Partly allowed

Vijayakumar v. State of Karnataka

Karnataka HC14 Mar 2024CRL.RP/72/2020

Case brief

AI extract

What is this about?

In a criminal revision petition challenging conviction for rash/h negligent driving causing death, the High Court reaffirmed the conviction for IPC 304(A) but modified the sentence to six months. It acquitted the petitioner of charges under the Motor Vehicles Act and IPC 279 deeming them absorbed by the serious offence, and held that probabilty of offenders relief did not apply.

What did the court decide?

Petitioner acquitted of offences under Motor Vehicles Act and IPC 279; sentence for IPC 304(A) reduced to six months; any fine deposited for acquitted offences to be refunded.

Vijayakumar Vs State of Karnataka — Civil Procedure and Limitation | Karnataka HC (2024)

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- 1 - NC: 2024:KHC:10519 CRL.RP No. 72 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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CRIMINAL REVISION PETITION NO.72 OF 2020

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BETWEEN:

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VIJAYAKUMAR, AGED ABOUT 45 YEARS, S/O VASUDEVA, R/O MATADAHALLI VILLAGE, LAKAVALLI HOBLI, TARIKERE TALUK, CHICKMAGALUR DISTRICT-577 128

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…PETITIONER

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(BY SRI NISHIT KUMAR SHETTY, ADVOCATE)

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AND:

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STATE OF KARNATAKA

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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BY SHIKARIKURA TOWN POLICE STATION, SHIKARIKURA, REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS, BANGALORE-560 001.

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…RESPONDENT

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(BY SRI K. DIWAKAR MADDUR, HCGP)

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THIS CRL.RP IS FILED UNDER SECTION 397 R/W SECTION 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 03.06.2019 MADE IN C.C.NO.510/2018 BY THE COURT OF SENIOR CIVIL JUDGE AND JMFC, SHIKARIPURA AND THE JUDGMENT AND ORDER DATED 06.12.2019 MADE IN CRL.A.NO.126/2019 BY THE III ADDITIONAL SESSIONS JUDGE AT SHIVAMOGGA.

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

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O R D E R

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Heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.

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The factual matrix of the case of the prosecution before the Trial Court by invoking the offences punishable under Section 279 and 304(A) of IPC and Sections 134(A), (B) and 187 of IMV Act is that the petitioner herein is the driver of mini goods vehicle bearing registration No.KA-14/B-5346. On 03.01.2018 at about 9.10 a.m., the petitioner drove the same from Shivamogga towards Shikaripura and when he reached near Mahadeva Rice Mill, he drove the same in a rash and negligent manner endangering human life and over took the bike bearing registration No.KA-15/S-3328, which was driven by the deceased Harish and stopped the lorry all of a sudden without giving any signal, due to which the rider of the bike lost control over the bike and dashed to the lorry which was driven by the accused, result of which the rider of the motor cycle fell on the road and sustained grievous injuries and succumbed to the injuries on the way to the hospital. Hence, case has been registered, investigated the matter and filed the charge-sheet.

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The prosecution in order to prove the charges

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levelled against the accused, examined P.Ws.1 to 10 and got marked the documents at Exs.P.1 to 15. The revision petitioner has not led any defence evidence. The Trial Court having taken note of, particularly the eye-witnesses evidence i.e., P.Ws.2, 3 and 7 comes to the conclusion that the accident is on account of the negligence on the part of the petitioner. The Trial Court also comes to the conclusion that the accident has not been denied and even overtaking of the motor cycle has not been denied, only suggestion was made that he stopped the vehicle with signal. The defence that he gave signal and stopped the vehicle has not been substantiated by leading any evidence and nothing is elicited in the cross-examination of eye-witnesses P.Ws.2, 3 and 7 and hence convicted the petitioner for all the charges levelled against him.

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Being aggrieved by the said order, an appeal is filed in Crl.A.No.126/2019. The Appellate Court also re-assessed both oral and documentary evidence placed on record and taken note of particularly the evidence of P.Ws.2, 3 and 7. In paragraph Nos.15, 16 and 17 of the judgment discussed the evidence of material witnesses and also taken note of the contentions raised by the appellant in paragraph Nos.20 and 21

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and also observed in paragraph No.21 that place of accident is not disputed by the accused. The suggestion put by the learned counsel for the accused to P.W.2 and P.W.7 clearly establishes

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that the driver of the lorry overtook the bike and stopped the vehicle in the middle of the road. But the contention of the accused is that he stopped the lorry by giving signal. So, there is no evidence on record to show that the accused before stopping the lorry gave signal to the deceased that he is going to stop the lorry. Taking note of the cumulative effect of the entire prosecution evidence, confirmed the judgment of the Trial Court. However, the Appellate Court reduced the sentence of two years to one year for the offence punishable under Section 304(A) of IPC and confirmed the conviction.

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Being aggrieved by the conviction and confirmation,

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the present revision petition is filed before this Court.

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The learned counsel for the petitioner in his arguments has vehemently contended that both the Courts failed to take note of the fact that mahazar witnesses have turned hostile and their evidence is detrimental to the case of the prosecution. P.W.2, who is an eye-witness deposed in favour of the prosecution is a family friend of the deceased. The

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Court below ought to have come to the conclusion that there is no evidence that the vehicle in question was driven in a manner so rash or negligent so as to endanger human life. The learned

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counsel submits that evidence of P.W.7 also cannot be accepted. He admits that the distance maintained by the deceased is only to an extent of 4 to 5 feet and it is the duty of the driver to maintain sufficient space between one vehicle and another vehicle. This shows that the deceased who was behind

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the offending vehicle has not maintained the distance and he himself went and dashed against the lorry which was ahead of him and lorry had stopped and he did not notice the vehicle which was parked on the left side of the road and the accident is on account of the negligence on the part of the deceased.

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The learned counsel for the petitioner relied upon the judgment of the Apex Court in the case of STATE, THROUGH CENTRAL BUREAU OF INVESTIGATION v. SANJIV BHALLA AND ANOTEHR reported in (2015) 13 SCC 444 and brought to the notice of this Court paragraph No.22, wherein the Apex Court discussed with regard to invoking of Section 4 of the Probation of Offenders Act and held that Sections 360 and 361 of Cr.P.C. and the Probation of Offenders Act should not be disregarded but should be followed and an

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appropriate decision, depending on the facts of the case, be taken in each case. The learned counsel referring this judgment would contend that the petitioner may be enlarged on probation.

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Per contra, the learned High Court Government Pleader appearing for the respondent would contend that the evidence of P.Ws.2, 3 and 7, who are eye-witnesses, is clear that the driver of the lorry overtook the deceased’s motor cycle and suddenly stopped the vehicle without any signal. The learned counsel would contend that in the cross-examination of the eye-witnesses to prove that the driver of the vehicle had stopped the vehicle giving signal, no material is placed on record. Both the Courts below have taken note of the said fact. The learned counsel also submits that the accident is not in dispute, the manner in which the vehicle was driven is not disputed, overtaking of the motor cycle is not disputed and stopping of the vehicle ahead of the motor cycle is not disputed. The only defence taken is that he had given signal and stopped the vehicle and the same is not substantiated and even not examined himself as defence witness to substantiate his contention that he had stopped the vehicle giving signal. The learned counsel would contend that both the Courts have taken note of both oral and documentary evidence placed on record

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and hence it does not require interference. The learned counsel submits that the question of invoking Section 4 of the Probation of Offenders Act and Sections 360 and 361 of Cr.P.C. does not arise. Having taken note of the material on record and direct witnesses have spoken the manner in which he drove the vehicle and hence the petitioner will not enure the benefit of the judgment of the Supreme Court.

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Having heard the learned counsel for the petitioner

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and the learned High Court Government Pleader for the respondent, it is the case of the prosecution that on 03.01.2018 at 9.10 a.m., the petitioner drove the mini goods vehicle in rash and negligent manner and overtook the motor cycle in which the deceased was proceeding and suddenly stopped the vehicle without signal. No doubt, the petitioner has denied the charges and cross-examined the witnesses and during the course of cross-examination, eye-witnesses P.Ws.2, 3 and 7 did not dispute the accident and also did not dispute the overtaking of the two wheeler in which the deceased was proceeding and also stopping of the vehicle ahead of the motor cycle is not disputed. Only defence was taken that he had stopped the vehicle with signal. When such questions were put to P.Ws.2, 3 and 7, when the specific defence was taken that by giving signal

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the vehicle was stopped, the same has to be substantiated by even examining the petitioner, who is facing the charges and he has not been examined and nothing is elicited in the crossexamination of P.Ws.2, 3 and 7 with regard to stopping of vehicle with signal. These materials are taken note of by the Trial Court and First Appellate Court.

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Having considered both oral and documentary evidence, both the Courts also discussed the evidence on record. The Appellant Court in paragraph No.21 taken note of that there is no evidence on record to show that the accused before stopping his lorry, gave signal that he is going to stop the lorry. Taking note of cumulative evidence on record, confirmed the judgment of the Trial Court. However, allowed the appeal in part and reduced the sentence. It is important to note that it is an accident and the Apex Court in the judgment referred supra, discussed in paragraph No.22 that in a case of Section 304(A) of IPC, where mens rea remains absent, the Court has to take note of the same and while invoking Section 304(A) of IPC also to invoke Section 4 of Probation of Offenders Act and also Sections 360 and 361 of Cr.P.C. However, the Apex Court held that depending on the facts of the case, the same be taken in each case. In the case on hand, it has to be noted that the Court has

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to take note of the manner in which the petitioner drove the vehicle. Admittedly, even in the suggestion to the prosecution witnesses, suggestion was made that the petitioner drove the vehicle and overtook the bike in which the deceased was proceeding and after overtaking, he took the vehicle on the left side and suddenly stopped the vehicle. Though it is contended that signal was given while stopping the vehicle, in order to substantiate the same, nothing is elicited from the mouth of P.Ws.2, 3 and 7. No rebuttal evidence is also adduced by the petitioner and when he took the specific defence in the crossexamination, the petitioner himself has to explain how the accident occurred when he has not disputed the accident and not disputed overtaking of the two wheeler in which the deceased was proceeding and also even did not dispute the fact that the vehicle was stopped ahead of the vehicle in which the deceased was traveling. Mere taking of defence is not enough and the very defence has to be substantiated. When such being the case, the contention of the learned counsel for the petitioner that the Court has to invoke Section 360 of Cr.P.C. cannot be accepted. It depends upon each facts and circumstances of the case. However, taking note of the fact that there was no mens rea in a case of offence under Section 304(A) of IPC, the

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minimum sentence of six months would be just and reasonable and hence the petition requires to be allowed in part. Taking note of the offence of Section 304(A) of IPC, when a serious offence has been invoked, both the Courts lost sight of invoking of Section 279 of IPC. Sections 134(A), (B) read with Section 187 of MV Act and the ingredients of Section 279 of IPC and other MV offences merges with the serious offence of Section 304(A) of IPC and the same is also liable to be set aside.

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The petition is allowed in part.

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(ii) The judgment of conviction and confirmation for the offence under Section 304(A) of IPC is confirmed. The sentence is modified as six months instead of one year. For the rest of the offences, the accused/petitioner is acquitted. If any fine is deposited by the petitioner for the other offences, the Trial Court is directed to refund the same to the petitioner, on proper identification.

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Sd/JUDGE

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List No.: 1 Sl No.: 22

Vijayakumar v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Vijayakumar v. State of Karnataka

Case brief

What is this about?

What did the court decide?

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