Partly allowed

Karthik K Somaiah v. the State of Karnataka by

Karnataka HC11 Jan 2022CRL.A/162/2015

Case brief

AI extract

What is this about?

The High Court allowed the accused's appeal in part, modifying the conviction from Section 304 IPC to Section 304A IPC. The sentence was adjusted to confirmed fines with imprisonment only on default, and compensation was awarded to the deceased's families. The State's appeal for enhancement was dismissed.

What did the court decide?

Appellant's appeal allowed in part: conviction modified to Section 304A IPC; sentence confirmed with fines and limited default imprisonment; compensation awarded. State's appeal dismissed.

Karthik K Somaiah Vs the State of Karnataka by — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF JANUARY, 2022

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PRESENT

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THE HON'BLE MR. JUSTICE B. VEERAPPA

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AND

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THE HON’BLE Mrs. JUSTICE M.G. UMA

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CRIMINAL APPEAL NO.162 OF 2015

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C/W

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CRIMINAL APPEAL NO.681 OF 2015

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IN CRL.A. NO.162/2015:

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BETWEEN:

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KARTHIK. K. SOMAIAH S/O. LATE SOMAIAH AGED ABOUT 35 YEARS R/AT NO.688, 9^TH A MAIN INDIRANAGAR 1^ST STAGE BENGALURU - 560 038.

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... APPELLANT

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(BY SRI: M.T. NANAIAH, SENIOR COUNSEL FOR SRI: M.R.C. MANOHAR, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY INDIRANAGAR TRAFFIC POLICE INDIRANAGAR BENGALURU - 560 008.

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... RESPONDENT

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(BY SRI: K. NAGESHWARAPPA, HCGP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 31.01.2015

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PASSED BY THE PRESIDING OFFICER, FTC-XIII, BENGALURU CITY, IN S.C.NO.963/2009 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 279, 304 OF IPC AND UNDER SECTIONS 185 AND 134(A)(B) READ WITH 187 OF INDIAN MOTOR VEHICLE ACT AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR 6 MONTHS AND TO PAY FINE OF RS.1000/- AND IN DEFAULT OF PAYMENT OF FINE AMOUNT HE SHALL UNDERGO SIMPLE IMPRISONMENT FOR ONE MONTH FOR THE OFFENCE PUNISHABLE UNDER SECTION 279 OF IPC. FURTHER,THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR 3 YEARS AND TO PAY FINE OF RS.3000/- IN DEFAULT OF PAYMENT OF FINE AMOUNT HE SHALL UNDERGO SIMPLE IMPRISONMENT FOR THREE MONTHS FOR THE OFFENCE PUNSIHABLE UNDER SECTION 304 OF IPC. FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR THREE MONTHS AND TO PAY FINE OF RS.500/- AND IN DEFAULT OF PAYMENT OF FINE AMOUNT HE SHALL UNDERGO SIMPLE IMPRISONMENT FOR ONE MONTH FOR THE OFFENCE PUNISHABLE UNDER SECTION 134(A)(B) READ WITH SECTION 187 OF INDIAN MOTOR VEHICLE ACT. FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR SIX MONTHS AND TO PAY FINE OF RS.2000/AND IN DEFAULT OF PAYMENT OF FINE AMOUNT HE SHALL UNDERGO SIMPLE IMPRISONMENT FOR THREE MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 185 OF INDIAN MOTOR VEHICLE ACT. THE AFORESAID SENTENCES SHALL RUN CONCURRENTLY AND THE APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.

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IN CRL.A. NO.681/2015:

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BETWEEN:

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STATE OF KARNATAKA BY INDIRANAGAR TRAFFIC POLICE STATION BENGALURU - 560 038

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... APPELLANT

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(BY SRI: K. NAGESHWARAPPA, HCGP)

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AND:

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SRI KARTHIK S/O. K. SOMAYYA AGED ABOUT 36 YEARS RESIDING AT NO.21/123, BDA MIG PLOT DOMMALURU BENGALURU - 560 071

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... RESPONDENT

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(BY SRI: M.T. NANAIAH, SENIOR COUNSEL FOR SMT: RACHITA NANAIAH, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 377 CR.P.C PRAYING TO ENHANCE THE SENTENCE IMPOSED BY THE LEARNED 13^TH FAST TRACK COURT, AT BENGALURU CITY IN S.C.NO.963/2009 DATED 31.1.2015 FOR THE OFFENCES PUNISHABLE UNDER SECTION 304 OF IPC AND SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR 3 YEARS AND TO PAY FINE OF RS.3000/- AND IN DEFAULT TO PAY THE FINE, SHALL UNDERGO SIMPLE IMPRISONMENT FOR THREE MONTHS. THE SPP/STATE PRAYS THAT THE ABOVE ORDER OF CONVICTION MAY BE ENHANCED BY IMPOSING SENTENCE.

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THESE CRIMINAL APPEALS COMING ON FOR FURTHER HEARING THIS DAY, B.VEERAPPA J. , DELIVERED THE FOLLOWING:

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COMMON JUDGMENT

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The accused who is the appellant in Criminal Appeal No.162 of 2015 is assailing the impugned judgment of conviction and order of sentence dated 31.01.2015 passed in SC No.963 of 2009 on the file of the Fast Track Court-XIII, Bengaluru City (hereinafter referred to as 'the Trial Court'), convicting him for the offence punishable under Sections 279, 304 of Indian Penal Code (for short 'the IPC') and under Sections 185, 134(a) (b) read with Section 187 of Indian Motor Vehicles Act (for short 'the MV Act') and sentencing him to undergo simple imprisonment for six months and to pay a fine of Rs.1,000/- and in default of payment of fine to undergo simple imprisonment for a period of one month for the offence punishable under Section 279 of IPC, he was sentenced to undergo simple imprisonment for a period of three years and to pay a fine of Rs.3,000/- and in default of payment of fine to undergo simple imprisonment for three months for the offence punishable under Section 304 of IPC,

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he was sentenced to undergo simple imprisonment for a period of three months and to pay amount of a fine of Rs.500/- and in default to undergo simple imprisonment for a period of one month for the offence punishable under Section 134(a)(b) read with Section 187 of MV Act and he was sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.2,000/- in default of payment of fine to undergo simple imprisonment for a period of three months for the offence punishable under Section 185 of MV Act.

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The State being the appellant in Criminal Appeal No.681 of 2015 is assailing the sufficiency of sentence passed by the Trial Court on the ground that the sentence imposed on the accused for the offence punishable under Section 304 of IPC is inadequate and seeks enhancement of sentence in the interest of justice.

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Brief facts of the case of prosecution is that, the statement of the injured K Kodandarama Reddy was recorded as per Ex.P29 while he was being treated in the hospital on 24.01.2009, wherein the injured has stated that on the said date at about 6.00 a.m. he had gone for a walk. Similarly

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Dr.Panathur, Siddaiah and Kempegowda have also came for morning walk and were proceeding on the footpath on 100 feet road, in Indiranagar. However, Siddaiah, Kempegowda and Dr.Panathur were at a distance. In the meantime, a cyclist was proceeding towards old madras road and suddenly a car driven in high speed, rashly and negligently came and dashed to the footpath and to the legs of the informant. After hitting the informant as well as to the cyclist, the driver took a turn and dashed to Siddaiah, Kempegowda and Dr.Panathur, as a result of which, all of them have fallen down and got injured. Several persons gathered at the spot. The informant stated that even the cyclist sustained injuries. The informant was shifted to Manipal Hospital in an Ambulance, where it was diagnosed as he has sustained fracture of left leg. He stated that Siddaiah, Kempegowda, Dr.Panathur and Radhakrishna, the cyclist have died at the spot. He also learnt that the offending car is Black Colour Honda Car bearing registration No.KA 01 MD-0008 and the driver after the accident had fled from the spot. Therefore, he requested the police to register the criminal case and to investigate into the matter.

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Accordingly, Indiranagar Traffic Police registered the case in Crime No.5 of 2009 for the offences punishable under Sections 279, 304 of IPC and under Sections 134(A)(B) of MV Act and took up investigation. After investigation, charge sheet came to be filed against accused for the offences punishable under Sections 279, 338, 304 of IPC and under Sections 185, 134(a)(b) read with Section 187 of MV Act. It is stated that during investigation, the informant K Kodandarama Reddy also succumbed to the injuries on 13.03.2009 i.e., 48 days after the incident. Thus, it is the contention of prosecution that the accused was the driver of the offending car, had driven the same in a rash and negligent manner, under the influence of alcohol and caused the death of Dr.Panathur, Kempegowda, Siddaiah and Radhakrishna and

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the cyclist at the spot and also caused grievous hurt to the informant K Kodandarama Reddy and thereby committed the offences as stated above.

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The matter was committed by the committal court and the Trial Court after securing the presence of accused framed charges against him. The accused pleaded not guilty for the charges leveled against him and claimed to be tried.

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The prosecution examined PWs.1 to 36, got marked Exs.P1 to 41 and identified Mos.1 to 3 in support of its contention. The accused has denied all the incriminating materials available on record and got examined DWs.1 to 4 and got marked Ex.D1 in support of his contention. The Trial Court after taking into consideration all these material on record came to the conclusion that the prosecution is successful in proving the guilt of the accused for the offences punishable under Sections 279, 304 of IPC and under Sections 185 and 134(a)(b) read with Section 187 of MV Act and sentenced him as stated above.

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Being aggrieved by the same, the accused has preferred Criminal Appeal No.162 of 2015 seeking for his acquittal and the State has also preferred the appeal in Criminal Appeal No.681 of 2015 seeking enhancement of sentence for the offence punishable under Section 304 of IPC.

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We have heard the learned counsel for the

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parties.

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Sri.M T Nanaiah, learned senior counsel for the appellant-accused contended that the prosecution has not

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proved the guilt of the accused beyond reasonable doubt. There is inordinate delay in recording the statement of the injured witness i.e., K Kodandarama Reddy. Even though the incident said to have been occurred on the broad day light in the heart of city, there is delay in registering the FIR. The witnesses examined are planted, even though they are not the eye witnesses. The evidence led by the prosecution is artificial and it cannot be believed even for a moment. There is inordinate delay in recording the statement of the so-called eye witnesses. None of the witnesses have identified the accused during investigation. The identification of the accused before the Trial Court is most improbable. The rash and negligent act on the part of accused is not proved by the prosecution. Even as per the case made out by the prosecution, the accident had occurred on the early morning and there was heavy mist. Under such circumstances, the car in question could not have been driven in a high speed. The accused has taken a specific defence that the cyclist had suddenly came across the road and in order to avoid him, the car had hit the footpath, which was about 3/4 and 1 feet height. Due to the impact, both the air bags have opened and

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as a result of which, the accused lost control of the vehicle and he has not caused the accident.

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The learned senior counsel further contended that there was no motive or intention on the part of accused to hit any of the persons. Under such circumstances, the prosecution should have placed cogent material to connect the accused to the offences in question. Even if the entire oral and documentary evidence placed before the Court are taken into consideration, the prosecution has failed to prove the guilt of accused beyond reasonable doubt. When the prosecution failed to prove the guilt of accused beyond reasonable doubt, no burden lies on the accused to take any defence or to disprove the case of prosecution. Even if the accused admits that he was driving the offending car at the time of incident and even though it is proved that about 4 persons have died at the spot, that will not dispense with the proof of rash and negligent driving of the car in question by the accused. The prosecution has failed to prove the manner in which the accident had occurred and what is the reason for such accident. There are glaring inconsistencies in the evidence led by the prosecution.

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Learned senior counsel submitted that the

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prosecution has not proved that the accused was intoxicated and it was a drunken drive, which has resulted in the accident. None of the witnesses have spoken that the accused was in drunken state, when the accident had occurred. The evidence of PWs.1 and 23 are not helpful for the prosecution to prove the same. It is most improbable to contend that the blood and urine sample said to have been collected contained alcohol as stated in Ex.P23. On the other hand, the accused examined DWs.1 to 4 in support of his defence and witnesses have specifically stated that there was defect in the car itself. Due to the impact with the footpath,

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the airbags have opened as a result of which, the driver lost control over the vehicle and he was not in a position to see anything in front of him and even he sustained injuries to his hands. In view of these materials on record, the Trial Court could not have formed an opinion that the accused who was

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the driver of the offending car was rash and negligent in driving the same, which has resulted in the death of four persons at the spot and that the accused was in a drunken state while causing the accident. Therefore, the impugned

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judgment of conviction and order of sentence passed by the Trial Court is to be interfered with by setting aside the same.

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Alternatively, learned senior counsel contended that by no stretch of imagination, Section 304 of IPC is applicable to the facts and circumstances of the case. Even according to the prosecution, it was the accident caused due to rash and negligent driving by the accused. Under such circumstances, even if the case of the prosecution is to be accepted, it is only Section 304A of IPC could be made applicable and not Section 304 of IPC. Therefore, it is clear that the Trial Court proceeded to convict the accused without application of mind and hence, the impugned judgment of conviction and order of sentence is liable to be set aside. Accordingly, he prays for allowing the appeal preferred by the appellant.

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Learned senior counsel placed reliance on the decision in the case of Naresh Giri Vs State of Madhya

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Pradesh¹ , to contend that it is the bounden duty of the prosecution to prove the rash and negligent driving of the offending car by the accused and such negligence should be

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1 (2008) 1 SCC 791

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gross negligence and not merely based on error of judgment. Relying on this decision, learned senior counsel submitted that the simple lack of care is not sufficient to attract Sections 279 or 304A of IPC.

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He also placed reliance on the decision of the Hon'ble Apex Court in the case of State of Karnataka Vs Satish² , to contend that the proof of driving the vehicle in high speed does not either amounts to rashness and negligence in itself. When the witnesses have spoken to about high speed, which is a relative term, and when there are no materials to form an opinion that the driver of the offending car was either rash or negligent in his driving, the accused was not liable for conviction.

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He also placed reliance on the decision of the Hon'ble Apex Court in the case of Syad Akbar Vs State of Karnataka³ , to contend that even if the principle of res-ipsaloquitor is to be made applicable, the primary requirement of law that the cause of accident is to be unknown and if there is no reasonable explanation as to the cause of such accident is

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2 (1998) 8 SCC 493

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3 (1980) 1 SCC 30

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forthcoming from the accused, when the accident had occurred not in the ordinary course of things and when such an event which resulted in the accident was within the control of the accused, then only the principle of res-ipsa-loquitor could be made applicable and not otherwise. In the present case, no such materials are placed before the Court to attract this principle of law and thus the conviction of the accused is bad in law.

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He also placed reliance on the decision of the learned Single Judge of this Court in the case of State Vs S Manoharan⁴ , to contend that it is the duty of the prosecution to connect the accused to the offence in question. When the accused is not identified in accordance with law as the driver of the offending car, the Trial Court could not have proceeded to convict the accused on presumptions and assumptions.

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Learned senior counsel even though filed compilation of citations with a memo, he has not referred to any other decisions which are produced in the compilation. Thus, the learned senior counsel would contend that the appeal has to be allowed and the impugned judgment of

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4 (2014) 3 KAR KANT 55

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conviction and order of sentence is to be set aside. He further submitted that if for any reason the Court is not inclined to accept the contention for acquittal of the accused, the conviction may be at the most under Section 304A of IPC and not under Section 304 of IPC. He also sought for maximum leniency in favour of the accused as he is the middle aged man having family. Accordingly, he prays for suitable orders in accordance with law.

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Per contra, Sri.K. Nageshwarappa, learned High

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Court Government pleader, while opposing the contention of the learned senior counsel, would contend that Ex.P1 is the spot mahazar and Ex.P17 is the spot sketch. PWs.1 and 2 have spoken to about the spot mahazar, whereas, PW18 has spoken to about the spot sketch. These documents disclose the scene of occurrence immediately after the accident. Four dead bodies were scattered on the spot. The offending car and the cycle in question were also scattered at the spot in a damaged condition. The accused has not disputed the fact that the car in question belongs to him, that he was driving the car at the time of incident and the accident has resulted in four spot deaths and one more death in the hospital after 48

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days. The prosecution examined PWs.3 and 35 who have categorically stated that the accused had consumed alcohol and he was under the influence of such alcohol at the time of accident. PWs.11 and 12 are the independent eye witnesses who have fully supported the case of prosecution. PW21 is the doctor serving in Bowring hospital, examined the accused and collected his blood and urine samples and issued Ex.P21 the medical certificate. The sample collected was forwarded for FSL examination and the report is as per Ex.P23, which clearly goes to show that the blood and urine sample contained alcohol above the permitted limit. The inquest mahazar and the postmortem report disclose that the persons died at the spot after sustaining severe injuries only due to rash and negligent driving of the accused. The injured eye witnesses and the informant K Kodandarama Reddy has given his statement on the date of incident itself while he was being treated in the hospital. PWs.11 and 12 - the eye witnesses have identified the accused before the Court and deposed about his rash and negligent driving. The accused has never disputed his identity throughout the trial, but on the other hand, he admitted that he was driving the car in question and

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caused the accident. Under such circumstances, the Trial Court was right in convicting the accused for the above said offences.

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Learned Additional State Public Prosecutor further submitted that admittedly, there were four deaths at the spot and other injured died in the hospital who had sustained fracture to his left leg. The spot sketch and the spot mahazar disclose the gruesome act of the accused. The conduct of the accused in leaving the car, the injured and the deceased and fleeing from the spot discloses that he has no respect to law nor he is having any humanitarian consideration. Under such circumstances, the Trial Court should have imposed maximum sentence on the accused under Section 304 of IPC. Therefore, he prays that the appeal filed by the accused is liable to be dismissed, while allowing the appeal preferred by the State.

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In view of the aforesaid rival contentions urged by the learned counsel for the parties, the point that arises for our consideration are:

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(i) Whether the appellant has made out any ground to interfere with the impugned judgment of conviction and of sentence and order of sentence passed by the Trial Court?

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(ii) Whether the appeal filed by the State deserves to be allowed?

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We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material, including original records, carefully.

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It is the specific contention of the prosecution that the accused had driven his Black colour Honda Accord car bearing reg No.KA 01 MD 0008 in a rash and negligent manner on 24.01.2009 at 6.05 hours on 100 feet road in Indiranagar near Dhoopanahalli bus stop, while he was under the influence of alcohol and dashed the same against a cyclist causing fatal injuries and again dashing to four other persons who were walking by the side of the road/footpath, which resulted in the death of three persons, including the cyclist and caused fracture of left leg to the injured K Kodandarama

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Reddy who was immediately shifted to the hospital, thereby the accused has committed the above said offences.

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This Court being the appellate Court, in order to re-appreciate the entire material on record, it is relevant to consider the evidence of prosecution witnesses and the documents relied upon.

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(i) PW11 - Anant Rao, deposed before the Trial Court stating that on the date of incident, he had gone for a morning walk in 100 feet road, Indiranagar and the deceased Dr.Pananthur, Siddaiah, Kempegowda. A K Reddy, Basavaraj, Srinivasa Reddy have also came for a walk. On the fateful day at 6.05 hours, the accused had driven his car from Koramangala side and initially dashed K Kodandarama Reddy. The car went on the foot path and it dashed to Dr.Pananthur, Siddaiah, Kempegowda and thereafter, it dashed to the cyclist Radhakrishna, as a result of which, the said Dr.Pananthur, Siddaiah, Kempegowda and Radhakrishna have died at the spot. The car of the accused and the cycle got damaged, the informant K Kodandarama Reddy sustained fracture of left leg. He identified Exs.P12 and 13 as the photographs of damaged cycle. Witness stated that since the accident had occurred in

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front of his eyes, he could not give statement to the police on the same day. During cross examination by the learned counsel for the accused, the witness stated that he knew the deceased since 7 to 8 years, he used to go for a walk with them since from 4 to 5 years. Witness denied the suggestion that during that time in Bengaluru, there was heavy mist at 6.00 a.m. and there will not be sunrays. Witness denied the suggestion that the footpath at the scene of occurrence was about 1 feet height from the road. Witness denied the suggestion that there was a road divider in the middle of the road. This witness is cross examined at length regarding the place, the deceased and injured were at the time of accident and as to what he had done after seeing the accident. Witness stated that immediately after seeing the devastating accident, he went to the house of deceased Dr.Panathur and informed the inmates about the accident. He could not inform the police and went to his house. On the next day, police came and enquired him. Subsequently, he gave statement to the police. Witness stated that he has not seen that the airbags in the car have opened. He denied the suggestion that Exs.P2 to P5 were not taken at the spot. Witness also denied the suggestion that deceased were proceeding on the road and

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suddenly the cyclist came in front of the car and therefore, the driver of the car took the car to the extreme left side, as a result of which, the bumper of the car dashed to the footpath and the airbags have opened. Witness also denied the suggestion that since the airbags were opened, the driver lost control over the vehicle and therefore, the car had hit the deceased. The witness admitted that the injured K Kodandarama Reddy was discharged from the hospital and was in his house. He died on 13.03.2009 while he was in his house. He pleaded his ignorance that he died due to heart attack. Witness denied the suggestion that he is deposing falsely and that the accident had not occurred due to the rash and negligent driving of the accused and since there was heavy mist, there was poor visibility.

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(ii) PW12 - Balakrishna is the another eye witness to the incident. He also corroborated the evidence of PW11. Witness stated that he is the autorickshaw driver and at the time of accident, he was at the spot, waiting for passengers and had seen the accident. The witness identified the accused as the driver of offending car and stated that the accident was due to his rash and negligent driving. He identified Exs.P2 to P5 as the photos of car in question and Exs.P12 and 13 as the photos of damaged cycle. Witness also stated

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that spot mahazar was drawn by the police and his statement was recorded by them. This witness was also subjected to lengthy cross examination, but nothing has been elicited from him to disbelieve his version. It is interesting to note that during cross examination of both the eye witnesses i.e., PWs.11 and 12, learned counsel for the accused suggested that the driver of offending car tried to avoid the cyclist who suddenly came across the road and as a result of which, the car went on the extreme left side and the bumper of the car hit the footpath as a result of which, the airbags have opened. Since the airbags were opened, the driver lost control and the car dashed to the pedestrians. Both the witnesses have denied these suggestions. It is also interesting to note that PW11 has stated that the accused was the driver of offending car and after causing the accident, he gone away from the scene of occurrence and at that time, he was drunken and swinging.

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(iii) PW3 - Sharath, is the friend of the accused. This witness states that the accused used to visit Indiranagar club as he was also visiting the club frequently. He also stated that on the previous night of the accident, he had seen the accused in Indiranagar club along with Miss.Shehnaz and it was about 7.30 p.m. Witness stated that he was

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in the club till 9.00 p.m. and the accused along with Miss.Shehnaz was in a table with DSP whisky and he consumed the same. On the next day morning the accident had occurred. Even though the witness was cross examined by the learned counsel for the accused, there is no specific denial about the evidence deposed by the witness regarding the accused consuming alcohol on the previous night.

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(iv) PW4 - Raghavendra is also the friend of accused and stated that on the previous night of accident, the accused had visited the club in Indiranagar and the witness stated that he was there till 12.30 to 1.00 in the midnight. He also stated that several friends have gathered in the said club, as one of his friend by name Shreyas was about to fly to America on the next day. However, witness has not supported the case of prosecution that the accused had consumed alcohol on that day. Therefore, witness was treated partially hostile and the portion of his statement is marked as Ex.P7.

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(v) PW5 - Samith Kumar is also one of the friend of the accused. This witness also stated that he along with the accused used to visit Indiranagar club. The accused used to take one or two peg whisky. Witness also states that after knowing

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about the accident caused by the accused, he went to the spot, but the accused was not there. His car was near the footpath. There were three to four dead bodies lying at the scene of occurrence. During cross examination by the learned counsel for the accused, witness stated that he has visited the spot at 6.45 a.m. and several persons were gathered at the spot. However, witness admitted the suggestion that at 6.00 a.m. there will not be sufficient light and the vehicles were plying with head lights on till 7.00 a.m.

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(vi) PW6 - Umesha is the waiter in Indiranagar club who also states that the accused was the member of the club and that on the previous night of the accident, the accused had came to the club in the night at 8.00 - 8.30 p.m. and he had served him DSP black whiskey. The accused was also accompanied by a lady. There were 8 to 10 friends of the accused who have also visited the club. He identified Exs.P8 and P9 as the bill relating to the accused and stated that Ex.P8 refers to the name of the accused and Ex.P9 is in the name of one Sharath who is the friend of the accused. Witness identified the accused before the Court. However, the witness has not fully supported the case of prosecution. Therefore, he was partially treated hostile. Portion of his

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statement before the Police is marked as Ex.P10. Even though the learned counsel for the accused cross examined him at length, the evidence deposed by the witness is not at all denied during such cross examination.

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(vii) PW7 - Shahnaz is one of the friend of the accused who stated that she also used to visit Indiranagar club. Witness stated that she used to meet the accused atleast for 2 to 3 days in a week in the club. On the previous day, she had met the accused in club at about 8.30 p.m. and both of them came out of the club at 11.00 p.m. The accused had consumed whiskey on that day.

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(viii) PW14 - Pavan is also the friend of the accused who stated that on the date of incident at about 7.45 - 8.00 a.m., the accused had came to his room and informed that he had caused the accident. He was frightened. There was a telecast in the TV regarding the accident. On seeing the same, the accused started crying. Witness stated that he informed the same to the father of the accused, who came and took the accused. Witness stated that he had visited Shivajinagar and Indiranagar Police Station. This witness is not cross examined by the learned counsel for the accused.

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(ix) PW21 - Dr.Radhakrishna is the Medical Officer in Bowring Hospital, Bengaluru. Witness stated that the accused was brought on 24.01.2009 at 7.10 p.m. with a request to collect the blood and urine sample to find out as to whether it contain alcohol. Accordingly, he drawn the blood and urine samples of the accused, after registering the MLC as per Ex.P21. Witness identified the accused before the Court. Witness stated during cross examination that the 1st page in Ex.P21 contains his handwriting and the remaining portion is written by the other doctors. Witness admitted that as per the remark given by medicine-3 section, the accused was conscious when he was examined and he had no ataxia. Witness stated that as per Ex.P21, the accused had sustained injury on left and right wrist. Witness denied the suggestion that he had not obtained any permission from the accused to collect samples and that he has given false report.

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(x) PW23 - Dr.Rekha is the Senior Chemical Analyst in Bengaluru General Hospital. Witness stated that she has received the blood and urine samples of the accused sent by Investigating Officer for analysis. She has forwarded the report as per Ex.P23 along with her opinion after analyzing the same. She found 185.0 mg per 100 ml alcohol in the blood sample and 249.7 mg per 100 ml

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alcohol in the urine sample. Witness stated that the persons from whom the samples were drawn was under the influence of alcohol above the permitted limit. This witness was cross examined by the learned counsel for the accused suggesting that there are latest and sophisticated methods of detecting alcohol in blood and urine, but the witness stated that she adopted steam distillation method to find out the percentage of alcohol. She denied the suggestion that she is not competent to conduct chemical examination and determine the percentage of alcohol and the lab in which she tested the sample was not sophisticated. She also denied the suggestion that she has given a wrong opinion and issued false report as per Ex.P23.

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(xi) PW34 - Manjunath is the Police Sub Inspector in Indiranagar Traffic Police Station. Witness stated that on 23.01.2009, he was on night duty. On 24.01.2009 at 6.10 a.m., he received information from police control room regarding the road traffic accident on 100 feet in Indiranagar near Dhoopanahalli bus stop. Immediately, he visited the spot. A Black colour Honda Accord car bearing reg No.KA 01 MD 0008 had caused the accident. Four dead bodies were lying by the side of the road. The car and the cycle found damaged. He learnt from the eye witnesses that the driver of the car who caused the accident had

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gone away from the spot in an autorickshaw. He was drunken and swinging. Sri.Srinivasamurthy, Assistant Commissioner of Police came to the spot and the dead bodies were shifted to Bowring Hospital. One of the injured by name K Kodandarama Reddy was also shifted to hospital. During cross examination, witness pleaded his ignorance regarding the person who informed him that the driver of the offending car had gone away in an autorickshaw.

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(xii) PW35 - Purushothama is the Manager of Indiranagar club and stated that as per request of Investigating Officer, he has issued Exs.P31 to 34. Ex.P32 relates to the accused and as per Ex.P33 the accused had visited the club on 23.01.2009 along with a lady guest. He had purchased two pegs of DSP black whiskey, potato chips packet and mineral water bottle at 12.28 on the intervening night 23-24.01.2009. Similarly, at the same time, one Sharath had purchased 7 pegs of DSP black whiskey, cigarette packets, backardy beer, water bottled, pea nuts etc., This witness was also cross examined at length by the learned counsel for the accused, but nothing has been elicited to disbelieve his evidence. He specifically denied that Exs.P31 to 34 were concocted and produced before the Court.

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(xiii) PW36 - Srinivasamurthy is the Investigating Officer, being the Assistant Commissioner of Police at East Traffic sub division. Witness stated that he received information from the control room at 6.20 to 6.30 a.m. on 24.01.2009 regarding the accident that had occurred on 100 feet Indiranagar road and immediately visited the spot. PW31 - Eeranna Balagurgi was present at the spot and he shifted the injured to the hospital. He was instructed to record the statement of the injured. Four dead bodies lying at the spot were shifted to Bowring Hospital after conducting spot mahazar as per Ex.P1. MOs.1 and 2 were seized from the spot during panchaname. Exs.P2 to 5 are the photographs that were taken at the spot. The negatives are at Exs.P35 to 37. Witness stated that an advocate by name Chauhan had came to Shivajinagar traffic Police Station on 24.01.2009 at 5.30 p.m. and produced the accused. Accused was apprehended after following the procedure. On examination with the breathe analyzer, he was smelling alcohol and tested 19 mg per 100 ml alcohol in the blood. The report in that regard is as per Ex.P40. Therefore, he gave a requisition to alter the penal provisions from 304A to 304 of IPC. During crossexamination by the learned counsel for the accused, witness stated that he visited the spot at

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7.00 a.m., and the public have gathered at the spot. The police were also present. The damaged car and bicycle were kept by the side of the road for clearing the traffic. Witness denied the suggestion that the permitted speed on 100 feet road, Indiranagar, where the accident occurred was 60 kilometers per hour. Witness stated that both the air bags of the car were opened and he also stated that the car had rubbed the side stone from south to north for about 45 meters as mentioned in Ex.P21. Witness stated that if any hard substance touches the front bumper, the air bags will open immediately and automatically. However, he made it clear that opening of the air bags would be possible only if the bumper touches the hard surface with certain speed. Witness stated that the spot mahazar as per Ex.P1 was drawn as shown by the eye-witnesses, but denied the suggestion that the same was prepared in the police station. Witness stated that he had collected the blood and urine samples form the accused with the help of Medical Officer and sent the same for chemical examination. He denied the suggestion that the samples were never sent for FSL examination. Witness stated that presence of alcohol at 30 mg per 100 ml in the blood is permissible. He denied the suggestion that the accused had never consumed alcohol nor driven

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the car in a high speed. He also denied the suggestion that in order to avoid the speeding cyclist who came across the road suddenly, the accused took his car to the extreme left side of the road, as a result of which, it dashed to the side stone and the air bags were opened and this is the cause for the accident.

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The accused has examined DWs.1 to 4 in support

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of his defence.

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(i) DW.1 - Manish Pashwani is friend of the accused and claims to be an eye-witness to the incident. Witness states that at the time of accident, he was at the spot proceeding in his car and noticed that the car is belonging to the accused. The car of the accused was proceeding ahead about 30 feet away and he was following the same. There was heavy mist and the road was not visible. The car of the accused tried to avoid a cyclist and hit the footpath on the left side. Witness stated that he also stopped the car and went to the spot. The accused had caused the accident and informed that he lost control over the car and as a result of which, the accident had occurred. The persons who were proceeding by the side of the road got injured, the air bags were opened, several public were gathered and assaulted the accused.

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Therefore, accused ran away from the scene of occurrence. The police came to the spot about half an hour late and one of the injured was shifted to the hospital. It is stated that the accident had not occurred due to the fault of the accused. The accused had also sustained injuries, but he was not in a position to talk. Witness stated that he had not felt that the accused had consumed alcohol. During cross-examination by the learned Prosecutor, witness stated that he know the accused since 2007. Since both of them used to visit Indiranagar club they were knowing each other. Witness stated that he had been to play golf and had returned to the house and as he had forgotten the shoe. Witness admitted that when there was heavy mist, one cannot play golf. Witness stated that since he had also had the head light on and so also the accused, he could see the car of the accused from about 30 feet away even though there was heavy mist. Witness stated that about 3-4 persons have sustained injuries in the accident but he had not informed the police about the accident. Police enquired his name, address etc. He denied the suggestion that he is falsely deposing, even though he is not an eye-witness to the incident and only for the reason that the accused is his friend.

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(ii) DW.2 - Dr.Kiran is working as faculty in Forensic Medicine in Devraj Urs Medical College. He has done MBBS, MD., in Forensic Medicine and he is having the experience of about 20 years in conducting post mortem examination. He also conducted breathe analyzer to find out the drunk and driving. Witness stated that he adopt gas chromatography and max spectrometer to find out the percentage of alcohol in the blood. Witness stated that steam distillation method is also available to find out the alcohol in the blood but since it is an old method, it cannot state the percentage of alcohol in the blood by adopting the said method. Witness stated that if the blood of a person contains alcohol at 185 mg per 100 ml he will be in a drowsy condition. He will not be in a position to walk or do any job. During crossexamination, witness stated that by adopting steam distillation method, one can find out the alcohol in the blood and urine. He denied the suggestion that he is deposing falsely even though in the steam distillation method the percentage of alcohol in blood and urine can be find out.

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(iii) DW3 - Mallesh is a retired Assistant Director at FSL Bengaluru. Witness stated that he had conducted blood sample test of more than 150. He generally conduct test by adopting steam distillation and titration examination to find out

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the percentage of alcohol in the blood and urine. He also adopt steam distillate with gas chromatography to find out the above result. Witness stated that by adopting only steam distillation method, the percentage of alcohol in blood and urine cannot be find out. However, by adopting the said method, the alcohol in blood and urine could be separated. During crossexamination, the witness denied the suggestion that even by adopting steam distillation method, percentage in blood and urine could be found out and he is deposing falsely.

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(iv) DW4 - Muthappa is an ITI professional. Witness stated that he served for about 13 years as Service In-charge Manager in Hyundai Company. He knows the mechanism of the car. Witness stated that the air bags will be placed in the center of the steering and in the dash board. If the car proceeds 30 kilometers speed and if dashes against any other vehicle, the air bags will be opened within a second. If the car dashed to the footpath, then also the air bag will be opened. The air bag will be like a balloon and it will cover the head and face of the driver. Since it separates the driver from the steering, he loses control over the car. Witness also stated that since there was a defect in air bag, Honda and Neson cars were withdrawn from the market.

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Witness stated that since ALBS i.e., anti lock break system was provided to the car in question, there is no chance of skidding and there will not be tyre mark on the road in case of accident. During cross-examination, witness admitted that his qualification in ITI is below Diploma. Witness stated that in case of impact, both the air bags will be opened, but denied the suggestion that he is deposing falsely in favour of the accused, even though he does not know anything about the car and accident in question.

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25. Based on the aforesaid oral and documentary

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evidence on record, the learned Sessions Judge has proceeded to convict and sentence the accused for the offences punishable under Sections 279, 304 of IPC and under Sections 185, 134(a) (b) read with Section 187 of MV Act.

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From the documents - Ex.P1 - spot panchanama, Exs.P2 to 5 - photos of car, Exs.35 to 37 - negatives, Exs.P12 and 13 - photos of cycle, Exs.P8 and 9, 31 to 34 - credit bills and Ex.P39 - reply to notice, it is clear that the accused himself was driving the car in question on the date of incident as admitted by him in Ex.P39 and spoken to by the eyewitnesses - PWs.11 and 12, which is supported by other

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witnesses who have spoken to about consuming of alcohol by the accused on the previous night. The version of the witnesses is also supported by the evidence of PWs.21 and 23 regarding drawing of blood and urine sample and the presence of alcohol in the blood and urine of the accused beyond permissible limit, as stated in Ex.P23. Apart from candid admission of the accused that he was driving the offending car in question in Ex.P39, which is never disputed by the accused during cross-examination of PW.36 and the tenor of cross-examination of various witnesses disclose that the accused did not dispute the contention of prosecution that he himself was the driver of offending vehicle at the time of accident.

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Under the provisions of Section 185 of MV Act, if a person with his blood containing the alcohol exceeding 30 mg per 100 ml is detected in test by a breath analyzer, is said to be a drunken person, driving the vehicle which is punishable with imprisonment which may extend to six months or with fine or with both. As per Ex.P23, the blood and urine samples of the accused were sent for chemical examination which showed the result of percentage of alcohol in the blood at

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185.0mg per 100ml and percentage of alcohol in his urine was 249.7mg per 100ml. The chemical examiner-PW23 has given her opinion that the accused was under the influence of alcohol.

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It is pertinent to note that the accident in question had occurred on 24.1.2009 at 6.05 hours. The accused had escaped from the spot and surrendered before the police only in the evening and his blood and urine samples were collected by PW21 in Bowring Hospital on the said date at 7.10 p.m. When the blood and urine contained alcohol as stated in Ex.P23, which was much more than the percentage mentioned in Section 185 of MV Act, we can imagine the percentage of such alcohol in his blood and urine at the time of accident. Therefore, we do not have any hesitation to hold that the accused was under the influence of alcohol at the time of accident.

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The materials on record discloses that the accident had occurred on 100 feet road in Indiranagar at 6.05 hours. Admittedly, there were no heavy vehicular traffic. Taking advantage of the same, the accused had driven the car

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in a rash and negligent manner and dashed to the deceased and the injured. The manner in which the accident had occurred, which has resulted in death of four innocent persons who were proceeding on road for a walk and injury to another person and further the details of topography at the scene of occurrence mentioned in Ex.P1 - spot mahazar and Ex.P2 - spot sketch discloses that the car in question had dashed to the footpath and went further to some distance and again came on the main road and again went on the footpath before halting. PW36 - Srinivasamurthy, the Investigating Officer has specifically stated that the car had proceeded 45 meters from the spot where it first hit the footpath where the injured K Kodandarama Reddy had fallen at the spot and four dead bodies were lying. This shows the rashness with which the car was driven by the accused.

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The learned senior counsel contended that the prosecution has not proved that the accused was driving the car in question and further it has not proved that the car was driven in a rash and negligent manner. He submitted that all the material witnesses have spoken to about the car driven in high speed, but nobody have stated that it was driven in a

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rash and negligent manner. Such contention of the learned senior counsel for the accused cannot be accepted in view of the discussions held above. The accused himself has categorically admitted that he was driver of the offending car and the tenor of cross-examination also supports the contention of prosecution. PWs.11 and 12 - the eye-witnesses have categorically stated regarding the rash and negligent driving of the car by the accused, which is also supported by the topography at the scene of occurrence including the scratch mark found at the spot, scattering of the dead bodies and the injured. Moreover, there is no explanation to the candid admission of the accused about he being the driver of the offending car which caused the accused in EX.P39 - the reply by the accused.

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The accused has denied the incriminating materials available on record and given his statement under Section 313(5) of Cr.P.C., taking specific defence. The accused has categorically admitted that he was driving the car in question at the time of accident. It is his defence that he was driving the car slowly and cautiously on the left side of the road and a cyclist suddenly came across the road. There

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was heavy mist and the accused tried to avoid collusion of the car with the cyclist and took the car on the left side, as a result of which, the car hit the road side curb stone and both the air bags were opened. He could not see the road and lost control over the vehicle. The accused has also stated that in all Honda accord cars manufactured between 2001 to 2002, there was manufacturing defect and few lakhs of cars across the globe were replaced due to defective fitment of air bags. Accused has also stated that immediately after the accident, he came out of the car and made arrangements to shift the injured. Several persons have gathered at the spot and fearing that they may assault him he left the place to save himself. Therefore, he could not even report the matter to the police in time. He contacted his friends and family members and as per their advise he went to the police station. It is stated that he has not consumed liquor but the police falsely implicated him in the case. It is stated that the accident had occurred mainly due to his act to save the cyclist and therefore he is innocent.

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The defence taken by the accused in his statement, if considered in the light of oral and documentary

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evidence placed before the Court, clearly goes to show that nothing but self serving defence to save his skin, which is not supported by the materials that are placed before the court. Even motor accident report produced as per Ex.P22 discloses that there were as many as 26 damages caused to the car in question which shows the force with which the car had hit the footpath and the road side curb stone and even then proceeded further for about 45 meters, where tyre marks were found at the spot. These facts and circumstances itself discloses the rash and negligent driving of the car by the accused.

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33. The prosecution examined PW23 - Dr.Rekha who

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examined the blood and urine sample of the accused and issued Ex.P23. It is pertinent to note that PW23 is a senior specialist in K C General Hospital with B.Sc and MBBS qualification. It is stated that she served for 29 years as a Doctor. Witness specifically stated that she adopted steam distillation method for analyzing the sample before issuing Ex.P23. This witness was cross-examined at length by the learned counsel for the accused regarding various other method adopted for finding the percentage of alcohol in the

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blood and urine. Witness admitted that there are other advanced method. It is pertinent to note that the witness was not cross-examined on the ground that the percentage of alcohol could not be detected in the blood and urine by adopting steam distillation method. It is elicited by the witness that if the person in having 150 to 200mg of alcohol per 100 ml, such person will not be in a position to walk, speak properly. Nothing has been elicited from this witness to disbelieve her version or to contend that she has not conducted examination before issuing Ex.P23 or that she has issued the document deliberately to help the prosecution. There is nothing to disbelieve the version of PW23 who served as Doctor for several years in the Government Institution. It is only while examining DWs.2 and 3, for the first time a stand is taken that the percentage of alcohol could not be detected in blood and urine by steam distillation method. Therefore, it is to be concluded that it is only an afterthought by the accused to save his skin. The evidence of DWs.2 and 3 will not help the accused in any manner to falsify Ex.P23 and the evidence of PW23.

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The accused examined DW1 as an eye-witness.

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The evidence of this witness is so artificial, who says that

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there was heavy mist and the road was not visible. But however, he identifies the car of the accused from about 30 feet distance. Admittedly he is a close friend of the accused. He has not chosen to report the matter to the police immediately after the incident. His statement was also not recorded by the police which itself falsifies his contention that he was an eye-witness and he was at the spot immediately after the incident. The prosecution examined PW14 - Pavan, the friend of the accused who stated that the accused had came in an Auto Rickshaw to his room and informed about the accident. Neither the accused nor PW14 state about DW1 who met the accused immediately after the incident. Therefore no importance could be attached to the evidence of DW1.

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DW4 - Muthappa speaks about the defect in the air bags of Hyundai cars. But it is not the contention of accused that his car had such defect and due to the same, the accident had occurred. On the other hand, it is specific contention that the air bags were opened immediately after

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the impact. Therefore, the evidence of DW4 is in no way helpful to the accused.

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The discussions held above disclose that even though the prosecution is successful in proving the guilt of the accused beyond reasonable doubt, the accused is not successful in probabalizing his defence. Therefore, the accused is liable for conviction for the offence punishable under Sections 279, 304A of IPC.

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We have considered the impugned judgment of conviction and order of sentence passed by the Trial Court. Even though, the Court has proceeded to convict the accused for the offence punishable under Section 279 of IPC and under Sections 185, 134 (a) (b) read with 187 of MV Act, it has committed an error in convicting the accused for the offence punishable under Section 304 of IPC as it is not the contention of prosecution that the accused had committed culpable homicide not amounting to murder with an intention of cause death or bodily injury.

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Learned senior counsel contended that the prosecution is not successful in connecting the accused to the

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offences in question. None of the witnesses have specifically identified the accused as the driver of offending vehicle at the time of accident. Under such circumstances, the Trial Court could not have convicted the accused. Learned counsel placed reliance on the decision of Manoharan (supra). In the said case, the learned Single Judge of this Court has considered the facts and circumstances of the case and dismissed the appeal. The accused in the said case was charged for the offences punishable under Sections 279, 337 and 304A of IPC and he was convicted for the same. When the accused challenged the judgment of conviction and order of sentence before the learned Sessions Judge, the appeal came to the allowed by holding that the identity of the accused has not been properly established by the prosecution. This judgment of acquittal was challenged before this Court by the State. The learned Single Judge dismissed the appeal on the ground that even after re-appreciation of the materials on record, one cannot definitely say that the prosecution has proved the identity of the accused as the driver of offending vehicle. But in the present case, the tenor of cross examination of the prosecution witnesses, the document

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Ex.P39 and the defence taken by the accused disclose that the accused has categorically admitted that he was the driver of offending car. Moreover, the accused has filed his written statement under Section 313 (5) of Cr.P.C. categorically stating that it was he who was driving the car in question at the time of accident. Therefore, it would not lie in the mouth of the accused to contend that the prosecution is not successful in connecting the accused to the offence in question. Moreover, PWs.11 and 12 who are the eye witnesses have specifically identified the accused as the driver of car in question at the time of accident. Therefore, the decision relied on by the learned counsel is not helpful for the accused.

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Learned senior counsel further submitted that the prosecution should have proved the rash and negligent act on the part of accused in strict sense of the terms. He placed reliance on the decision in Naresh Giri (supra) to contend that since the negligence is an essential ingredients of the offence, the same is to be proved by the prosecution. Mere negligence based on error of judgment is not sufficient to convict the accused.

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We have given our anxious consideration to the decision relied on by the learned senior counsel. The facts and circumstances of the said case is entirely different to the present facts and circumstances. In the said case, the accused who was charged for the offence punishable under Section 302 of IPC, challenged the correctness of the charge framed. The revision petition came to be filed and the revision was dismissed by holding that there are materials available for framing charge under Section 302 of IPC, alternatively, Section 304 of IPC, therefore, the contention of the accused that the case falls under Section 304A of IPC cannot be accepted. The said order was challenged before the Hon'ble Apex Court by the accused, wherein, the Hon'ble Apex Court considered the facts of the case that the bus driven by the accused was hit by a train at the railway crossing, resulting in the death and injuries to the passengers and held that Section 302 of IPC has no application as there was no intention to kill the passengers and at the most it may be under Section 304A of IPC. Accordingly, the charge stand altered to Section 304A along with Sections 279 and 337 of IPC.

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In the present case, based on the complaint made by the complainant-K Kodandarama Reddy dated 24.01.2009, the police registered the case at 9.00 a.m. on the same day in Crime No.5 of 2009 for the offences punishable under Sections 279 and 304 of IPC and under Sections 134(a)(b) of the MV Act against unknown person. Accordingly, the jurisdictional police registered the FIR as per Ex.P30. The jurisdictional Investigating Officer considering the entire materials on record, proceeded to file the charge sheet against the accused under the provisions of Sections 279, 338, 304 of IPC and under Sections 185, 134(a)(b) read with Section 187 of MV Act.

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The learned Sessions Judge framed charge on 19.09.2011 in respect of said provisions and proceeded to convict the accused under the provisions of Sections 279, and 304 of IPC and under Sections 185, 134(a)(b) read with Section 187 of MV Act. The provisions of Section 304 of IPC prescribes the punishment for culpable homicide not amounting to murder.

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A plain reading of the said section makes it clear

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that it is in two parts. The first part of the Section is generally referred to as “Section 304, Part I”, whereas the second part as “Section 304, Part II”. The first part applies where the accused causes bodily injury to the victim with an intention to cause death; or with intention to cause such bodily injury as is likely to cause death. Part II, on the other hand, comes into play when the death is caused by doing an act with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death.

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44. The Makers of the Code observed;

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“The most important consideration upon a trial for this offence is the intention or knowledge with which the act which caused death, was done. The intention to cause death or the knowledge that death will probably be caused, is essential and is that to which the law principally looks. And it is of the utmost importance that those who may be entrusted with judicial powers should clearly understand that no conviction ought to take place, unless such intention or knowledge can from the evidence be concluded to have really existed”.

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45. The Makers further stated;

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“It may be asked how can the existence of the requisite intention or knowledge be proved, seeing that these are internal and invisible acts of the mind? They can be ascertained only from external and visible acts. Observation and experience enable us to judge of the connection between men’s conduct and their intentions. We know that a sane man does not usually commit certain acts heedlessly or unintentionally and generally we have no difficulty in inferring from his conduct what was his real intention upon any given occasion”.

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46. Before invoking Section 304 of IPC, the following

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ingredients must be satisfied;

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(i) the death of the person must have been caused;

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(ii) such death must have been caused by the act of the accused by causing bodily injury;

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(iii) there must be an intention on the part of the accused

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(a) to cause death; or

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(b) to cause such bodily injury which is likely to cause death; (Part I) or

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(iv) there must be knowledge on the part of the accused that the bodily injury is such that it is likely to cause death (Part II).

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The provisions of Section 304A of IPC was inserted by the Indian Penal Code (Amendment) Act, 1870. The provisions of the said Section deals with homicidal death by rash or negligent act. It does not create a new offence. It is directed against the offences outside the range of Sections 299 and 300, IPC and covers those cases where death has been caused without ‘intention’ or ‘knowledge’. The words “not amounting to culpable homicide” in the provision are significant and clearly convey that the section seeks to embrace those cases where there is neither intention to cause death, nor knowledge that the act done will in all probability result into death. It applies to acts which are rash or negligent and are directly the cause of death of another person.

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There is thus distinction between Section 304 of IPC and Section 304A of IPC. Section 304A of IPC carves out cases where death is caused by doing a rash or negligent act which does not amount to culpable homicide not amounting to murder within the meaning of Section 299 or culpable

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homicide amounting to murder under Section 300, IPC. In other words, Section 304A excludes all the ingredients of Section 299 as also of Section 300. Where intention or knowledge is the motivating force of the act complained of, Section 304A will have to make room for the graver and more serious charge of culpable homicide not amounting to murder or amounting to murder as the facts disclose. The section has application to those cases where there is neither intention to cause death nor knowledge that the act in all probability will cause death. In view of the above, the conviction for offence punishable under Section 304 as find by the learned Sessions Judge is without any basis.

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The learned senior counsel also placed reliance on the decision of Syad Akbar (supra) to contend that the principle of res ipsa loquitor is not applicable to the facts of the present case. The Hon'ble Apex Court considered the principal of res ipsa loquitur and the essentials facts that are to be proved to attract this principle and held that firstly, all the circumstances including the objective circumstances constituting the accident, from which the inference of guilt is to be drawn must be firmly established. Secondly, those

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circumstances must be of a determinative tendency pointing unerringly towards the guilt of the accused. Thirdly, the circumstances should make a chain so complete that they cannot reasonably raise any other hypothesis save that of the accused's guilt, that is, to say, they should be incompatible with his innocence and inferentially exclude all reasonable doubt about his guilt. If these principles of law laid down by the Hon'ble Apex Court to apply the principle of res ipsa loquitur to the facts and circumstances of the present case, the facts that are proved by the oral and documentary evidence placed before the Court which are discussed at length above, unmistakably points towards the guilt of the accused and there is no other hypothesis than the one as contended by the prosecution. By no stretch of imagination, it could be said that the accused was not rash or negligent in driving his car in question.

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The prosecution also relies on the version of eye witnesses i.e., PWs.11 and 12 to prove the gruesome act of rashness and negligence by the accused, which has resulted in four deaths at the spot and one person sustaining grievous hurt. Even though the accused has taken a specific defence

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that he was not rash and negligent in driving, there is absolutely no explanation as to how the car could go off the road, hit the curb stone and cause the death of one person at point B and thereafter, proceed further and hit the other deceased at point C and again proceeding further on and off the footpath and dashing three other persons and causing their deaths at points H, I and J in the spot sketch Ex.P1C. The conjoint consideration of the spot mahazar and the spot sketch relied on by the prosecution which are not seriously disputed that the offending car proceeded for about 45 meters even after dashing and causing the death of persons at point B in the sketch, unmistakenly points the accusing finger towards the accused.

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If the contention of accused that he was driving the car cautiously and slowly within about 30 to 40 km per hour, the car could not have been proceeded for about 45 meters before coming to a halt. Even if the contention of accused that the airbags were opened and as a result of which, he lost control over the vehicle is to be believed, unless it was in high speed and driven in a rash and negligent manner, it could not have been hit so many pedestrians

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proceeding for about 45 meters before halting. There is absolutely no explanation by the accused about these clinching materials on record. Therefore, the decision relied on by the learned senior counsel, wherein, the requirement for application of the principle of res ipsa loquitur could be made applicable in the present case even if the version of the eye witnesses PWs.11 and 12 is to be ignored for a moment.

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In view of the discussions held above, we are of the opinion that the prosecution is successful in proving that the accused was the driver of the offending car, driven the same in rash and negligent manner and caused death of four persons and caused injuries to one of the pedestrian. The prosecution also proved that the accused was under the influence of alcohol beyond the permitted limit which also contributed the accident in question. Thereby, the prosecution is successful in proving of the guilt of the accused beyond reasonable doubt under Sections 279 and 304A of IPC and under Sections 185 and 134(a) (b) read with Section 187 of MV Act.

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Admittedly, in the present case, the accident occurred on 24.01.2009 and the accused was produced before the Police Station by his advocate and he was apprehended after following the procedure. He was in judicial custody for sometime and the impugned judgment came to be passed on 31.01.2015 and the bail was granted by this Court on 10.02.2015. He was on bail for more than 7 years. As on the date of accident, he was aged about 29 years. Now he is aged 36 years and the learned senior counsel for the appellant contends that the accused is the sole bread earner in the family and if he is sent to jail after more than 13 years from the date of accident, he will suffer irreparable injury.

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The learned Sessions Judge convicted the accused and sentenced him to undergo simple imprisonment for six months and to pay a fine of Rs.1,000/- and in default of payment of fine to undergo simple imprisonment for a period of one month for the offence punishable under Section 279 of IPC, he was sentenced to undergo simple imprisonment for a period of three years and to pay a fine of Rs.3,000/- and in default of payment of fine to undergo simple imprisonment for three months for the offence punishable under Section 304 of

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IPC, he was sentenced to undergo simple imprisonment for a period of three months and to pay amount of a fine of Rs.500/- and in default to undergo simple imprisonment for a period of one month for the offence punishable under Section 134(a)(b) read with Section 187 of MV Act and he was sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.2,000/- in default of payment of fine to undergo simple imprisonment for a period of three months for the offence punishable under Section 185 of MV Act. As already stated above, the complaint and the evidence on record clearly depicts that the provisions of Section 304A of IPC applies to the case on hand and not Section 304 of IPC.

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Sri. M.T.Nanaiah, learned senior counsel for the accused after arguing the matter at length on 05.01.2022 and for sometime on 10.01.2022, voluntarily submits that the accused will deposit Rs.2,00,000/- each (Rupees Two Lakhs only) to the legal representatives of the deceased persons and Rs.1,50,000/- (Rupees One Lakh Fifty Thousand only) to the legal representative of the injured person, who later died on 13.03.2019. The said submission is placed on record.

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In the present case, the appellant-accused has been found guilty for the offences punishable under Sections 279 and 304A of IPC and under Sections 185 and 134(a)(b) read with Section 187 of MV Act, for his rash and negligent driving in a public street and for causing death of four persons at spot and one more death of the injured who died after 48 days, thereby, taking away their precious life. However, it is not the case of prosecution that the accused had intentionally caused the death of deceased persons. Thereby, considering the provisions of Section 304A of IPC, which clearly depicts that whoever causes the death of any person by doing any rash and negligent act amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

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Taking into consideration the peculiar facts and circumstances of the present case, since the legal representatives of the deceased have not filed any appeal, except the State Government for enhancement of sentence under Section 304 of IPC and as the learned senior counsel for the appellant submitted that the accused would deposit a

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sum of Rs.2,00,000/- each (Rupees Two Lakhs only) to the legal representatives of deceased persons and Rs.1,50,000/(Rupees One Lakh Fifty Thousand only) to the legal representatives of the injured person, who later died on 13.03.2019 as compensation and taking into consideration that the appellant was throughout on bail except initially in judicial custody during the year 2009, we are of the view that it would not be fair to send the appellant to jail after lapse of more than 13 years from the date of occurrence of accident. The ends of justice will be met, if the appellant is sentenced to undergo simple imprisonment for the period already undergone and to pay a fine of Rs.1,000/- (Rupees One Thousand Only) and in default to undergo simple imprisonment for the period of three months for the offence punishable under Section 279 of IPC, to pay a fine of Rs.1,000/- (Rupees One Thousand Only) and in default to undergo simple imprisonment for a period of one month for

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the offence punishable under Section 134(a)(b) read with Section 187 of MV Act and to pay a fine of Rs.2,000/- (Rupees Two Thousand Only)and in default to undergo simple imprisonment for a period of six months for the offence

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punishable under Section 185 of MV Act and also to pay compensation amount to the legal representatives of the deceased persons as stated above.

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For the reasons stated above, the first point raised in the present appeals is answered in the Affirmative holding that the appellant has made out a case to interfere with the impugned judgment of conviction to modify the conviction under Section 304 of IPC into Section 304A IPC and the second point is answered in Negative holding that the State has not made out any case for enhancement of the sentence.

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In view of the above, we pass the following:

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ORDER

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(i) Criminal Appeal No.162 of 2015 filed by the

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accused is allowed in part.

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(ii) Criminal Appeal No.681 of 2015 filed by the State

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is dismissed.

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(iii) The impugned judgment of conviction dated 31.01.2015 passed in SC No.963 of 2009 on the file of the Fast Track Court-XIII, Bengaluru City for the offence

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punishable under Section 279 of IPC and under Sections 185 and 134(a)(b) read with Section 187 of MV Act, is hereby confirmed. However, the order of sentence is modified as under:

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The accused is sentenced to undergo simple imprisonment for the period which he has already undergone and to pay a fine of Rs.1,000/- (Rupees One Thousand Only) and in default, to undergo simple imprisonment for the period of three months for the offence punishable under Section 279 of IPC; to pay a fine of Rs.500/- (Rupees Five Hundred Only) and in default, to undergo simple imprisonment for a period of one month for the offence punishable under Section 134(a)(b) read with Section 187 of MV Act; and to pay a fine of Rs.2,000/- (Rupees Two Thousand Only) and in default to undergo simple imprisonment for a period of six months for the offence punishable under Section 185 of MV Act.

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(iv) The impugned judgment of conviction and order of

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sentence passed by the Trial Court for the offence punishable under Section 304 of IPC, is modified. The appellant-accused is convicted for the offence punishable under Section 304A of IPC and sentenced to undergo simple imprisonment for the

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period for which he has already undergone and to pay a fine of Rs.9,50,000/- (Rupees Nine Lakh Fifty Thousand Only), and in default of payment of fine amount, he shall undergo simple imprisonment for a period of one year.

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(v) The accused is directed to deposit the fine amount before the Trial Court within two weeks from the date of receipt of copy of this order.

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(vi) From out of the fine amount, an amount of Rs.2,00,000/- each (Rupees Two Lakhs Only) shall be paid to the legal representatives of the deceased Dr.Pananthur, Siddaiah, Radhakrishna, and Kempegowda and a sum of Rs.1,50,000/- shall be paid to the legal representative of the deceased K Kodandarama Reddy as compensation. The remaining fine amount of Rs.3,500/- (Rupees Three Thousand Five Hundred Only) shall be vest in the State Government for defraying charges.

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(vii) The Trial Court is directed to communicate the deposit of the compensation amount to the legal representatives of the deceased i.e., PWs.9, 10, 16, 19 and

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33 to enable them to withdraw the same as contemplated under Section 357(3) of Cr.P.C.

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(viii) Bail bond of the accused and that of his sureties stand cancelled.

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(ix) In view of the peculiar facts and circumstances of the present case, this judgment of sentence shall not be treated as a precedent in future for the offence under Section 304A IPC.

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(x) Registry is directed to send back the Trial Court records with a copy of the judgment.

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Sd/JUDGE

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Sd/JUDGE

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*bgn/- & SMJ

Karthik K Somaiah v. the State of Karnataka by

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Karthik K Somaiah v. the State of Karnataka by

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