Partly allowed

Sri Krishnamurthy v. State of Karnataka

Karnataka HC6 Apr 2023CRL.RP/850/2013

Case brief

AI extract

What is this about?

In a criminal revision, the High Court allowed the petition partly, confirming the conviction for rash and negligent driving causing death but reducing the sentence from one year rigorous imprisonment to six months simple imprisonment with a revised fine.

What did the court decide?

Revision petition allowed; conviction confirmed; sentence modified to six months simple imprisonment and fine of Rs.50,000.

Sri Krishnamurthy Vs State of Karnataka — Motor Accident Claims | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF APRIL, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE R.NATARAJ

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CRIMINAL REVISION PETITION NO.850/2013

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BETWEEN:

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SRI. KRISHNAMURTHY, S/O SHIVANNA, AGED 31 YEARS, KATLA HOUSE, KRISHNAPURA CROSS, IDDYA VILLAGE, SURATHKAL, MANGALORE-575014.

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…PETITIONER

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(BY SMT. P.V.KALPANA, AMICUS CURIAE)

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AND:

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STATE OF KARNATAKA, REPRESENTED BY MANGALORE TRAFFIC POLICE STATION, D.K., MANGALORE. REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE-560001.

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…RESPONDENT

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(BY SRI. KRISHNA KUMAR K.K., HIGH COURT GOVERNMENT PLEADER)

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THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO SET ASIDE THE JUDGMENT DATED 09.01.2013 IN CRIMINAL APPEAL NO.292/2006 PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE, DAKSHINA KANNADA,

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MANGALORE AND ORDER DATED 31.08.2006 IN C.C.NO.1136/2005 PASSED BY THE JMFC-III COURT, MANGALORE.

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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER ON 25.01.2023 AND COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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This petition is filed challenging the Judgment dated 31.08.2006 passed by the Judicial Magistrate First class (III Court), Mangalore (henceforth referred to as the ‘Trial Court’ for brevity) in C.C.No.1136/2005, by which, the petitioner was convicted for the offences punishable under Sections 279, 304A of the Indian Penal Code, 1860 (for short, ‘the IPC’) and sentenced to undergo rigorous imprisonment for one year along with fine of Rs.5,000/-. The petitioner has also challenged the Judgment passed by the II Additional District and Session Judge, Dakshina Kannada, Mangalore, (for short, ‘the Appellate Court’) dated 09.01.2013, in Criminal Appeal No.292/2006, by which, the Judgment of conviction and sentence passed by the Trial Court was confirmed.

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The case of the prosecution was that CW1, furnished information at Wenlock Hospital on 13.01.2005, he and the deceased Thimmanna were walking on Kadri Park road on the left side and at about 1.15 p.m., a private bus bearing registration No.KA-19A-8907 (henceforth referred to as ‘the offending vehicle’) being driven in a rash and negligent manner dashed against the deceased Thimmanna. As a result, he was thrown away and he suffered serious injuries on the head and the right shoulder and other parts of the right side of his body and he lost consciousness. Immediately, the Police emergency vehicle reached the spot and shifted the injured to Wenlock hospital where he was declared brought dead. CW.1 is the brother-in-law of the deceased and his statement was recorded at the hospital, which was placed before CW.15, who registered crime No.8/2005. CW.17 registered an FIR against the accused for the offences punishable under Sections 279 and 304A of IPC and placed the hospital memo and the file before CW.18 - Investigating officer. The investigating officer conducted an

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inquest and also recorded a spot mahazar. He also recorded the further statement of CW.1, the statements of CW.2, CW.3 and CW.4, and prepared a sketch of the spot of the accident. He seized the bus on the same day, which was produced by CW.12, the owner of the bus. The vehicle was subject to inspection by the motor vehicle inspector whose report was received. The post mortem report was also received. The accused appeared before the Police on 15.01.2005 and he was arrested and released. Later, a chargesheet was filed against the accused for the offences punishable under Sections 279, 304A of IPC. The Trial Court took cognizance and issued process to the accused who appeared before the Trial Court. The substance of accusation was read over to the accused who denied the same and claimed to be tried.

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The prosecution examined a witness to the spot mahazar as PW1, who turned hostile. The informant was examined as PW.2, who supported the prosecution. The driver of the police emergency vehicle was examined

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as PW.3, who identified the accused. A juice vendor and an eye witness to the accident, was examined as PW.4 and he supported the prosecution. Another Bhelpuri vendor who owned a shop near park gate was examined as PW.5, who turned hostile and did not identify his statement and his further statement, but identified his signature on the spot panchanama. PW.6 was the conductor of the bus, who turned hostile and denied the statement recorded under Section 161 of the Code of Criminal Procedure (for short, ‘the Cr.P.C.’) before the police. PW.7 was the IMV Inspector who deposed that the accident was not due to any mechanical failure of the offending vehicle. PW.8 was the wife of the deceased Thimmanna and a hearsay witness. PW.9 was the witness to the spot mahazar who turned hostile. PW.10 was the owner of the offending vehicle and he also turned hostile, but admitted that the accused used to drive the bus occasionally. PW.11 was the witness to the seizure mahazar of the bus and he turned hostile. PW.12 was the head constable who registered FIR in Crime No.8/2005 while PW.13 was the investigating

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officer who conducted the inquest, drew a spot mahazar, recorded the further statement of CW.1 and the statements of CWs.2, 3 and 4 and prepared a sketch of the spot. He was the one who seized the offending vehicle, secured the report of the IMV inspector and arrested the accused and after obtaining the post mortem report, submitted a charge sheet.

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The Trial Court recorded the statement of the accused under Section 313 of the Cr.P.C. He however, did not deny that he was not driving the vehicle on the date of the accident. He did not lead any evidence in defence.

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Based on the oral and documentary evidence,

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the Trial Court held that the deceased was walking on the left side of the road, while his brother-in-law was walking on the other side of the road. It held that the road was 27 feet wide and the accused could have averted the accident and since the deceased was walking, he could not have seen the offending vehicle being driven. It held that the accused must have therefore, exercised due care and

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caution while driving the bus on the road. The Trial Court further held that the evidence of PW.4 clearly established that the accident was due to the rash and negligent driving of the bus by the accused. It held that the identity of the accused was established by PW.3, PW.10 as well as PW.2 and PW.4 and hence convicted the accused for the offences punishable under Sections 279 and 304A of the IPC and sentenced him to undergo rigorous imprisonment for one year and to pay fine Rs.5,000/-.

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6. Being aggrieved by the Judgment of conviction

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and sentence, the accused filed Crl. Appeal No.292/2006. The Appellate Court secured the records of the Trial Court, heard the learned counsel for the parties, framed the points for consideration and after re-appreciating the evidence on record, held that the prosecution had indeed proved the guilt of the accused beyond doubt and consequently, dismissed the appeal and upheld the Judgment of conviction and sentence passed by the Trial Court.

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Being aggrieved by the Judgments of both the

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Courts, the present revision petition is filed.

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8. The learned counsel for the accused submitted

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that PW.2 and the deceased were walking on either side of the road. Therefore, PW.2 could not have seen the accident. He submitted that the Trial Court could not have relied upon the evidence of PW.2 to return a finding of guilt of the accused. He further submitted that the only other eyewitness was PW.4. He invited the attention of the Court to the deposition of PW.4, where the Court found that he was carrying a chit which contained the particulars of the offending vehicle and the date of the accident and time of the accident and the name of the accused. The learned counsel submitted that PW.4 was therefore a planted witness by the Investigating officer. He submitted that except the evidence of PW.4, there was no evidence to establish the manner of the accident, and therefore, the accused cannot be held guilty. He however, did not dispute the fact that the accused, who was liable to explain how

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the accident occurred, did not do so by adducing his evidence in defence.

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Learned High Court Government Pleader on the other hand, submitted that PW.2 and the deceased were walking alongside the road on either side and accused who drove the offending vehicle dashed against the deceased who was walking on the left side of the road. He submits that if the accused was not responsible for the accident, it was incumbent upon him to mention the same in his statement under Section 313 of the Cr.P.C. or by leading evidence in his defence. He submitted that since the accused did not explain the same, then the available evidence had to be taken into consideration to determine whether the accused was guilty or not. He submits that PW.2 was the brother-in-aw of the deceased who deposed that the driver of the bus drove it in a rash and negligent manner and dashed against the deceased. PW.4, a juice vendor who had a shop nearby, witnessed the accident and he deposed before the Court that the accident was due to

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the rash and negligent driving by the accused. The owner of the vehicle was examined as PW.10 and he deposed that the accused used to drive the vehicle sometimes. The fact that the accused appeared before the Police and he was arrested on 15.01.2005 is not in dispute. He submitted that PW.3, the driver of the ambulance, identified the accused. Likewise, PW.4 also identified the accused and therefore, he submits that the prosecution had proved the commission of offence by the accused beyond doubt and therefore, the judgments of the Trial Court and the Appellate Court are just and proper, which do not call for any interference by this Court in revision.

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I have considered the submissions made by

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the learned amicus curiae for the accused as well as the learned High Court Government Pleader. I have also perused the records of the Trial Court, its Judgment as well as the Judgment of the Appellate Court.

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The accident is stated to have occurred at 1.15 p.m. on 13.01.2005 on the road leading from Santhoor to

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Circuit House in Mangalore City, which was a one way, meaning vehicles were allowed to move from Santhoor circle towards circuit house. The deceased was shifted to Wenlock Hospital in the emergency vehicle driven by PW.3. The identity of the accused is established, as PW.3 identified the accused. PW.4 was a juice vendor who had his shop near Kadri park by the side of the road and he deposed of having seen the accident. PW.2 was the brother-in-law of the deceased who deposed that he and the deceased were walking on either side of the road and the bus was driven from Santhoor circle towards circuit house in a rash and negligent manner and dashed against the deceased. The sketch at Ex.P17 shows that the road was a 27 feet wide plain level road and that a channel ran alongside the road on the left side from Santhoor circle to circuit house, compelling the road users to walk on the road. The deceased was walking by the side of the road. The accused unmindful of the pedestrians using the road, drove the offending vehicle in a rash and negligent manner which dashed against the deceased. There is no negligence

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attributed to the deceased in the course of crossexamination of PW.2 or PW.4. The accused did not explain the circumstances under which the accident occurred. The conductor (PW.6) of the bus who recorded his statement under Section 161 of the Cr.P.C., stated that the driver of the bus drove it in a rash and negligent manner but he turned hostile. The motor vehicle inspector (PW.7) deposed that the accident was not due to any mechanical failure of the offending vehicle. However, the IMV report indicated that the front left side indicator light of the offending vehicle was damaged, and the shape in the front on the left side was dented inwards. Therefore, the involvement of the accused and the offending vehicle and the death of the deceased are all proved beyond doubt. If the deceased was walking on the left side of the road at 1.15 p.m. on the date of the accident, he could not have gone unnoticed by the accused. If the deceased was negligent and / or contributed to the accident, the accused must have said so in his statement under Section 313 of the Cr.P.C. Since he failed to do so, it is the circumstances

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and the evidence that have to be assessed to determine the guilt of the accused. The post mortem report indicated that the deceased had suffered a fissured fracture of his skull involving the right anterior cranial fossa, left middle cranial fossa and multiple fissured fractures with displacement of bone pieces in the posterior cranial fossa and diffused subdural and subarachnoid haemorrhages were found in membranes. These injuries cannot be suffered by merely slipping on a road but must have inflicted by the offending vehicle, and the damages on the front left side of the offending vehicle establishes that the accused was responsible for it. Therefore, there is ample evidence to show that the accused was responsible for the accident and though he had the opportunity to avoid the accident, failed to do so.

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In that view of the matter, the Trial Court and the Appellate Court were justified in convicting the accused for the offences punishable under Sections 279 and 304A of the IPC. However, the Trial Court has sentenced the

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accused to undergo rigorous imprisonment for one year along with fine of Rs.5,000/-. However, having regard to the age of the accused, this Court considers it appropriate to modify the sentence to one of simple imprisonment for six months and with fine of Rs.50,000/- payable to the legal heirs of the deceased Thimmanna. In the event of default of payment of fine within three months from today, the accused shall undergo simple imprisonment for three months.

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In view of the above, the revision petition is allowed in part. The Judgment of conviction dated 31.08.2006 passed by the Judicial Magistrate First class (III Court), Mangaluru in C.C.No.1136/2005 by which the petitioner was convicted for the offences punishable under Sections 279 and 304A of the IPC and the affirming Judgment dated 09.01.2013 passed by the II Additional District and Session Judge, Dakshina Kannada, Mangalore, in Criminal Appeal No.292/2006 are confirmed. However, the impugned Order of sentence passed by the Trial Court

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which was upheld by the Appellate Court is modified and the accused is sentenced to undergo simple imprisonment for six months and to pay fine of Rs.50,000/- (Rupees Fifty Thousand only) within three months from today, failing which, he shall undergo simple imprisonment for three months, for the aforesaid offences. On payment of fine, the same shall be paid to the legal heirs of the deceased Thimmanna.

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The services rendered by Smt. P.V. Kalpana, learned amicus curiae, is appreciated and her fee is fixed at Rs.5,000/- (Rupees Five Thousand only) which is payable by the Registry.

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Sd/JUDGE

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sma

Sri Krishnamurthy v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri Krishnamurthy v. State of Karnataka

Case brief

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