(PER: HON'BLE MR. JUSTICE V SRISHANANDA)
Heard Sri Sanjay A. Patil, learned counsel for the
Court Government Pleader for the respondent/State.
2. Appellant is the accused, who stood for the trial
for the offences under Sections 279 and 304 of IPC. After
3. Facts in brief which are utmost necessary for
3.1. An accident occurred on 11.08.2015 at about
04-00 p.m., wherein accused being the driver of a Bolero
Jeep bearing registration No.KA 38/7564 drove the same
in a rash and negligent manner from Bidar Fire station
road towards Gadgi village with a full knowledge that
driving of the vehicle in such manner may result in
accidental death of a person; when offending vehicle
reached near water tank near bus stand because of his
rash and negligent driving, he dashed against a boy by
name, Furkhan S/o Faruq, aged about 7 years, causing
fatal injuries, resulting in his death.
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3.2. The way in which the incident has occurred was
reported and the jurisdictional police registered FIR for the
offences under Sections 279 and 304 of IPC.
3.3. After thorough investigation, charge sheet also
came to be filed for the offences under Sections 279 and
304A of IPC.
4. Learned Trial Magistrate took cognizance and
committed the matter in view of the fact that the offence
alleged against the accused under Section 304 of IPC was
exclusively triable by the Court of Sessions.
5. Learned Sessions Judge took cognizance of the
offences alleged against the accused and registered the
case in S.C.No.169/2016 and framed the charges for the
offences under Sections 279, 304A and 304 of IPC after
securing the presence of the accused.
6. Accused pleaded not guilty. Therefore, trial was
held.
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7. In order to bring home the guilt of the accused,
the prosecution in all examined thirteen witnesses as
P.W.1 to P.W.13 and placed on record eight documents
which are exhibited and marked as Exhibit P.1 to P.18
comprising complaint, spot mahazar, photographs of the
offending vehicle, inquest mahazar, post mortem report,
sketch map of spot mahazar, motor vehicle report, photos
of the deceased and FIR.
8. On conclusion of recording of evidence, accused
statement as is contemplated under Section 313 of Cr.P.C.
was recorded, wherein accused has denied all the
incriminatory material found in the case of the prosecution
but failed to place on record his version about the incident
either orally or in writing as is contemplated under Section
313(4) of Cr.P.C.
9. Thereafter, learned Trial Judge heard the
arguments of the parties in detail and by impugned
judgment, convicted the accused for the offences under
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Sections 279 and 304A of IPC and sentenced as referred
to supra.
10. Being aggrieved by the same, accused has
preferred the present appeal on the following grounds:
• The impugned Judgment of conviction passed
by the Trial Court is contrary to law and facts
of the case. Thus the Judgment of conviction is
contrary to materials available on record and
evidence of the prosecution witnesses and thus
has erroneously convicted the
appellant/accused.
• The Trial Court failed in noticing the fact that,
the so called eyewitnesses namely; PW.2 and
PW.3 have turned hostile to the case of
prosecution and further that, PW.4 is not
definite who caused the accident, this being the
evidence on record the trail court ought to have
given benefit of doubt to the appellant and
ought to have acquitted of all charges.
• That Trial Court has totally based its conviction
on the evidence of PW.6 and 10 who are said
to be interested witnesses and also that, PW.6
is a minor and PW.10 is also a minor as such
they should have been treated as child witness
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for which the court should have taken all
necessary steps to see whether both these
witnesses are capable to understand the
questions and give correct answers, but the
Trial Court without taking such necessary steps
has directly allowed the prosecution to examine
them as regular witnesses and hence basing
conviction on these two witnesses is not safe
and justifiable. Hence the impugned Judgment
of conviction deserves to be set aside.
• The Trial Court ought to have seen that, PW.1
is the complainant and is not eyewitness to the
case PW.2 and PW.3 are eyewitness to the case
who have turned hostile PW.4 is another
eyewitness but not definite about identifying
the driver of the offending vehicle rest other
two witnesses are child witness.
• The Trial Court has also ignored the fact that,
PW.5 the panch to the spot panchanama has
also not supported the case of the prosecution
and further PW.2 who is projected as
eyewitness has also turned hostile to the
prosecution case, this being the evidence
available on record, the court below without
properly assessing the evidence on record has
wrongly convicted the appellant.
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• The Trial Court has also ignored the fact that,
PW.9 who is witness to the inquest
panchanama has also given a go by to the case
of prosecution, but however the Trial Court
relied the evidence of two child witnesses and
other police witnesses including the doctor and
has thus wrongly convicted the appellant for
the offences punishable U/Sec.279 and 304-A
of IPC, on the contrary the trial court ought to
have given benefit of doubt in favour of the
appellant and acquit the appellant of all
charges.
• Viewed at any angle the impugned Judgment of
conviction dated: 30.06.2020 passed in S.C
No.169/2016 deserves to be set aside. Since it
suffers from not properly appreciating and
analyzing the materials and evidence on
record.
11. Sri Sanjay A. Patil, learned counsel for the
appellant would contend that the incident has not occurred
as is portrayed by the prosecution and accused was
driving the Bolero Jeep with all care and caution and it is
the deceased, the young boy, who came on the road all of
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a sudden and despite best efforts, accused could not stop
the vehicle. Therefore, attributing the negligence on the
part of the accused, especially, in view of the answer to
question No.14 which has been ignored by the learned
Trial Judge and sought for allowing the appeal.
12. Alternatively, Sri Sanjay A. Patil, learned
counsel for the appellant would contend that in the event
this Court upholding the order of conviction, taking note of
the fact that the accused is a sole bread earner, by
enhancing the fine amount reasonably, sentence of
imprisonment may be set aside.
13. Per Contra, Sri Jamadar Shahabuddin, learned
High Court Government Pleader would support the
impugned judgment by contending that even though while
answering the question No.14, the accused has stated that
the victim boy has suddenly came on road. But to
substantiate said defence, no possible or plausible material
evidence is placed on record by the accused. Further, the
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chargesheet was not challenged by the accused even
though he was charged for the offence under Section 304
of IPC instead of Section 304A of IPC.
14. He further contended that the injuries found on
the body of the deceased as could be seen from the
photographs placed on record vide Exhibit P.7 coupled
with inquest mahazar and the post mortem report would
make it crystal clear that the death has occurred due to
head injury. If the boy had run on the mid road as is
contended by the accused, the injury could have been on
the other parts of the body as well and not only on the
head. Therefore, the theory that is put forth on behalf of
the appellant cannot be countenanced in law and thus
sought for dismissal of the appeal.
15. Having heard the arguments on both sides, this
Court perused the material on record meticulously. On
such perusal of the material on record, following points
would arise for consideration:
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(i) Whether the material evidence placed on
record would be sufficient enough to
maintain the conviction of the appellant for
the offences under Sections 279 and 304A
of IPC?
(ii) Whether the impugned judgment is
suffering from legal infirmity and perversity
and thus calls for interference?
(iii) Whether the sentence is excessive?
(iv) What order?
Regarding Point Nos.1 and 2:
16. In the case on hand, in order to bring home the
guilt of the accused, the prosecution in all examined
thirteen witnesses.
17. Among them, P.W.2 to P.W.4 are the
eyewitnesses. P.W.1 is the complainant, who set the
criminal law into motion. He deposed that the deceased is
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his nephew. It is his case that his sister was married to
Faruq, who deserted his sister and two children namely,
Furkhan and Imran Khan and his sister and her children
were given shelter in his house. It is also his case that
Furkhan (deceased) was the elder son of his sister and
Imran Khan was his brother.
18. It is his further testimony that about 3-4 years
earlier to the date of deposition, deceased had visited
Bidar to procure the school books along with 3-4 other
children. At about 04:00 p.m., when he was performing
namaz in the Masjid, he received a telephone call but he
did not answer the same. After finishing the namaz, when
he came out from the Masjid, 2-3 people, who had
assembled in front of the Masjid, told him that Furkhan
met with an accident and he is no more. Immediately, he
went to the place and by then, the body was shifted to the
hospital. He went to the hospital and saw the dead body of
Furkhan. When he went to the place of incident, he has
noticed that a bolero vehicle was parked and he identified
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the accused as the driver of the said vehicle. Police visited
him and took the complaint, which he identified as Exhibit
P.1.
19. In his cross-examination, there is no useful
material elicited so as to disbelieve the lodging of the
complaint. Admittedly, P.W.1 is a person, who came to
know about the incident from others and his evidence is
only restricted to filing of the complaint.
20. P.W.2 is Saajid Miyya, who is an auto driver.
He did not support the case of the prosecution and
therefore he has been treated as hostile witness and
cross-examined by the prosecution, wherein the contents
of his statement were confronted but he denied the same.
So also P.W.3 - Siddappa, who is another auto driver did
not support the case of the prosecution.
21. Classmate by name, Umera Begum is examined
as P.W.4. She deposed before the Court about the incident
and also about the identity of the accused. She has turned
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partly hostile to the case of the prosecution and therefore
she has been treated as hostile witness.
22. In her cross- examination on behalf of the
prosecution, she admits that P.W.2 and P.W.3 were
present but denied that it is they who had apprehended
the accused. In her cross-examination, she admits that
she did not know what happened in the hospital.
23. Syed Maulana, a plumber, who was the panch
witness to Exhibit P.4 Panchanama supported the case of
the prosecution.
24. Likewise, Syed Ismail is a student, who deposed
about the incident and he being present along with Umera
Begum at the place of incident. He has stated that accused
was the driver of the bolero Jeep, which came in a rash
and negligent manner and dashed against Furkhan.
25. In his cross-examination to a specific
suggestion that accused was not apprehended at the spot,
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this witness has answered that soon after the accident,
accused tried to flee away along with his vehicle but he
was apprehended at a short distance.
26. The mother of the deceased is examined as
P.W.7. She came to know about the incident and she
deposed based on information she received and she
supported the case of the prosecution.
27. P.W.8 - Khajamiyan S/o. Mustafa, who is a
mahazar witness to inquest panchnama, did not support
the case of the prosecution in toto.
28. P.W.9 - Siddu S/o. Kashinath, who is also one
of the mahazar witnesses to inquest panchnama, their
evidence is formal in nature.
29. P.W.10 - Saniya Begum D/o. Maheboob is yet
another girl student, who was present at the time of
incident and was witnessed the accident, has supported
the case of the prosecution to an extent, and she did not
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specifically state before the Court that because of the
negligence of the accused the incident has occurred. She
has been treated as hostile witness and cross-examined by
the prosecution, but in such cross-examination no useful
material is elicited.
30. P.W.11 - Toufiz Ahmed S/o. Basheer Ahmed is
the PWD Engineer, who prepared the spot sketch and
supported the case of the prosecution.
31. The Investigating Officers are examined as
P.Ws.12 and 13, have deposed before the Court that they
have registered the case, investigated the matter in detail
and filed charge-sheet.
32. Above evidence on record is sought to be re-
appreciated by the learned counsel for the appellant in the
light of the appeal grounds.
33. On careful consideration of the aforesaid
evidence on record, it is crystal clear that death of the
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boy, by name Furkhan in a road traffic accident is not in
dispute.
34. Inquest mahazar and postmortem report would
sufficiently establish that because of the accidental injuries
sustained on his head, boy lost his life. No doubt, few of
the eyewitnesses and one of the girl student was also
present, did not support the case of the prosecution in
establishing the guilt of the accused. However, the
suggestions made to the prosecution witnesses that the
incident has occurred when the boy tried to cross the road,
all of sudden shows that it is the present appellant, who
was the driver of the bolero jeep, which hit the Furkhan
resulting in his death on spot. Uncle and mother of the
deceased came to know about the incident and
immediately they have rushed to the hospital.
35. Fact that the bolero jeep hit the deceased
resulting in head injury and Furkhan losing the life is thus
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established by the prosecution by placing cogent and
convincing evidence.
36. The alternate theory put forward by the
accused that it is the mistake of the boy, who suddenly
crossed the road and whereby the appellant could not
control the vehicle and accident has occurred, is not
probablised by placing atleast plausible evidence on
record.
37. No doubt, while answering question No.14 at
the time of recording the accused statement, the appellant
has stated that the boy suddenly crossed the road and
therefore, accident has occurred. But the spot mahazar
does not show the break marks on the road, which would
indicate that the alternate theory propounded by the
accused has not been established to any extent, muchless,
an acceptable one.
38. In a matter of this nature, accused is bound to
place his version on record as he is one of the participants
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in the incident. Such an opportunity would be granted to
the accused after prosecution places a believable evidence
on record. Such an opportunity is in the form of recording
of accused statement as is contemplated under Section
313 of Cr.P.C.
39. Recording of an accused statement as is
contemplated under Section 313 of Cr.P.C. is not
purposeless or an empty formality. It serves dual
purpose.
40. Firstly, it is the mandatory duty of the Trial
Judge to put across the incriminatory circumstances
available in the prosecution evidence and seek for
explanation from the accused to such incriminating
circumstances.
41. Secondly, it provides an opportunity for the
accused to putforth his version about the incident. If the
accused deliberately fails to make use of such an
opportunity granted to him at the time of recording the
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accused statement as is contemplated under Section 313
of Cr.P.C., the consequences in law should follow.
42. View of this Court in this regard is supported by
the legal principles enunciated by the Hon'ble Apex Court
in the case of Ravi Kapur Vs. State of Rajasthan
reported in (2012) 9 SCC 284. Paragraph No.39 of the
said judgment is culled out hereunder for ready reference:
"39. It is true that the prosecution is required
to prove its case beyond reasonable doubt but the
provisions of Section 313 Cr.P.C. are not a mere
formality or purposeless. They have a dual purpose
to discharge, firstly, that the entire material parts of
the incriminating evidence should be put to the
accused in accordance with law and, secondly, to
provide an opportunity to the accused to explain his
conduct or his version of the case. To provide this
opportunity to the accused is the mandatory duty of
the Court. If the accused deliberately fails to avail
this opportunity, then the consequences in law have
to follow, particularly when it would be expected of
the accused in the normal course of conduct to
disclose certain facts which may be within his
personal knowledge and have a bearing on the case."
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43. Applying the principles of law enunciated in the
case of Ravi Kapur (supra) to the case on hand, in this
case, except answering that the boy came all of a sudden
on the middle of the road and whereby the accused is not
responsible for the accidental death of Furkhan, cannot be
countenanced in law as there is no other metal evidence,
which would corroborate the stand taken by the accused.
44. Further, what made the accused in not placing
his version of the incident in writing as is contemplated
under Section 313(4) of Cr.P.C. is a question that remains
unanswered on behalf of the accused.
45. The appellant/accused could have examined
himself as a witness or other inmate in the bolero jeep, he
could have been examined as a witness to probablise his
alternate theory that because of the negligent crossing of
the road of Furkhan, resulted in his accidental death.
46. In the absence of any such material on record,
this Court is unable to agree with the contentions raised
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on behalf of the appellant that the prosecution evidence is
not sufficient to record an order of conviction and as such,
the impugned judgment is suffering from legal infirmity
and it could be termed as perverse. In view of the
foregoing discussion, point No.1 is answered in the
affirmative and point No.2 in the negative.
Regarding point No.3:
47. In the case on hand, deceased is 7 year old
boy. Accidental injury to the head, resulted in death of
Furkhan on spot. A valuable life has been lost. Since the
conviction order is confirmed and learned Trial Judge has
applied his judicious mind in acquitting the accused for the
offence under Section 304 of IPC and State did not choose
to challenge acquittal of the accused for the offence under
Section 304 of IPC, this Court is of the considered opinion
that the imprisonment of one year if reduced to six
months, ends of justice would be met. Accordingly, point
No.3 is answered partly in the affirmative.
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Regard point No.4:
48. In view of the finding of this Court on point
Nos.1 to 3 as above, following order is passed:
ORDER
a) Appeal is allowed in part.
b) While maintaining the conviction of the
appellant/accused for the offences
punishable under Sections 279 and 304-A
of IPC, sentence of imprisonment ordered
by the Trial Judge for the offence
punishable under Section 304-A of IPC is
hereby modified by directing the accused to
undergo simple imprisonment for a period
of 6 months. Rest of the sentence is
unaltered.
c) Time is granted till 20.07.2025 for the
appellant to surrender before the Trial
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Court for serving the remaining part of the
sentence.
d) Office is directed to return the Trial Court
records with copy of this judgment
forthwith for issue of modified conviction
warrant.
Sd/-
(V. SRISHANANDA)
JUDGE
RSP/SBS/SRT
