Shek Rafikur Rehaman Vs State of Karnataka by

THIS CRL.RP IS FILED U/S.397 & 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 9.08.2016 PASSED BY THE III ADDL. DIST. AND S.J., RAMANAGARA IN CRL.A.NO.56/2011 DISMISSING THE APPEAL FILED BY THE PETR. HEREIN BY CONFIRMING THE JUDGMENT DATED 11.11.2011 PASSED BY THE PRL. C.J. AND J.M.F.C., RAMANAGARA IN C.C.NO.61/2008.

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THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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HC-KAR

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ORAL ORDER

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Accused is before this Court in this revision petition filed under Section 397 read with Section 401 of Cr.PC. with a prayer to set-aside the judgment and order of conviction and sentence passed in CC No.61/2008 by the Court of Principal Civil Judge and JMFC, Ramanagara dated 11.11.2011 confirmed by judgment and order dated 09.08.2016 in Crl.A.No.56/2011 by the Court of III Addl. District and Sessions Judge, Ramanagara.

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Heard the learned counsel for the parties.

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Petitioner has been charge sheeted for the offences punishable under Sections 279, 337 and 304(A) of IPC and was tried for the charge sheeted offences before the jurisdictional Court of Magistrate in CC No.61/2008. It is the specific case of the prosecution that on 07.08.2007 at about 04:00 p.m., petitioner, who was the driver of the goods auto bearing registration No.KA05/D1987 drove the said vehicle in a rash and negligent manner endangering human life and dashed the said vehicle against deceased Manjunath and as a result,

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HC-KAR

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Manjunath, who had suffered grievous injuries succumbed to

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the same while undergoing treatment in the Hospital.

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The prosecution in order to prove the charge sheet

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allegations made against the petitioner, had examined six charge sheet witnesses as PW1 to PW6 and got marked eight documents as Exs.P-1 to P-8. On behalf of the defence, no oral or documentary evidence was placed on record before the Trial Court. After hearing the arguments addressed on both sides, the Trial Court convicted the petitioner for the charge sheeted offences and for the offence punishable under Section 304(A) of IPC, he was sentenced to undergo simple imprisonment for a period of one year and pay fine of Rs.5,000/- and in default, to undergo simple imprisonment for a period of one month. For the offence punishable under Section 279 of IPC, petitioner was sentenced to pay fine of Rs.1,000/- and in default, to undergo simple imprisonment for a period of one week. For the offence punishable under Section 337 of IPC, petitioner was sentenced

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to pay fine of Rs.500/- and in default, to undergo simple imprisonment for a period of two weeks. The said judgment and order of conviction and sentence passed in CC No.61/2008

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against the petitioner was confirmed by the Appellate Court in Crl.A.No.56/2011 vide judgment and order dated 09.08.2016. Assailing the aforesaid two judgment and order of conviction and sentence, the petitioner is before this Court.

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Learned counsel for the petitioner having reiterated the grounds urged in the petition submits that there is a lot of inconsistency in the evidence of PW1 to PW3. The evidence available on record does not clearly establish that the petitioner was driving the offending vehicle in a rash and negligent manner on the alleged date of the incident. The presence of the alleged eyewitness at the spot of crime itself becomes doubtful having regard to the discrepancy in their evidence. The Trial Court has not properly appreciated the oral and documentary evidence available on record and has erred in convicting the petitioner for the alleged offences. He submits that the sentence imposed on the petitioner for the offence punishable under Section 304(A) of IPC is on the higher side. Accordingly, he has prayed to allow the petition.

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Per contra, learned HCGP has argued in support of the impugned judgment and order of conviction and sentence and

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submits that the oral and documentary evidence available on record clearly proves the charges levelled against the petitioner. Both the Courts having appreciated the same have rightly convicted the petitioner for the alleged offences. Even the sentence imposed on the petitioner is just and proportionate. Accordingly, he prays to dismiss the petition.

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The prosecution in order to prove its charges against the petitioner in all has examined six charge sheet witnesses as PW1 to PW6. PW1/Kumar, is the first informant in the present case. This witness has clearly stated that on the alleged date of incident, petitioner drove the offending vehicle in a rash and negligent manner and had dashed the same against Manjunath, who was along with his father/CW2 - Devaraju. This witness has stated that as a result of the accident, the offending auto rikshaw toppled upside down and in the said accident, even the driver of the offending vehicle sustained injuries. This witness

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has also spoken about the presence of PW3/Bharath at the spot of the accident and he has stated that even Bharath had suffered injuries in the accident in question. During the course of cross-examination of this witness, it was suggested to him

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that even before the accident had taken place, the offending vehicle had toppled upside down near the spot of accident. By making such a suggestion, the defence has virtually admitted that the offending vehicle was found at the spot of crime after the accident in question. The petitioner, who is the driver of the auto rikshaw has been identified by PW1.

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PW2 is the father of deceased-Manjunath. Even this witness has spoken that on the alleged date of incident, the petitioner, who was driving the offending auto rickshaw in a rash and negligent manner, had dashed the vehicle against his son-Manjunath. As a result, Manjunath suffered grievous injuries and he was immediately shifted to Hospital. This witness also has spoken about presence of Bharath - PW3 at the spot of accident and he has stated that even Bharath had suffered injuries in the accident in question. PW2 also has identified the petitioner as the driver of the offending auto rickshaw.

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PW3 - Bharat was a student aged about 14 years, who was the schoolmate of deceased Manjunath. This witness has also spoken about the accident in question. He has stated that

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Manjunath and PW2 were walking on the footpath when the offending autorikshaw, which was driven by the petitioner in a rash and negligent manner, dashed against Manjunath and caused injuries. He has stated that in the said accident, PW2 had suffered injuries. Petitioner has been identified as the driver of the offending vehicle. Wound certificate of PW2 and PW3 who had suffered injuries in the accident in question have been produced by the prosecution and marked as Exs.P6 & P7.

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PW1 to PW3 who are the alleged eye-witnesses in the present case have clearly stated that the offending vehicle was driven in a rash and negligent manner by the petitioner on the alleged date of accident, in which deceased Manjunath had suffered grevious injuries and was shifted to the hospital. It is not in dispute that Manjunath had succumbed to the injuries in the hospital while undergoing treatment. His postmortem report is produced as Ex.P5.

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PW4 is the Circle Inspector of Police who had conducted further investigation in the present case. He has stated that petitioner had voluntarily surrendered before the police station and was subsequently released on bail. This witness also has

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identified the petitioner as the driver of the offending vehicle.

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PW5 - Suresh is the panch witness to the spot mahzar. This witness also has supported the case of the prosecution and the spot mahazar is marked as Ex.P2 and the signature of this witness has been marked as Ex.P2(b).

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PW6 - Purushotham is the Sub-Inspector of Police who had received the first information from PW1 and registered FIR in Crime No.165/2007 against the petitioner for the aforesaid offences. Though the aforesaid witnesses were cross-examined on behalf of the defence, nothing material has been elicited from their mouth so as to disbelieve their version. The Trial Court as well as the Appellate Court, having appreciated the oral and documentary evidence available on record, have rightly convicted the petitioner for the charge-sheeted offences.

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It is not in dispute that the petitioner was the driver of the offending vehicle on the alleged date of incident. Additionally, PW1 to PW-3 have identified the petitioner as the driver of the offending vehicle and they have also stated that the offending vehicle was driven in a rash and negligent manner by the petitioner, which had resulted in the accident in

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question, in which Manjunath who had sustained grievous injuries had died. PW2 and PW3 are injured eye-witnesses to the accident in question. Therefore, I am of the opinion that the prosecution had proved the charges against the petitioner beyond reasonable doubt and the courts below were, therefore, justified in convicting the petitioner for the charge-sheeted offences.

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Considering the fact that the accident in question had taken place in the year 2011 and already 14 years have lapsed, thereafter, I am of the opinion that if the order of sentence imposed against the petitioner for the offence punishable under Section 304A of IPC is modified, the same would meet the ends of justice. Accordingly the following order:

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Criminal revision petition is allowed in part. The judgment and order of conviction passed by the courts below convicting the petitioner for offences punishable under Sections 279, 337 and 304A IPC are confirmed. The order of sentence passed against the petitioner by the courts below for the offences punishable under Sections 279 & 337 IPC is confirmed. The order of sentence passed against the petitioner for offence

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punishable under Section 304A IPC is modified and for the said offences, the petitioner is sentenced to undergo simple imprisonment for a period of six months and pay fine of Rs.10,000/-, and in default petitioner is directed to undergo simple imprisonment for a further period of one month.

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Sd/(S VISHWAJITH SHETTY)

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JUDGE

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DN/KK

Shek Rafikur Rehaman v. State of Karnataka by

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Shek Rafikur Rehaman v. State of Karnataka by

Case brief

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