Dismissed

Mr Abdul Subhan S/O Abdul Majeed v. the State of Karnataka

Karnataka HC29 Jun 2022CRL.RP/475/2012

Case brief

AI extract

What is this about?

In a criminal revision under Section 397/401 Cr.P.C., the High Court of Karnataka revisited a conviction for rash and negligent driving causing death. The Court found the prosecution evidence regarding the accident and the accused's identity credible, dismissing the revision.

What did the court decide?

Petitioner directed to surrender before the trial Court within 45 days and serve the sentence.

Mr Abdul Subhan S/O Abdul Majeed Vs the State of… — Criminal Trial and Appeal | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF JUNE 2022

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BEFORE

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THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

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CRIMINAL REVISION PETITION No.475 OF 2012

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BETWEEN:

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Mr.Abdul Subhan S/o Abdul Majeed, Age about 45 years, Residing at 9^th Ward, Bageppalli Town. .. Petitioner

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( By Sri Shaikh Saoud, Advocate )

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AND:

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The State of Karnataka by Bageppalli Police, Represented by State Public Prosecutor, Bangalore.

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.. Respondent

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( By Sri K.Nageshwarappa, HCGP)

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This Criminal Revision Petition is filed under Section 397(1) read with Section 401 of Cr.P.C. praying to call for the records of and set aside the judgment and order of conviction of the petitioner passed by the Civil Judge and JMFC, Bagepalli in c.C.No.36/2010 dated 30.05.2011, for the offence under Section 279 and 304A of IPC, Annexure-B and also of the Sessions Court, Chikkaballapur in Cri.Appeal No.28/2011 dated 30.3.2012 confirming the said conviction, Annexure-A and such other relief/s as this Hon'ble Court deems fit to grant under the circumstances of the above case in the interest of justice and equity.

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Crl.R.P.No.475/2012

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This Criminal Revision Petition having been heard through Physical Hearing/Video Conferencing Hearing and reserved on 21.06.2022, coming on for pronouncement of orders this day, the Court made the following:

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ORDER

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The present petitioner was tried as accused by the Court of learned Civil Judge and J.M.F.C., Bagepalli, (hereinafter for brevity referred to as the trial Court') in C.C.No .36/2010, for the offences punishable under Sections 279, 304-A of Indian Penal Code, 1860 (hereinafter for brevity referred to as theIPC') and was convicted by its judgment of conviction and order on sentence dated 30.05.2011 and was sentenced accordingly.

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Aggrieved by the same, the accused preferred an appeal in Criminal Appeal No.28/2011, before the learned District and Sessions Judge, Chikkaballapur, (hereinafter for brevity referred to as the `Sessions Judge’s Court'), which after hearing both side, dismissed the appeal filed by the accused by its judgment dated 30.03.2012.

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Crl.R.P.No.475/2012 3

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Being aggrieved by the same, the accused has preferred the present revision petition.

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The summary of the case of the prosecution in the trial Court was that on 19.11.2009, at about 3.15 p.m. near Dasaiahgaripalya Cross, within the limits of complainant Police Station, the accused being the driver of motor vehicle Tempo bearing registration No.KA-40-786, drove the same in a rash and negligent manner and dashed against the TVS-XL vehicle bearing registration No.KA-40-E-5048 being ridden by one Sri Adinarayanappa, thus, causing a road traffic accident. As a result of which, said Adinarayanappa sustained injured and succumbed to it on the spot. Thus, the accused has committed the offences punishable under Sections 279 and 304-A of IPC.

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The accused appeared in the trial Court and contested the matter through his counsel. The accused pleaded not guilty. As such, in order to prove the guilt against the accused, the prosecution got examined in all nine witnesses from PW-1 to PW-9 and got marked

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Crl.R.P.No.475/2012

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documents from Exs.P-1 to P-9. However, neither any witness was examined nor any documents were got marked on behalf of the accused.

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The learned counsel for the petitioner and learned High Court Government Pleader for the respondent-State are physically present in the Court.

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Heard the arguments from both side. Perused the materials placed before this Court, including the trial Court and Sessions Judge’s Court’s records.

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For the sake of convenience, the parties would be henceforth referred to as per their rankings before the trial Court.

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After hearing the learned counsel from both side,

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the only point that arise for my consideration in this revision petition is:

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Whether the concurrent finding recorded by the trial Court, as well as the Sessions Judge’s Court that the accused committed the alleged offences

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punishable under Sections 279, 304-A of the Indian Penal Code, 1860, warrants any interference at the hands of this Court?

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The learned counsel for the accused in his

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argument submitted that identity of the accused as the driver of the alleged offending vehicle has not been established by the prosecution. The accused is an innocent person and that he has been falsely fixed in the case. He also submitted that nobody from the Stone Factory which was located nearby to the place of the accident was examined and no reasons are forthcoming for the same. He further stated that the IMV report is also not believable. With this, he submitted that impugned judgments of conviction deserves to be set aside.

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Learned High Court Government Pleader for the respondent in his argument submitted that identity of the accused has been clearly stated by PW-3, an eye witness to the incident. He also submitted that the owner of the offending vehicle admittedly had taken the accused to the police station and shown him as the driver of the offending

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vehicle. Further, no documents were produced and no witnesses were examined from the accused side to show that it was not the accused, but, it was one Sri Babu, who was said to be the driver of the alleged offending vehicle at the time of the accident. He also stated that the evidence of PW-3 - the eye witness further proves the rash and negligent driving of the offending vehicle by the accused. With these, he submitted that the impugned judgments does not warrant any interference at the hand of this Court.

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The accused (petitioner) does not deny or dispute the occurrence of road traffic accident on the date 19.11.2009 at 3.15 p.m., near Dasaiahgaripalli within the limits of complainant-Police Station, involving two motor vehicles, one bearing Tempo with registration No.KA-40786 and the other vehicle being a TVS-XL motorcycle bearing registration No.KA-40-E-5048. The accused also does not deny or dispute that in the said road traffic accident, Sri Adinarayanappa, the rider of the said

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Crl.R.P.No.475/2012 7

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motorcycle sustained injuries and succumbed to it on the spot. However, the only contention of the accused is that the prosecution has failed to prove that it was him (the accused) who was the driver of the alleged offending Tempo vehicle.

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Among nine witnesses examined by the prosecution, PW-2 Ananda Reddy and PW-3 Chandrashekara Reddy were projected as eye witnesses to the alleged incident. PW-2 though has stated about occurrence of the accident, but, has stated that he does not know the details of manner of occurrence of accident and he does not even know as to who was the driver of the Tempo vehicle. Even after treating him as hostile, the prosecution could not elicit any favourable statements from him.

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PW-3 Chandrashekara Reddy, who is also the first informant in the case, has stated that, on the date of accident, which was on 19.11.2009, while he was going from Bagepalli to his place on a two-wheeler along with

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CW-2, he saw the occurrence of the accident. He has stated that TVS motorcycle was going from Bagepalli towards Yellampalli, at that time, a Tempo-407 vehicle coming from the opposite direction in high speed, dashed

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to the TVS vehicle. Due to the said Sri Adinarayanappa, the rider of the TVS motorcycle fell down and sustained injuries. He succumbed to the injuries while being shifted to hospital. The witness has given the registration number of both the vehicles. He has also stated that, in that connection, he has lodged a complaint with the police as per Ex.P-3. Specifically identifying the accused in the Court, the witness has stated that it was the very same accused who was the driver of the offending vehicle at the time of accident. The witness also stated that the police drew scene of offence panchanama as per Ex.P-1 and seized the vehicles involved in the accident.

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PW-3 was subjected to a detailed cross-examination

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wherein he adhered to his original version. Several attempts were made to weaken his evidence given in his

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examination-in-chief by suggesting various statements to him which were against his statement made in his examination-in-chief, however, the witness did not admit any of those suggestions as true. He denied a suggestion that at the time of accident, the Tempo was moving on the left side of the road and that in order to avoid the accident, the Tempo driver had taken his vehicle on the further left side of the road. By denying the said suggestion and stating that the Tempo was moving in high speed and the said Tempo itself dashed to the motorcycle which was going on its extreme left side, the witness has shown that there was an act of rash and negligent driving on the part of the driver of the offending vehicle.

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An attempt was made in his cross-examination suggesting to the witness that the TVS-XL vehicle has got its tyre burst, the witness by denying the said suggestion has diluted the defence taken by the accused in the case.

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Thus, PW-3 as an eye witness to the incident has not only spoken about the accident, the alleged rash and negligent driving on the part of the accused, the death of Adinarayanappa in the said accident, but, also about the identify of the accused stating that he was the driver of the offending vehicle, the Tempo.

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PW-1 Venkata Reddy was examined as a witness to the scene of offence panchanama, who has stated that, in connection with the accident involved in the matter, wherein the son of Sri Ramappa died on the spot, he has put his signature on the mahazar. He has also stated that while he was signing the mahazar, the Tempo was in the spot.

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The said scene of offence panchanama at Ex.P-1 is corroborated with the evidence of PW-3 as to the place of accident and the involvement of the alleged vehicles in the accident. Thus, the place of the accident and the

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involvement of the vehicles in the accident also stands established.

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PW-4 Reddeppa though speaks about he visiting the place of accident immediately after the accident, however, except the alleged fact of accident, nothing more has been revealed by this witness.

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PW-5 Mohammed Shabbir is the owner of the alleged offending vehicle. He has stated in his evidence that the alleged offending vehicle belongs to him and that after knowing about its involvement in a road traffic accident and death of a person in the said accident, he got released the said vehicle to his interim custody, however, he has stated that, on the said date of accident, a person by name Babu was the driver of the vehicle.

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After getting him treated as hostile, the prosecution though subjected him to cross-examination, however, he denied the suggestion that on the date of the accident, it was not said Sri Babu, but, it was the accused who was the driver of the vehicle. In his cross-examination from the

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accused side, the witness has stated that since he was told that there was necessity of a driving licence to release the vehicle, he had taken the accused to the police station.

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The said statement of PW-5 that accused was not the driver of the offending vehicle at the time of accident does not inspire confidence in the mind of the Court to believe, for the reason that, for the first time, the witness, that too, during the course of the trial, comes up with the said statement that accused was not the driver of the offending vehicle at the time of the accident. Though he says that one Sri Babu was the driver of the vehicle, however, nowhere the accused has taken the said defence in his cross-examination of any of the prosecution witnesses. The said Babu also was not examined as witness from the accused side. More importantly, even in his statement recorded under Section 313 of Cr.P.C. also, the accused

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has not whispered that it was not himself, but, one Sri Babu was the driver of the offending vehicle. Furthermore, even PW-5 also has not stated as to why he

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Crl.R.P.No.475/2012 13

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took the accused before the police and projected him as the driver of the offending vehicle.

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Similarly, there is nothing on record to show as to why the accused accepted to present himself falsely as a driver of the offending vehicle and enable PW-5 to secure the possession of the vehicle. On the other hand, the evidence of PW-3 makes it very clear that, apart from being an eye witness to the alleged incident, he has also noticed the accused in the spot as the driver of the offending vehicle. Accordingly, he has identified him even in the Court also. Therefore, it is clearly established that the accident in question has occurred due to rash and negligent driving on the part of the offending vehicle i.e., Tempo bearing registration No.KA-40-786 and that the accused was the driver of the said vehicle at the time of the accident.

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The IMV report at Ex.P-9, coupled with the evidence of PW-7, the Investigating Officer also shows that the accident was not due to any mechanical defect with the

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Crl.R.P.No.475/2012 14

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vehicle. Further, the damages sustained by both the vehicles also go to show that there was impact of the Tempo vehicle upon the two-wheeler. The rough sketch of the spot at Ex.P-6 further corroborates the evidence of PW-3 that it was the Tempo which came from the opposite direction and dashed to the motorcycle which was going on its extreme left side and caused the accident. Thus, the rash and negligent driving of the vehicle on the part of the accused has stood proved beyond reasonable doubt.

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It is not in dispute that Sri Adinarayanappa was riding the motorcycle TVS-XL and he sustained injuries in the road traffic accident and succumbed to it before he was taken to the hospital. The evidence of PW-3, coupled with the evidence of PW-8, who is a pancha to the inquest panchanama at Ex.P-7, which is further corroborated by the post mortem report at Ex.P-8 establishes that death of deceased Adinarayanappa was due to the injuries sustained by him in the said road traffic accident. It

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is analysing these evidence, both oral and documentary, both the trial Court, as well the Sessions Judge’s Court have rightly held the accused guilty of the alleged offences.

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It is the sentencing policy that the sentence ordered must be proportionate to the gravity of the proven guilt of the accused. It must not be either exorbitant or for namesake.

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In the instant case, the present

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petitioner/accused was sentenced to undergo simple imprisonment for a period of one year for the offence punishable under Section 304-A of IPC. Since in the light of the facts and circumstances of the case, the sentence ordered by the trial Court and confirmed by the Sessions Judge’s Court being proportionate to the gravity of the proven guilt against the accused, I do not find any reason to interfere in it.

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Accordingly, I proceed to pass the following:

Crl.R.P.No.475/2012

ORDER

The Criminal Revision Petition is dismissed as devoid of merits .

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Petitioner/accused to surrender before the trial Court within 45 days from today and to serve the sentence.

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Registry to transmit a copy of this order to both the trial Court and also to the Sessions Judge’s Court along with their respective records forthwith to enable them to proceed further in accordance with law.

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Sd/JUDGE

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bk/

Mr Abdul Subhan S/O Abdul Majeed v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Mr Abdul Subhan S/O Abdul Majeed v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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