against the petitioner for

the offence under Section 304-A which has been affirmed by

the Appellate Court is modified and the petitioner is sentenced

to undergo simple imprisonment for a period of six months

instead of one year and he is directed to pay fine as imposed

by the Trial Court. The order of sentence passed against the

petitioner by the Trial Court in so far as the other offences are

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CRL.RP No. 1210 of 2015

concerned, which is affirmed by the Appellate Court remains

unaltered.

Sd/-

JUDGE

KK