Santosh Metre Vs the State of Karnataka

THE STATE OF KARNATAKA, THROUGH POLICE, TRAFFIC POLICE STATION, BIDAR, DIST. BIDAR-585401, REPRESENTED BY ADDL. SPP, HIGH COURT OF KARNATAKA, KALABURAGI BENCH.

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…RESPONDENT

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(BY SRI JAMADAR SHAHABUDDIN, HCGP)

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THIS CRL.A. IS FILED UNDER SECTION 374 (2) OF CR.P.C. PRAYING TO ADMIT THE APPEAL AND SET ASIDE THE IMPUGNED JUDGMENT OF CONVICTION AND SENTENCE DATED 30.06.2020 PASSED BY THE PRINCIPAL DISTRICT AND

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SESSIONS JUDGE AT BIDAR IN S.C.NO.169/2016 ON ITS FILE, THEREBY CONVICTING THE APPELLANT FOR THE OFFENCES PUNISHABLE U/SEC.279 AND 304-A OF IPC. ACQUIT THE APPELLANT OF ALL CHARGES IN S.C.NO.169/2016 ON THE FILE OF PRINCIPAL DISTRICT AND SESSIONS JUDGE, AT BIDAR.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE V SRISHANANDA)

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Heard Sri Sanjay A. Patil, learned counsel for the appellant and Sri Jamadar Shahabuddin, learned High Court Government Pleader for the respondent/State.

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Appellant is the accused, who stood for the trial for the offences under Sections 279 and 304 of IPC. After due trial, he was convicted for the offences under Sections 279 and 304A of IPC and sentenced as under:

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“Accused is hereby sentenced to under go simple imprisonment for period of one year and shall

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pay a fine of Rs.5,000/-. In default of payment of fine he shall undergo simple imprisonment of one month. The period of detention during crime stage shall be given set off as provided U/Sec.428 of Cr.P.C.

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The bail bond of accused and that off surety stands cancelled.”

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Facts in brief which are utmost necessary for

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disposal of the present appeal are as under:

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3.1. An accident occurred on 11.08.2015 at about

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04-00 p.m., wherein accused being the driver of a Bolero Jeep bearing registration No.KA 38/7564 drove the same in a rash and negligent manner from Bidar Fire station road towards Gadgi village with a full knowledge that driving of the vehicle in such manner may result in accidental death of a person; when offending vehicle reached near water tank near bus stand because of his rash and negligent driving, he dashed against a boy by name, Furkhan S/o Faruq, aged about 7 years, causing fatal injuries, resulting in his death.

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3.2. The way in which the incident has occurred was

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reported and the jurisdictional police registered FIR for the offences under Sections 279 and 304 of IPC.

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3.3. After thorough investigation, charge sheet also came to be filed for the offences under Sections 279 and 304A of IPC.

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Learned Trial Magistrate took cognizance and committed the matter in view of the fact that the offence alleged against the accused under Section 304 of IPC was exclusively triable by the Court of Sessions.

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Learned Sessions Judge took cognizance of the offences alleged against the accused and registered the case in S.C.No.169/2016 and framed the charges for the offences under Sections 279, 304A and 304 of IPC after securing the presence of the accused.

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Accused pleaded not guilty. Therefore, trial was

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held.

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In order to bring home the guilt of the accused,

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the prosecution in all examined thirteen witnesses as P.W.1 to P.W.13 and placed on record eight documents which are exhibited and marked as Exhibit P.1 to P.18 comprising complaint, spot mahazar, photographs of the offending vehicle, inquest mahazar, post mortem report, sketch map of spot mahazar, motor vehicle report, photos of the deceased and FIR.

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On conclusion of recording of evidence, accused statement as is contemplated under Section 313 of Cr.P.C. was recorded, wherein accused has denied all the incriminatory material found in the case of the prosecution but failed to place on record his version about the incident either orally or in writing as is contemplated under Section 313(4) of Cr.P.C.

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Thereafter, learned Trial Judge heard the arguments of the parties in detail and by impugned judgment, convicted the accused for the offences under

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Sections 279 and 304A of IPC and sentenced as referred

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to supra.

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Being aggrieved by the same, accused has

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preferred the present appeal on the following grounds:

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The impugned Judgment of conviction passed by the Trial Court is contrary to law and facts of the case. Thus the Judgment of conviction is contrary to materials available on record and evidence of the prosecution witnesses and thus has erroneously convicted the appellant/accused.

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The Trial Court failed in noticing the fact that, the so called eyewitnesses namely; PW.2 and PW.3 have turned hostile to the case of prosecution and further that, PW.4 is not definite who caused the accident, this being the evidence on record the trail court ought to have given benefit of doubt to the appellant and ought to have acquitted of all charges.

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That Trial Court has totally based its conviction on the evidence of PW.6 and 10 who are said to be interested witnesses and also that, PW.6 is a minor and PW.10 is also a minor as such they should have been treated as child witness

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for which the court should have taken all necessary steps to see whether both these witnesses are capable to understand the questions and give correct answers, but the Trial Court without taking such necessary steps has directly allowed the prosecution to examine them as regular witnesses and hence basing conviction on these two witnesses is not safe and justifiable. Hence the impugned Judgment of conviction deserves to be set aside.

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The Trial Court ought to have seen that, PW.1 is the complainant and is not eyewitness to the case PW.2 and PW.3 are eyewitness to the case who have turned hostile PW.4 is another eyewitness but not definite about identifying the driver of the offending vehicle rest other two witnesses are child witness.

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The Trial Court has also ignored the fact that, PW.5 the panch to the spot panchanama has also not supported the case of the prosecution and further PW.2 who is projected as eyewitness has also turned hostile to the prosecution case, this being the evidence available on record, the court below without properly assessing the evidence on record has wrongly convicted the appellant.

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The Trial Court has also ignored the fact that, PW.9 who is witness to the inquest panchanama has also given a go by to the case of prosecution, but however the Trial Court relied the evidence of two child witnesses and other police witnesses including the doctor and has thus wrongly convicted the appellant for the offences punishable U/Sec.279 and 304-A of IPC, on the contrary the trial court ought to have given benefit of doubt in favour of the appellant and acquit the appellant of all charges.

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Viewed at any angle the impugned Judgment of conviction dated: 30.06.2020 passed in S.C No.169/2016 deserves to be set aside. Since it suffers from not properly appreciating and analyzing the materials and evidence on record.

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Sri Sanjay A. Patil, learned counsel for the appellant would contend that the incident has not occurred as is portrayed by the prosecution and accused was driving the Bolero Jeep with all care and caution and it is the deceased, the young boy, who came on the road all of

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a sudden and despite best efforts, accused could not stop the vehicle. Therefore, attributing the negligence on the part of the accused, especially, in view of the answer to question No.14 which has been ignored by the learned Trial Judge and sought for allowing the appeal.

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Alternatively, Sri Sanjay A. Patil, learned counsel for the appellant would contend that in the event this Court upholding the order of conviction, taking note of the fact that the accused is a sole bread earner, by enhancing the fine amount reasonably, sentence of imprisonment may be set aside.

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Per Contra, Sri Jamadar Shahabuddin, learned High Court Government Pleader would support the impugned judgment by contending that even though while answering the question No.14, the accused has stated that

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the victim boy has suddenly came on road. But to substantiate said defence, no possible or plausible material evidence is placed on record by the accused. Further, the

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chargesheet was not challenged by the accused even though he was charged for the offence under Section 304 of IPC instead of Section 304A of IPC.

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He further contended that the injuries found on the body of the deceased as could be seen from the photographs placed on record vide Exhibit P.7 coupled with inquest mahazar and the post mortem report would make it crystal clear that the death has occurred due to head injury. If the boy had run on the mid road as is contended by the accused, the injury could have been on the other parts of the body as well and not only on the head. Therefore, the theory that is put forth on behalf of the appellant cannot be countenanced in law and thus sought for dismissal of the appeal.

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Having heard the arguments on both sides, this Court perused the material on record meticulously. On such perusal of the material on record, following points would arise for consideration:

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(i) Whether the material evidence placed on record would be sufficient enough to maintain the conviction of the appellant for the offences under Sections 279 and 304A of IPC?

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(ii) Whether the impugned judgment is suffering from legal infirmity and perversity and thus calls for interference?

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(iii) Whether the sentence is excessive?

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(iv) What order?

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Regarding Point Nos.1 and 2:

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In the case on hand, in order to bring home the guilt of the accused, the prosecution in all examined thirteen witnesses.

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Among them, P.W.2 to P.W.4 are the eyewitnesses. P.W.1 is the complainant, who set the criminal law into motion. He deposed that the deceased is

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his nephew. It is his case that his sister was married to Faruq, who deserted his sister and two children namely, Furkhan and Imran Khan and his sister and her children were given shelter in his house. It is also his case that Furkhan (deceased) was the elder son of his sister and Imran Khan was his brother.

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It is his further testimony that about 3-4 years earlier to the date of deposition, deceased had visited Bidar to procure the school books along with 3-4 other children. At about 04:00 p.m., when he was performing namaz in the Masjid, he received a telephone call but he did not answer the same. After finishing the namaz, when he came out from the Masjid, 2-3 people, who had assembled in front of the Masjid, told him that Furkhan met with an accident and he is no more. Immediately, he went to the place and by then, the body was shifted to the hospital. He went to the hospital and saw the dead body of Furkhan. When he went to the place of incident, he has noticed that a bolero vehicle was parked and he identified

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the accused as the driver of the said vehicle. Police visited him and took the complaint, which he identified as Exhibit P.1.

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In his cross-examination, there is no useful material elicited so as to disbelieve the lodging of the complaint. Admittedly, P.W.1 is a person, who came to know about the incident from others and his evidence is only restricted to filing of the complaint.

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P.W.2 is Saajid Miyya, who is an auto driver.

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He did not support the case of the prosecution and therefore he has been treated as hostile witness and cross-examined by the prosecution, wherein the contents of his statement were confronted but he denied the same. So also P.W.3 – Siddappa, who is another auto driver did not support the case of the prosecution.

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Classmate by name, Umera Begum is examined as P.W.4. She deposed before the Court about the incident and also about the identity of the accused. She has turned

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partly hostile to the case of the prosecution and therefore

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she has been treated as hostile witness.

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In her cross- examination on behalf of the prosecution, she admits that P.W.2 and P.W.3 were present but denied that it is they who had apprehended the accused. In her cross-examination, she admits that she did not know what happened in the hospital.

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Syed Maulana, a plumber, who was the panch witness to Exhibit P.4 Panchanama supported the case of the prosecution.

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Likewise, Syed Ismail is a student, who deposed

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about the incident and he being present along with Umera Begum at the place of incident. He has stated that accused was the driver of the bolero Jeep, which came in a rash and negligent manner and dashed against Furkhan.

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In his cross-examination to a specific suggestion that accused was not apprehended at the spot,

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this witness has answered that soon after the accident, accused tried to flee away along with his vehicle but he was apprehended at a short distance.

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The mother of the deceased is examined as P.W.7. She came to know about the incident and she deposed based on information she received and she supported the case of the prosecution.

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P.W.8 – Khajamiyan S/o. Mustafa, who is a

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mahazar witness to inquest panchnama, did not support the case of the prosecution in toto.

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P.W.9 – Siddu S/o. Kashinath, who is also one

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of the mahazar witnesses to inquest panchnama, their evidence is formal in nature.

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P.W.10 – Saniya Begum D/o. Maheboob is yet

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another girl student, who was present at the time of incident and was witnessed the accident, has supported the case of the prosecution to an extent, and she did not

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specifically state before the Court that because of the negligence of the accused the incident has occurred. She has been treated as hostile witness and cross-examined by the prosecution, but in such cross-examination no useful material is elicited.

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P.W.11 – Toufiz Ahmed S/o. Basheer Ahmed is the PWD Engineer, who prepared the spot sketch and supported the case of the prosecution.

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The Investigating Officers are examined as P.Ws.12 and 13, have deposed before the Court that they have registered the case, investigated the matter in detail and filed charge-sheet.

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Above evidence on record is sought to be reappreciated by the learned counsel for the appellant in the light of the appeal grounds.

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On careful consideration of the aforesaid evidence on record, it is crystal clear that death of the

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boy, by name Furkhan in a road traffic accident is not in dispute.

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Inquest mahazar and postmortem report would sufficiently establish that because of the accidental injuries sustained on his head, boy lost his life. No doubt, few of the eyewitnesses and one of the girl student was also present, did not support the case of the prosecution in establishing the guilt of the accused. However, the suggestions made to the prosecution witnesses that the incident has occurred when the boy tried to cross the road, all of sudden shows that it is the present appellant, who was the driver of the bolero jeep, which hit the Furkhan resulting in his death on spot. Uncle and mother of the deceased came to know about the incident and immediately they have rushed to the hospital.

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Fact that the bolero jeep hit the deceased resulting in head injury and Furkhan losing the life is thus

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established by the prosecution by placing cogent and convincing evidence.

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The alternate theory put forward by the accused that it is the mistake of the boy, who suddenly crossed the road and whereby the appellant could not control the vehicle and accident has occurred, is not probablised by placing atleast plausible evidence on record.

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No doubt, while answering question No.14 at the time of recording the accused statement, the appellant has stated that the boy suddenly crossed the road and therefore, accident has occurred. But the spot mahazar does not show the break marks on the road, which would indicate that the alternate theory propounded by the accused has not been established to any extent, muchless, an acceptable one.

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In a matter of this nature, accused is bound to place his version on record as he is one of the participants

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in the incident. Such an opportunity would be granted to the accused after prosecution places a believable evidence on record. Such an opportunity is in the form of recording of accused statement as is contemplated under Section 313 of Cr.P.C.

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Recording of an accused statement as is contemplated under Section 313 of Cr.P.C. is not purposeless or an empty formality. It serves dual purpose.

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Firstly, it is the mandatory duty of the Trial Judge to put across the incriminatory circumstances available in the prosecution evidence and seek for explanation from the accused to such incriminating circumstances.

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Secondly, it provides an opportunity for the accused to putforth his version about the incident. If the accused deliberately fails to make use of such an opportunity granted to him at the time of recording the

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accused statement as is contemplated under Section 313

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of Cr.P.C., the consequences in law should follow.

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View of this Court in this regard is supported by the legal principles enunciated by the Hon’ble Apex Court in the case of Ravi Kapur Vs. State of Rajasthan reported in (2012) 9 SCC 284. Paragraph No.39 of the said judgment is culled out hereunder for ready reference:

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“39. It is true that the prosecution is required to prove its case beyond reasonable doubt but the provisions of Section 313 Cr.P.C. are not a mere formality or purposeless. They have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the accused in accordance with law and, secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the Court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing on the case.”

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Applying the principles of law enunciated in the

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case of Ravi Kapur (supra) to the case on hand, in this case, except answering that the boy came all of a sudden on the middle of the road and whereby the accused is not responsible for the accidental death of Furkhan, cannot be countenanced in law as there is no other metal evidence, which would corroborate the stand taken by the accused.

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Further, what made the accused in not placing his version of the incident in writing as is contemplated under Section 313(4) of Cr.P.C. is a question that remains unanswered on behalf of the accused.

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The appellant/accused could have examined himself as a witness or other inmate in the bolero jeep, he could have been examined as a witness to probablise his alternate theory that because of the negligent crossing of the road of Furkhan, resulted in his accidental death.

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In the absence of any such material on record, this Court is unable to agree with the contentions raised

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on behalf of the appellant that the prosecution evidence is not sufficient to record an order of conviction and as such, the impugned judgment is suffering from legal infirmity and it could be termed as perverse. In view of the foregoing discussion, point No.1 is answered in the affirmative and point No.2 in the negative.

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Regarding point No.3:

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In the case on hand, deceased is 7 year old boy. Accidental injury to the head, resulted in death of Furkhan on spot. A valuable life has been lost. Since the conviction order is confirmed and learned Trial Judge has applied his judicious mind in acquitting the accused for the offence under Section 304 of IPC and State did not choose to challenge acquittal of the accused for the offence under Section 304 of IPC, this Court is of the considered opinion that the imprisonment of one year if reduced to six months, ends of justice would be met. Accordingly, point No.3 is answered partly in the affirmative.

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Regard point No.4:

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In view of the finding of this Court on point Nos.1 to 3 as above, following order is passed:

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ORDER

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a) Appeal is allowed in part.

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b) While maintaining the conviction of the appellant/accused for the offences punishable under Sections 279 and 304-A of IPC, sentence of imprisonment ordered by the Trial Judge for the offence punishable under Section 304-A of IPC is hereby modified by directing the accused to undergo simple imprisonment for a period of 6 months. Rest of the sentence is unaltered.

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