Accused is convicted U/s 255(2) of Cr.P.C., for the
offence punishable U/s. 279 of IPC and sentenced to
undergo S.I. for three months and pay fine of Rs.500/-.
Furnish a free copy of this judgment to the
accused forthwith."
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3. The validity of the order of conviction and
sentence was questioned before the District Court in Criminal
Appeal No.46/2017.
4. The said appeal on merits came to be dismissed
by the Judgment dated 22.09.2020. Being further aggrieved
by the same, the accused is before this Court in this revision
petition, on the following grounds:
That, the Judgment/order under
appeal is (impugned) against the records of the
case and perverse. The courts below has not
properly and judiciously appreciated the record;
hence come to wrong conclusion.
That, PW.1 Kailasayya is the
informant and injured person this case in his
evidence the reported all the relevant things and
in his cross examination he deposed that the Rev.
Petitioner was properly driving the vehicle and he
also told that at the time of accident one two
wheeler suddenly taking U-turn infront of this
vehicle and to rescue the vehicle driver suddenly
took the vehicle at the right side and he was
driving the vehicle on left side of the road and it
was slow. This is enough to show that the driver is
not driver the vehicle in rash and negligent
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manner. This is not appreciated by the courts
below.
That, the PW.2 is the Malleshappa
who is spot and seizure pancha in his cross
examination he told that he does not know the
contents of the panchanama and who has written
that panchanama and what has been written in
the panchanama, which is not appreciated by the
courts below.
That, the PW.3 Nagamma one of the
injured witness in her cross examination she told
that there are speed breakers on the road and the
vehicle is running on the left side of the road and
she doe not identify the accused and police have
not shown the accused.
That, the PW.4 she also told that she
does not know at how much speed the driver was
driving the vehicle and also admits that there are
speed breakers on the road and road was also not
proper and the vehicle was also on the left side of
the road so question of rash and negligence
driving does not arise.
That, the PW.5 he is the son of the
owner of the tempo who has not supported the
prosecution case and prosecution has treated him
hostile and PW 6 is another spot and seizure
pancha who has also not supported the
prosecution case and PW.7 who is another injured
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witness, who told in his chief examination itself
that he sat besides the driver and who is not
going to identify accused/driver who is present in
the court which is quite un-natural and he also
told that he has not identified the vehicle and who
is treated as hostile by the prosecution.
That, the PW.8 is the investigation
officer who filed the charge sheet after completion
of the investigation and PW.9 is the doctor who
has treated the injured witness and PW.10 is the
person who registered the case and also first
investigation officer of this case.
That the prosecution has failed to
examine the major witness, the doctor, who has
treated many injured witnesses in this case and
another major eye witnesses to the incident the
person who fell from the two wheeler and who is
not cited as the charge sheet witness and also the
owner of the mini goods vehicle bearing No.KA-
32/8705 who has been cited as CW.25 as witness
in the charge sheet.
That, there was no material on record
before the courts below regarding the test
identification parade of the accused/Rev.
Petitioner and hence the courts below have come
to a wrong conclusion.
That even viewed otherwise from any
angle, the impugned orders passed by the courts
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below are illegal, arbitrary, contrary to law and
records of the case besides being against the
principles of natural justice.
5. Facts of the case which are utmost necessary for
disposal of the present petition are as under:
6. One Kailasayya lodged a first information with
Grameen Police, Kalaburagi, stating that, on 12.03.2007 he
had hired a goods vehicle bearing No.KA-32/8705 of
Shivappa to visit Savalagi (B) village for a function i.e.
Mundan/Chandakarana of his son along with his family
members, relatives and villagers. All of them, safely reached
Salavalgi (B) village and after completion of the function, on
their return to their village at about 6.00 p.m., the vehicle
after crossing Pattan Cross, the driver of the Tempo driven
the said vehicle in a rash and negligent manner, despite
repeated advise to drive slowly.
7. In the process, he hit a motorcycle due to which
the tempo turtled on the right side of the road. Inmates of
the tempo fell down and suffered grievous injuries and
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simple injuries. Without even attending the injured persons,
the driver of the tempo ran away.
8. Based on the said complaint, Grameena Police
registered a case in Crime No.57/2007 initially for the
offences under Section 279, 337 and 338 of IPC read with
Section 187 of Indian Motor Vehicles Act. When the
investigation was on, one of the injured namely Annarao
despite best treatment lost his life while taking treatment in
Ashwini Hospital, Sholapur. As such, investigation officer
invoked Section 304(A) of IPC in the matter with permission
of the jurisdictional Magistrate.
9. After thorough investigation, Investigating Officer
filed the charge-sheet for the aforesaid offences including the
offence under Section 304(A) of IPC.
10. Presence of the accused is secured and charges
were framed. Accused pleaded not guilty and trial was held.
After conclusion of recording the evidence, the learned trial
Magistrate recorded the accused statement as is
contemplated under Section 313 of Cr.P.C. Accused has
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denied all the incriminating circumstances found against him,
but failed to offer any explanation with regard to the incident
nor placed any written submission as is contemplated under
Section 313(4) of Cr.P.C.
11. Thereafter, learned trial Judge heard the
arguments of the parties and taking note of the oral
testimony of the injured witnesses in the very same accident
and also taking note of the fact that the accused being the
driver of the offending vehicle has been established by
placing necessary cogent and convincing evidence on record,
convicted the accused for the aforesaid offences and
sentenced as referred supra.
12. Sri. Ashok Mulage, learned counsel for the
revision petitioner, reiterating the grounds urged in the
revision petition as referred to supra, contended that, the
accident has not occurred on account of the rash and
negligent driving of the revision petitioner, but the accident
has occurred on account of the rash and negligent riding of
the motorcyclist. Therefore, recording an order of conviction
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against the revision petitioner has resulted in miscarriage of
justice and sought for allowing the revision petition.
13. Alternatively, Sri. Ashok Mulage, learned counsel
would contend that, in the event of upholding the order of
conviction, this Court may enhance the fine amount and set
aside the imprisonment for the offence punishable under
Section 304(A) of IPC and sought for allowing the revision to
that extent.
14. Per contra, Sri. Veeranagouda Malipatil, learned
High Court Government Pleader supports the impugned
Judgment. He would further contend that, admittedly, there
is negligence on the part of the revision petitioner in allowing
the passengers to be carried in the goods vehicle.
15. He would further contend that, when the goods
vehicle was full of passengers, being the professional driver,
he should have taken such necessary precaution, so as to
expect the unexpected on the road, so as to avoid possible
accident and such a precaution has not been taken by the
petitioner herein, resulting in death of a valuable human life
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besides several other passengers having been injured with
simple and grievous injuries and conduct of the accused in
not attending the injured persons and running away from the
spot has been rightly appreciated by both the Courts and
sought for dismissal of the revision petition in toto.
16. Having heard the arguments of both sides, this
Court perused the material on record meticulously.
17. On such perusal of the material on record, it is
not in dispute that, injured Annarao who is one of the
inmates of the vehicle goods tempo bearing No.KA-32/8705
having suffered the grievous injuries in a road traffic accident
and loosing his life in Ashwini Hospital, Sholapur is not a
dispute. So also, other prosecution witnesses who have
suffered the injuries is not in dispute in view of the wound
certificates produced and marked before the Court vide
Ex.P.6 to Ex.P.19.
18. The accused being the driver of the offending
vehicle is established by placing cogent and convincing
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evidence on record. Admittedly, the photographs marked at
Ex.P.3 and Ex.P.4 would show the nature of accident.
19. According to the complaint, it is the revision
petitioner who was driving the vehicle in a rash and
negligent manner while returning from Salavalgi (B) village
after finishing the function. The inmates of the vehicle had
repeatedly advised the accused to drive slow, but it fell on
his deaf ears and all of a sudden a motorcyclist came, and to
avoid the accident with the motorcycle, it is the revision
petitioner who steered the vehicle, resulting in loss of
balance and vehicle got turtled, resulting in, the inmates
suffered simple and grievous injuries.
20. It is also found from the material evidence on
record that, the accused without even attending the injured
persons ran away from the spot.
21. These aspects of the matter is established by
placing necessary oral and documentary evidence on record.
IMV report does not contain any mechanical defect.
Therefore, the order of conviction recorded by the trial
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Magistrate confirmed by the first appellate Court needs no
interference.
22. Insofar as the sentence is concerned, learned
counsel for the revision petitioner argued that the sentence
of imprisonment needs to be set aside.
23. In a case of this nature, when the accused has
not attended the injured persons and ran away from the spot
and in the absence of any other mitigating circumstances, by
following the dictum of the Hon'ble Apex Court in the case of
State of Punjab Vs. Saurabh Bakshi, reported in (2015)
5 SCC 182, grant of probation is impermissible. One
valuable life has been lost and several others have been
injured is sufficient enough to maintain sentence ordered by
the trial Magistrate, confirmed by the first appellate Court in
the above facts and circumstances of the case.
24. Accordingly, the following order:
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ORDER
(i) The revision petition is meritless and
hereby dismissed;
(ii) Time is granted for the revision
petitioner to surrender before the trial Court till
20.07.2025 for serving the remaining sentence.
Sd/-
(V SRISHANANDA)
JUDGE
KCM,SVH
CT:PK
