Dismissed

Balasaheb Mahadev Bhivate v. the State of Karnataka

Karnataka HC20 Nov 2018CRL.RP/2120/2011

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a criminal revision petition filed under Sections 397 and 401 of Cr.P.C. challenging the conviction and sentence for rash and negligent driving causing death under Section 304A of IPC. The court held that the evidence of eyewitnesses was trustworthy as the accused failed to offer any explanation during his examination under Section 313 of Cr.P.C.

What did the court decide?

The criminal revision petition challenging the judgment of conviction and sentence for driving rashly and negligently is dismissed.

Balasaheb Mahadev Bhivate Vs the State of… — Criminal Trial and Appeal | Karnataka HC (2018)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 20^TH DAY OF NOVEMBER 2018

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BEFORE

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THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ

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CRL. R. P. NO. 2120 OF 2011

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BETWEEN:

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BALASAHEB MAHADEV BHIVATE AGE. 33 YEARS, OCC. TRUCK DRIVER R/O. E-52, DAULATH NAGAR, TQ. KARVEER, DISTRICT KOLHAPUR.

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… PETITIONER

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(BY SRI S. M. KALWAD, ADVOCATE)

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AND :

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THE STATE OF KARNATAKA TRAFFIC NORTH POLICE STATION, BELGAUM, REPRESENTED BY ITS S.P.P. HIGH COURT BUILDING, DHARWAD BENCH, DHARWAD.

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… RESPONDENT

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(BY SRI V. M. BANAKAR, ADDITIONAL S.P.P.)

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THIS PETITION IS FILED U/S. 397 R/W. 401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER OF SENTENCE DATED 08.03.2011 IN CRL. A. NO.38/2009 PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE, BELGAUM, CONFIRMING THE JUDGMENT AND ORDER OF CONVICTION DATED

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21.03.2009 MADE IN C.C. NO.1348/2007 PASSED BY THE JMFC II COURT, BELGAUM, AGAINST THE PETITIONER FOR THE OFFENCE PUNISHABLE U/S. 304A OF I.P.C.

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THIS PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This Criminal Revision Petition is filed by the accused challenging the judgment and order of conviction and sentence passed in C.C. No.1348/2007 dated 21.03.2009 on the file of J.M.F.C. II Court, Belgaum, wherein the learned J.M.F.C. convicted him for the offences punishable under Sections 279 and 304A of I.P.C. and sentenced him to undergo simple imprisonment for

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a period of two months and to pay fine of Rs.500/in default of payment of fine, to undergo simple imprisonment for a period of ten days for the offence punishable under Section 279 of I.P.C. Further, for the offence punishable under Section 304A of I.P.C. the accused was sentenced to undergo six months simple imprisonment and to

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pay fine of Rs.2,000/- in default of payment of fine, to undergo simple imprisonment for a period of two months.

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In Criminal Appeal No.38/2009 preferred

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by the accused, the learned Sessions Judge though acquitted the accused of the offence punishable under Section 279 of I.P.C., however, confirmed the conviction and sentence passed by the trial Court for the offence punishable under Section 304A of I.P.C.

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The case of the prosecution in brief is that, on 17.04.2007 at about 1.30 a.m., in the premises of Indalc factory, the accused being the driver of goods truck bearing Reg. No.MH-04/AL6614 while unloading bauxite, drove it in a rash

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and negligent manner in a reverse direction due to which the deceased, namely Uday Singh Baburao patil who was closing the back door of the body of

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another lorry bearing Reg. No.MH-04/H-3915 was caught in between and crushed between the two vehicles. In view of the said accident, the victim, namely Uday Singh Baburao Patil sustained grievous injuries and succumbed to the injuries.

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Before the trial Court the prosecution so as to establish its case, got examined nine witnesses and got marked Exs.P-1 to P-14 and M.Os. No.1 to 5. The defence of the accused was one of total denial.

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As noted above, the trial Court convicted the accused and the Appellate Court partly allowed the appeal thereby confirming the conviction and sentence passed against the accused under Section 304A of I.P.C.

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I have heard the learned counsel

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appearing for the petitioner and learned Additional S.P.P. appearing for the respondent – State.

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The learned counsel appearing for the petitioner vehemently contended that the prosecution has utterly failed to establish the rash and negligent driving by the accused. He submitted that P.W.1 is an interested witness and he could not have witnessed the incident because there was nothing to show that sufficient light existed near the scene of occurrence. He further submitted that there are two vehicles involved and the accident has occurred on account of the rash and negligent driving by the driver of the vehicle bearing Reg. No.MH-04/H-3915 and according to P.W.1 at the time of accident someone else was the driver of the lorry and after the accident he fled away from the spot. Therefore, he submitted that both the Courts below has failed to appreciate

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the said aspect and erroneously convicted the accused for the offence punishable under Section 304A of I.P.C. and seeks to set aside the impugned judgment and order of conviction and sentence passed against the accused.

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On the other hand, the learned Additional S.P.P. contended that P.Ws.1 and 6 are the eyewitnesses to the incident and they have supported the prosecution case. They have deposed that the accident was on account of the rash and negligent driving of the truck in question, by the accused. He further contended that the accused has not disputed that he was not the driver of the vehicle in question and he has not offered any explanation in the statement recorded under Section 313 of Cr.P.C. He submits that there is no illegality or infirmity in the judgment and order of conviction and sentence passed by the Courts below and accordingly he seeks to dismiss the petition.

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That, it is the case of prosecution that the accused was the driver of goods truck bearing Reg. No.MH-04/AL-6614 and in order to unload the bauxite, he was taking his vehicle in a reverse direction without taking any proper caution and in that process he came in contact with the lorry bearing Reg. No.MH-04/H-3915 which was parked in the factory premises. On account of which the deceased who was standing behind the said lorry closing the back door, was caught in between the two vehicles and sustained injuries and died. From the material on record it is seen that the accused has not disputed or denied that he was not the driver of the goods truck bearing Reg. No.MH-04/AL-6614. The evidence of P.W.1, who is also the complainant in the instant case goes to show that the lorry bearing Reg. No.MH-04/H-3915

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was parked in the compound of Indalc factory and himself and the deceased were fixing the door. It

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was about 1.30 a.m., at that time the accused brought his truck bearing Reg. No.MH-04/AL-6614 in a reverse direction on wrong side and dashed to the said truck. The deceased who was behind the truck was smashed and he died at the spot itself. P.W.6 has also deposed that the accident occurred while the accused was taking his truck in reverse direction and the said truck dashed against the other vehicle. To the said extent the evidence of P.W.1 has been corroborated by P.W.6. It was suggested to P.W.1 by the defence that while putting the doors of the body of the lorry, all of a sudden the driver of the said parked lorry drove the lorry and in that process one door of the vehicle fell on the deceased and he sustained injuries and died on account of the same. However, the said suggestion has been denied by P.W.1.

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The learned counsel for the petitioner, by pointing to the answer elicited from P.W.1, contended that someone else was the driver of the lorry and after the accident he fled away from the spot. However, it is not elicited from P.W.1 that the lorry driver of the parked vehicle was responsible for causing the accident and the said driver after causing the accident fled away from the spot. There is no reason for either P.W.1 or P.W.6 to falsely implicate the accused herein by letting the real culprit.

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It is the further contention of learned counsel for the petitioner that the accident occurred at about 1.30 a.m. and the spot mahazar does not indicate that there was any light, and therefore, he submitted that P.W.1 could not have witnessed the accident and identified the driver. However, P.W.1 has denied the said suggestion. It is to be noted that admittedly the lorries were

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parked in the factory premises and engaged in unloading bauxite and it cannot be said that the said unloading was being done without any source of light.

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It is also relevant to see that there is no explanation offered by the accused while he was examined under Section 313 of Cr.P.C. with regard to the manner in which the accident took place. The fact remains that the presence of the accused and he being the driver of the lorry in question is established by the prosecution. This Court in the case of State of Karnataka v. Vajrappa S/o. Mariyappa Bhuyar reported in 2018(1) AKR 53 at para 16 has observed as under :

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“16. Be that as it may. When respondent/ accused came to be examined under Section 313 of Cr.P.C., he has not explained his stand how the accident took place. It is the accused who will be having a greater opportunity to explain his stand

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about the manner in which the accident has taken place. When he has not made out any case, under such circumstances the evidence of eyewitness appears to be acceptable and trustworthy and it has to be taken into consideration. The overall evidence placed on record reveals that, there is sufficient material to show that, the accident in question has occurred due to the rash and negligent act of the respondent/accused and there is no mechanical defect or other cause for the accident.”

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The learned counsel for the petitioner has relied on a decision in the case of State of H.P. v. Kanshi Ram, reported in 2000 Crl. L. J. 1755 to contend that even in the present case there is no consistent and clear evidence led by the prosecution to prove that the accident resulting in death of deceased took place due to rash or negligent driving by the accused. In the said judgment, the learned Judge having considered the evidence of P.W.7 and P.W.10 held

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that they could not be the eye-witnesses to the incident as it was elicited in the said case in the cross-examination of the said witnesses.

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In the present case the eye-witness account appears to be acceptable and trustworthy. The trial Court having considered the oral and documentary evidence and after giving reasons convicted the accused. The Appellate Court after re-appreciation of the evidence on record has confirmed the conviction insofar as Section 304A of I.P.C. There is no illegality or infirmity in the orders passed by the Courts below. In that view of the matter, I pass the following :

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ORDER

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The revision petition is dismissed.

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Sd/JUDGE

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hnm

Balasaheb Mahadev Bhivate v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Balasaheb Mahadev Bhivate v. the State of Karnataka

Case brief

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