SRI M K NARASIMHAIAH @ NARASIMHAN v. STATE BY PEENYA TRAFFIC POLICE

3. Heard the learned counsel for appellant, learned High Court Government Pleader for the State and perused the evidence and material on record.

4. It is the case of prosecution that on 12.05.2010 at about 10.30 p.m., appellant/accused No.1 being the driver of a lorry bearing Registration No.KA-01-A-2169 drove the said lorry loaded with iron plates projecting 5 ft - 3 - NC: 2024:KHC:9280 CRL.A No. 961 of 2012 outside its body on both sides, in a rash and negligent manner and hit against an oncoming Maxi Cab bearing Registration No.KA-05-A-6396, opposite Sunakthi Solar Energy System Private Limited at 4th Phase, Peenya Industrial Estate, on account of which, the inmates of Maxi Cab sustained injuries and out of them three passengers by name Girish, Natraj and Gowramma died on the spot.

5. It is the further case of prosecution that accused No.2 being the owner of the lorry has loaded the big iron plates in the said lorry which was projecting more than 5 ft. on both the sides and 5 ft. from the back side, without taking any precautionary measures.

6. Charges were framed against accused No.1 for the offence punishable under Section 279, 337, 338 of IPC and against accused Nos.1 and 2 for the offence punishable under Section 304 of IPC.

7. The prosecution in all examined 14 witnesses and got marked 18 documents to establish its case. The - 4 - NC: 2024:KHC:9280 CRL.A No. 961 of 2012 learned Sessions Judge was pleased to hold that no criminal act can be attributed against accused No.2 for want of concrete evidence and further held that the offence committed by accused No.1 would attract the ingredients of the offence under Section 304(A) of IPC and not 304 of IPC.

8. The learned counsel for appellant has contended that the evidence on record is not sufficient to hold the appellant guilty of the offence for which he has been convicted by the trial Court. He contends that there are two versions with regard to the accident in question and two views are possible and therefore, the view which is favourable to the accused should be adopted. Pointing out to the wound certificates of two of the injured namely PW.3 and PW.8, which are marked as Exs.P8 and P7 respectively, he has contended that the history furnished in the said documents is that the tempo suddenly hit a canter goods carrier vehicle which was parked on the road. - 5 - NC: 2024:KHC:9280 CRL.A No. 961 of 2012 He has therefore contended that the said history furnished at the earliest point of time would reveal that the lorry in question was parked on the road and the accused was not driving the said lorry and therefore, he cannot be held responsible for the accident. Drawing the attention of the Court to the evidence of PW8, one of the passengers in the maxi cab, the learned counsel has contended that according to the said witness, the accident was on account of the fault of tempo driver. It is further contended that the appellant is only a driver of the lorry and he has not loaded the iron plates and therefore, merely because he was driving the lorry loaded with iron plates, even admitting that the said iron plates were projecting out of the lorry, it cannot be held that he was rash or negligent in driving the said vehicle. He has contended that none of the witnesses have stated that the lorry was being driven in a rash manner. Hence, he contended that the accident occurred solely due to the rash and negligent driving by the driver of the Maxi Cab. He contends that the trial - 6 - NC: 2024:KHC:9280 CRL.A No. 961 of 2012 Court without properly appreciating the above aspects has erroneously convicted the appellant.

9. Per contra, the learned High Court Government Pleader has contended that PWs.2, 3, 8, 9 and 10 are the injured passengers who were travelling in the Maxi Cab, which was driven by PW4 and further PWs.1 and 2 are the eye witnesses to the incident. He contends that the said witnesses have categorically stated that the lorry was loaded with big iron plates extending more than 5 ft. on either side. He contends that the accused was driving the lorry in a rash and negligent manner without taking any precaution, which has resulted in the accident and three persons died and six inmates of the Maxi Cab sustained injuries. He contends that the learned Sessions Judge having appreciated the entire evidence has rightly held the accused guilty. He has therefore, sought to dismiss the appeal.

10. PW1 is the first informant who lodged the complaint. On the basis of which, FIR in Cr.No.149/2010 - 7 - NC: 2024:KHC:9280 CRL.A No. 961 of 2012 was registered at Peenya Traffic Police Station against the driver of the lorry bearing No.KA-01-A-2169, for the offence punishable under Section 279, 337 and 304 IPC.

11. PW14-Investigating Officer, after registering the case has conducted investigation and filed charge sheet against accused Nos.1 and 2 namely the driver and owner of the lorry bearing registration No.KA-01-A-2169.

12. It is the specific case of prosecution that, the accident took place on 12.05.2010 at about 10.30 p.m., opposite Sunakthi Solar Energy System Pvt. Ltd., 4th phase, Peenya Industrial Area on account of the rash and negligent driving by the driver of the lorry. The owner of the lorry was arraigned as accused No.2 on the ground that he has permitted accused No.1 to transport the iron plates in the lorry which was projecting 5 ft. on each side, without taking any proper precautions. The learned Sessions judge found him not guilty of the charge under - 8 - NC: 2024:KHC:9280 CRL.A No. 961 of 2012 Section 304 of IPC and he was acquitted. The said finding has become final.

13. PW1, who set the law into motion has deposed in his evidence that he was working as a Manager in Legend Solar Energy Company situated at Peenya. On the date of incident, while he was standing near his parked car in front of his Factory, at that time the lorry in question came from NTTF side loaded with iron plates. He has stated that the iron plates were protruding out and there was no light or cloth tied to the iron plates and no precaution was taken while driving the said vehicle loaded with iron plates. He has further stated that, at that time, a Maxi Cab was coming from the opposite side and the iron plates which were projecting out of the lorry rubbed against the Maxi Cab, due to which, the Maxi Cab got damaged and hit against his car and the passengers in the Maxi Cab sustained injuries and out of them, three persons died on the spot. The suggestion put to the said witness in the cross-examination that there was no head - 9 - NC: 2024:KHC:9280 CRL.A No. 961 of 2012 light to the Maxi Cab and the accident occurred on account of the fault of the driver of the Maxi Cab, has been denied by the said witness.

14. Similarly, PW7 is another eye witness, who was present at the spot at the time of the accident has also deposed that the lorry was loaded with iron plates which was projecting out and further deposed that the accident occurred on account of the iron plates loaded in the said lorry. There is nothing elicited in the cross-examination of the witnesses to disbelieve their evidence.

15. PWs.2 to 4, 8 to 10 are the inmates of the Maxi Cab who sustained injuries in the incident. Out of the said witnesses, PW4 is the driver of Maxi Cab. Except PW3, the other witnesses have supported the case of prosecution. The prosecution has also got marked Exs.P7, P8, P11 to P13 the wound certificates in respect of PWs.2, 3, 8 to 10 to show that the said witnesses were traveling in the Maxi Cab and sustained injuries. - 10 - NC: 2024:KHC:9280 CRL.A No. 961 of 2012

16. The learned counsel for appellant has contended that PWs.2 to 4 have not identified the accused as the one who was driving the lorry. Hence, he sought to extend the benefit of doubt to the accused. The said contention cannot be accepted. Firstly, all the other witnesses have identified the appellant/accused as the one who was driving the lorry. Secondly, the accused has not taken a specific defence that he was not driving the lorry in question. Even in the statement recorded under Section 313 Cr.P.C., except denying all the questions, the appellant has not stated that he was not the driver of the lorry or that he was not driving the lorry at the relevant point of time. In view of reliable evidence of the prosecution witnesses, it can be safely held that the accused was driving the lorry in question at the time of accident.

17. In Exs.P7 and 8, namely the wound certificates of PWs.7 and 3, it is stated that the said injured were travelling in a Tempo and the said Tempo hit a canter - 11 - NC: 2024:KHC:9280 CRL.A No. 961 of 2012 goods carrier which was parked on the road. It is contended by the learned counsel for appellant that as per Exs.P7 and 8, the documents marked by the prosecution, the lorry was parked and therefore, it is the Tempo which hit against the said parked lorry.

18. The above contention of the learned counsel for appellant cannot be accepted for the reason that it is nobody’s case that the lorry in question was parked at the accident. PW8 has admitted cross-examination that she informed the doctor that the Maxi Cab in which they were travelling was hit against the parked lorry. Except the said version, there are no material on record to show that the lorry was parked at the time of accident. All the other witnesses have categorically stated that the accident occurred as the lorry was being driven by loading the iron plates which were projecting 5 ft. on either side. Even accepting the contention that the lorry was parked, the fact remains that the accused parked the lorry loaded with iron plates - 12 - NC: 2024:KHC:9280 CRL.A No. 961 of 2012 projecting 5 ft. either side, without taking any precaution or care and therefore, caused the accident on account of his negligent act.

19. PW12 is the ARTO, who has issued Exs.P9 and 10 after inspecting both the vehicles. He has stated that the accident has not occurred on account of mechanical defect. He has noticed damages to the Maxi Cab. He has specifically stated that the goods vehicle bearing registration No.KA-01-A-2169 was not damaged. Hence, it can be seen that the accident occurred on account of the iron plates which was loaded in the lorry coming in contact with the Maxi Cab. Hence, the lorry was not damaged as it was only because of the iron plates, which were protruding 5 ft. outside and hit the Maxi Cab.

20. A perusal of evidence of PW1 shows that the driver of the Maxi Cab lost control of it and then hit against his parked car. PW4, driver of the Maxi Cab has stated that since the lorry was loaded with iron plates - 13 - NC: 2024:KHC:9280 CRL.A No. 961 of 2012 which was projecting 5 ft. outside its body and as it was dark and raining, the accident has occurred.

21. On an overall appreciation of the entire evidence and material on record, this Court finds that the judgment Court convicting appellant/accused No.1 for the offence punishable under Section 279, 337, 338, 304A IPC is just and proper.

22. The accident has occurred in the year 2010. 13 years have lapsed. The appellant was aged about 55 years at the time of incident. It is submitted that he is now aged about 68 years and his elder son died recently due to liver Cirrhosis. He has therefore sought to take a lenient view in the matter.

23. The trial Court has sentenced the appellant to undergo simple imprisonment for a period of 01 year 06 months for the offence punishable under Section 304(A) IPC, which is the substantive sentence. All the sentence imposed for the offence punishable under Section 279, - 14 - NC: 2024:KHC:9280 CRL.A No. 961 of 2012 337, 338 and 304(A) have been directed to run concurrently.

24. Considering the entire facts and circumstances, the sentence imposed against the appellant can be modified. Accordingly, the following: ORDER i. The appeal is allowed in part. ii. The Judgment and Order dated 13.06.2013 passed by the Presiding Officer, Fast Track (Sessions) Court, XVII, Bangalore City, in SC No.1341/2010, convicting the appellant/accused No.1 for the offence punishable under Section 279, 337, 338 and 304A IPC is confirmed. iii. The sentence imposed the offence punishable under Section 304A of IPC is modified as under: (a) The appellant/accused No.1 shall undergo simple imprisonment for a period of six - 15 - NC: 2024:KHC:9280 CRL.A No. 961 of 2012 months for the offence punishable under Section 304A IPC. (b) The sentence imposed for the rest of the offences and the fine imposed for all the offences shall be intact. (c) The appellant is entitled for set off for the period he has already undergone custody, under Section 428 of Cr.P.C. (d) All the sentences shall run concurrently. Sd/- JUDGE HB/TL List No.: 1 Sl No.: 41