S.Lokesh v. State of Karnataka

(By Shri. P. Karunakara, High Court Government Pleader) 2 This Criminal Revision Petition is filed under Section 397 read with 401 Code of Criminal Procedure, 1973, by the advocate for the petitioner praying to set aside the judgment and order dated 28.1.2010 passed by the Additional Sessions Judge and Presiding Officer, Fast Track Court-III, Hospet in Criminal Appeal No.125/2009 and the judgment and order dated 1.9.2009 passed by the Civil Judge (Jr.Dn.) and Judicial Magistrate First Class, Kudligi in C.C.No.520/2007 and be pleased to pass the order of acquittal and acquitting the petitioner of the charge. This Criminal Revision Petition is coming on for Final Hearing this day, the court made the following: ORDER Heard the learned counsel for the petitioner and the learned Government Pleader.

2. The petitioner was the accused before the trail court, whereby it was alleged that on 26.3.2007, at about 7.30 p.m., on Kudligi – Chitradurga road, which is on National Highway No.13, near Sakalapurada Gollarahalli Cross, one Shantamma, after crossing the road is said to have been standing on the left side of the Kacha road and the petitioner, who was the driver of a TATA Indica Car, was 3 driving the same at a high speed in a rash and negligent manner and was moving from Kudligi towards Chitradurga and had dashed the car against the said Shantamma, as a result of which, she had sustained grievous injuries. Though she was shifted to a Government Hospital for treatment, she had succumbed to the injuries.

3. It is further alleged that the petitioner, after having caused the accident, had managed to run away, leaving the car behind and did not even inform the nearest police station. It is in this background that after investigation, a charge-sheet was filed against the petitioner.

4. The petitioner having pleaded not guilty and claimed to be tried, the prosecution had examined PWs.1 to 11 and marked Exhibits P.1 to P.14. On the basis of the material evidence and the rival contentions, the following points were framed for consideration: “1. Whether prosecution proves beyond reasonable doubt that on 26.3.2007 at about 7.30 p.m., on Kudligi- Chitradurga N.H.13, near Sakalapurada Gollarahatti cross, accused drove the Tata Indica car bearing No.KA- 4 16/A-48 in high speed and in a rash and negligent manner so as to cause endanger to human life and thereby accused committed offence punishable under Section 279 of IPC?

2. Whether prosecution proves beyond reasonable doubt that on aforesaid date, time and place, accused caused the death of Shanthamma by his rash and negligent driving of the said vehicle in the manner aforesaid and the said act does not amounting to culpable homicide and thereby accused committed offence punishable under Section 304(A) of IPC? 3) Whether the prosecution proves beyond reasonable doubt that on aforesaid date, time and place, accused left the place of accident without intimating the fact of accident to the nearest police station and without attending the injured and thereby accused committed offence punishable under Section 134 read with 187 of the IMV Act? 4) What order?” 5

5. Points 1 to 3 were held in the affirmative and the petitioner was sentenced to undergo simple imprisonment for a period of six months for an offence punishable under Section 304-A of the IPC and was sentenced to pay a fine of Rs.600/- for an offence under Section 279 of the IPC and was further sentenced to pay a fine of Rs.400/- for an offence under Section 134 read with Section 187 of the Motor Vehicles Act, 1988. That having been questioned in appeal, the appellate court had affirmed the judgment of the court below. It is that which is under challenge in the present petition.

6. The learned counsel for the petitioner would submit that the evidence before the court below is ridden with inconsistencies and it could not have been accepted as establishing the charges beyond all reasonable doubt. It is pointed out with reference to Exhibit P.14, a sketch which is part of the record, that the accident spot is indicated on the metalled surface of the road, in that, there is blood-stain indicated on the metalled surface of the road, though the body of 6 Shantamma was said to be lying on the unmetalled surface, on the side of the road. Therefore, it is clear that the accident has occurred on the road and not off the road, as suggested by the prosecution, namely, that after Shantamma had crossed the road and was standing on the mud path on the side of the road, that the vehicle driven by the petitioner had come at a high speed and had struck Shantamma. On the other hand, it is elicited in evidence that Shantamma had alighted from a bus and crossed the road from behind the bus and that she had blindly crossed the road into the path of the car and it is at that point of time that the accident had occurred. Since it was 7.30 p.m., that the accident had occurred, the glare of the highway beam of the bus, possibly blinded the petitioner, who was not in a position to see the negligent pedestrian crossing the road, without care for the oncoming traffic. This aspect of the matter has not been addressed with care. Further, it is pointed out that insofar as the evidence of PW.1, who is said to be the husband of Shantamma and PW.6, who was the brother of Shantamma, is not consistent, though they were 7 claiming to be eye-witnesses to the accident and are said to have been standing next to Shantamma on the side of the road. If indeed they were standing next to her, it is inexplicable that they were also not injured by the impact of the car against Shatamma. Therefore, the evidence of those witnesses cannot be readily accepted in the absence of clear explanation as to the positions they were actually occupying on the side of the road, to believe their versions that though they were standing next to each other along with the injured, that they were unhurt. The further inconsistency is as to the manner in which Shantamma was taken for first aid, in that, PW.6 has stated that a passer-by had informed the police station and the police had come in their jeep and Shantamma was taken to the hospital in their jeep, while PW.1, the husband of Shantamma, has in his evidence, stated that he had admitted her to a hospital. This not having been explained in detail, whether PW.1 and PW.6 had also accompanied Shantamma while crossing the road or whether they were already waiting for her, again, is a doubtful circumstance. Therefore, it cannot 8 be accepted that the manner in which the accident is said to have occurred has been established beyond all reasonable doubt, to hold that the petitioner was guilty of the offences alleged. The learned counsel would submit that the deceased had succumbed to the injuries caused in the accident cannot be disputed. The crucial factor whether there was rash and negligent driving on the part of the petitioner is certainly doubtful, in the absence of cogent and consistent evidence of the eye witnesses and since the very presence of PWs- 1 and 6 becomes doubtful, their evidence having been taken as establishing the charge against the present petitioner has resulted in a grave miscarriage of justice.

7. The learned Government Pleader, on the other hand, would seek to justify the judgment and would submit that not only the evidence of PWs 1 and 6, there is also evidence of PW.2 an eye witness and hence, it would establish the case against the accused and the theory sought to be canvassed by the learned counsel for the 9 petitioner can only remain a theory and the question of reenacting the scenario in the manner that the counsel seeks, ought to have been established before the courts below and that not having been done, the petitioner seeking to re-create the scene in a manner fashion that he chooses, is not available and therefore the findings of fact, which are concurrent findings, cannot be assailed and hence, would submit that the petition be dismissed.

8. Given the above facts and circumstances, though it is claimed that there were several eye witnesses, namely, PWs 4,5,7,9, and 10, none of these witnesses have been able to sustain the case of the prosecution and it is for that reason that they have been treated as hostile witnesses and their evidence has been eschewed. What we are left with is the evidence of PW.1 and PW.6 . As already stated by the learned counsel for the petitioner, the very evidence cannot be readily accepted in establishing that the vehicle was being driven in a rash and negligent manner and also the circumstance that blood-stains 10 were found, as per the sketch, on the metalled surface of the road, gives a lie to the contention that the accident has occurred off the road and it is only on account of the vehicle being driven in a rash and negligent manner by the petitioner, that the accident has occurred, in that, he had gone off the road and therefore, struck Shantamma, who was standing by the side and that the resultant injuries caused her death, is not a circumstance that can be said to have been established beyond all reasonable doubt. The fact that Shantamma alighted from a bus and had crossed the road also cannot be doubted. On the other hand, if that theory is juxtaposed against the sketch, which is part of the record, it would explain the blood stains that were found on the metalled surface of the road. In that view of the matter, though it is established that there was an accident and that the petitioner was the driver of the car which was involved in the accident and that Shantamma had succumbed to the injuries as a result of the accident, it cannot also be said that it was on account of rash and negligent driving of the car by the petitioner. In that view of the matter, the 11 petitioner having been mulcted with the punishment of imprisonment, may result in a miscarriage of justice. In the opinion of this court, it would meet the ends of justice if a larger amount of fine is imposed, instead of incarcerating the petitioner on the doubtful evidence that is on record and if the said amount of fine is paid as compensation to the legal representatives of the deceased, it would definitely serve a better purpose.

9. Therefore, having regard to the infirmities that are pointed out, the judgments of the courts below are modified to hold that insofar as the punishment for an offence under Section 304A of the IPC is concerned, the sentence of imprisonment is set aside and in addition to the fine payable for the said offence, a further sum of Rs.10,000/- shall be paid as fine, which amount shall be paid as compensation to the husband of the deceased namely, PW.1. The said amount of fine shall be paid within a period of four weeks from today. The bail bonds of the accused stand cancelled. 12 The petition stands disposed of and the judgments of the courts below stand modified in terms as above. Sd/- JUDGE