1. This revision petition is preferred by the revision petitioner-accused challenging the legality and correctness of the judgment and order dated 30.10.2006 passed by the Civil Judge (Jr. Dn.) and Additional JMFC, Bhadravathi in C.C. No.3655/2003 and also the judgment and order dated 18.01.2010 passed by the Fast Track and Additional MACT (11), Bhadravathi, in Crl. Appeal No.113/2006.
2. Charge sheet was filed against the revision petitioner for the offences punishable under Sections 279, 337, 304A read with Section 34 of IPC. In proof of its case, the prosecution, in all has examined 11 witnesses and got marked the documents at Exs.P.1 to P.7(a). On the side of the defence, no witness was examined or any documents were produced. After perusing the materials, both oral and documentary, ultimately, the trial Court held that the revision petitioner-accused is guilty of the said offences and accordingly, convicted the revision petitioner. Being aggrieved by the judgment and order of conviction passed by the trial Court, the revision petitioner preferred an appeal and the first appellate Court also after considering the materials placed before it, has dismissed the appeal and confirmed the judgment and order of conviction passed by the trial Court. Being aggrieved by the judgment and orders of the Courts below, the revision petitioner is before this Court in this revision petition.
3. Brief facts of the prosecution case made out before the trial Court are that the revision petitioner- accused being the driver of the car bearing No.KA-5-N- 2945 drove the same on 17.5.2003 at about 9 a.m. on N.H. 206 towards Tarikere in very rash and negligent manner, and dashed the same to the bicycle drove by Mahesh Kumar, the pillion rider of which was Yogesh, and the car dashed to the back portion of the bicycle and caused the accident near Karehalli village. Due to the accident, both the bicycle riders fell down and there was serious injury sustained to Yogesh, and Mahesh Kumar sustained simple injuries on the various parts of his body. Immediately, Mahesh Kumar and Yogesh were shifted to different hospitals. But while taking Yogesh towards Mc.Gann Hospital, he succumbed to the injuries. Accordingly, the case came to be registered against the revision petitioner-accused.
4. I have heard learned Counsel for the revision petitioner-accused and the learned HCGP for the respondent-State.
5. Learned Counsel for the revision petitioner- accused made submission that looking to the prosecution witnesses, it clearly shows that in fact they are not the eye witnesses to the incident. Looking to the sketch and the spot mahazar, they go to show that the accident is because of the fault on the part of the rider of bicycle and not because of the fault and the negligence on the part of the driver of the car in question. The learned Counsel submitted that when the rider as well as the pillion rider both were moving on the said bicycle, a lorry came from the front side of the bicycle. Probably, the rider of the bicycle might have lost the control and because of that reason, both the riders fell down and nothing can be attributed to the driver of the car i.e., accused, who was coming behind the said bicycle. The learned Counsel further made submission that even looking to the oral evidence of the rider of the bicycle (P.W.2) so also P.W.7, who claims to be the eye witnesses to the incident, there is no consistency in their evidence and there are contractions in the evidence of these witnesses. Hence, he submitted that the oral evidence adduced by the prosecution witnesses cannot be held that case proved beyond reasonable doubt. The learned Counsel also submitted that the spot mahazar and the sketch would show that the rider and pillion rider who were moving on the bicycle were in the middle of the road and not on the left side of the road. Hence, these important material aspects were not at all taken care of by the trial Court as well as the first appellate Court. The learned Counsel further submitted that the first appellate Court being the last Court to consider the factual aspects has not at all considered the evidence adduced by the witnesses and it simply endorsed its views to that of the trial Court. Looking to the judgment of the first appellate Court, even the point for consideration is not properly framed by it. Hence, the judgment and orders passed by the Courts below are not sustainable in law and they are not in accordance with the materials placed on record.
Alternatively, the learned Counsel submitted that the matter may be remanded back to the first appellate Court to consider the matter afresh on all the material factual aspects produced before it. Even if there is conviction of the revision petitioner, the trial Court as well as the first appellate Court ought to have considered the case of the petitioner under Section 360 of Cr.P.C. and they could have released him on the probation of good conduct. That was also not done by the Courts below. The learned Counsel submitted that even though no such application was filed before the Courts below, it was the duty of both the Courts to consider the case under Section 360 of Cr.P.C. and they could have stated in their judgment as to why the provisions under Section 360 of Cr.P.C. are not made applicable to the case. Hence, the learned Counsel submitted to allow the petition and to set aside the judgment and orders of the Courts below. In support of his arguments, the learned Counsel for the revision petitioner relied upon the following decisions:
i) 2000(2) KCCR 811 - The State of
Karnataka Vs. Sadanand Parusharam
Hosurkar
ii) AIR 1979 SC 964 - Bhimu Deo Shaw
Vs. State of West Bengal
iii) 4) SCC 185 - Paul George Vs. State of
NCT of Delhi.
6. Per contra, learned HCGP appearing for the respondent made submission that all the prosecution witnesses have supported the case of prosecution and have not turned hostile in this case. The complainant (P.W.1), rider of the bicycle (P.W.2) and the witness (P.W.7) are all the eye witnesses to the incident and they have consistently supported the case of prosecution. In the cross examination of these eye witnesses, the defence has not made out the case to disbelieve their evidence. The learned HCGP has also made submission that P.Ws.4 and 6 are the panch witnesses to the spot mahazar. They have also supported the prosecution case. Looking to the spot mahazar, sketch and the oral evidence of the prosecution witnesses, it was properly considered by the trial Court. The trial Court has rightly come to the conclusion in convicting the revision petitioner-accused for the said offence. No illegality has been committed by the trial Court. Even looking to the judgment of the first appellate Court, it has referred to the evidence of the prosecution witnesses so also the judgment of the trial Court, then only it came to the conclusion in dismissing the appeal and confirming the judgment and order passed by the trial Court.
So far as invoking the jurisdiction under Section 360 of Cr.P.C. is concerned, the accused has not made any request either before the trial Court or before the first appellate Court. Apart from that, looking to the nature and gravity of the offence punishable under Section 304A of IPC, the minimum sentence of imprisonment ought to have been six months whereas in the case on hand, the sentence of imprisonment imposed is only one month with fine. Hence, the accused is not entitled for his release by invoking the jurisdiction under Section 360 of Cr.P.C. Therefore, the learned HCGP submitted that there is no merit in the revision petition and the same is to be rejected.
7. I have perused the grounds urged in the revision petition, judgment and orders passed by the trial Court as well as the first appellate Court. I have also perused the other materials placed on record as the original records are secured from the Courts below.
8. Looking to the prosecution case, P.W.2 and the deceased were proceeding on the bicycle on the left side of the road. The deceased was the pillion rider. The accused being the driver of the car came from behind and dashed the bicycle and thereafter, caused the accident. Due to impact, the deceased as well as the rider of the bicycle sustained the injuries. The contents of P.M. Report of the deceased as well the as the injury certificate of P.W.2 clearly shows that both the deceased and P.W.2 sustained the injuries in the accident. So far as the rash and negligent driving alleged by the prosecution, the trial Court observed in its judgment that P.W.2, rider of the bicycle, who has clearly deposed in his evidence that the accused came from behind driving the car in rash and negligent manner and dashed to the rider and thereafter, caused the accident. The trial Court has also referred to the evidence of P.W.7, another eye witness and it is observed by the trial Court that the evidence of P.W.7 is consistent as per the allegations made in the case of prosecution. It is no doubt true that so far as the complainant (P.W.1) is concerned, the trial Court has observed that he is the chance witness as he has deposed that when he was returning from the field, at that time, he has witnessed the incident. Only because of that reason, his evidence tendered before the Court on oath, and unless, it is shown by way of cross examination, it cannot be disbelieved. So looking to the oral evidence of these three witnesses, P.Ws.1, 2 and 7 though there may be some discrepancies in their evidence, but, they are minor discrepancies. They will not go to the root of the case of prosecution to disbelieve their evidence.
9. I have also perused the I.M.V. report (Ex.P.7) submitted by the motor vehicle inspector which was tendered in evidence before the trial Court wherein the inspector has mentioned that the damage caused to the car is on the left front side. This aspect itself clearly goes to show that the rider as well as the pillion rider of the bicycle were moving on the left side of the road otherwise the damage could have been either on the right side or on the middle portion of the car. But looking to the said document, the case of prosecution is fortified that they were proceeding on the left side of the road. Even the motor vehicle inspector in his certificate has stated the accident is not because of the mechanical defect in the vehicle.
10. The further contention of learned Counsel for the revision petitioner is that when P.W.2 and the deceased were proceeding on the bicycle, a truck was also coming from the front side and the rider of the bicycle might have lost control over the bicycle and might have fallen down and sustained the injuries. For this, there is no evidence produced by the accused during the course of cross examination of the witnesses. Only on the basis of the said hypothetical submission of the learned Counsel for the revision petitioner and unless and until there is positive proof for the said contention, it cannot be accepted that the accident might have happened in such a manner. On the other hand, looking to the materials placed on record and the judgment and orders of the Courts below, it is established to the satisfaction of the Courts that the accident is because of rash and negligent driving by the driver of the car i.e., the revision petitioner-accused himself.
11. Apart from that the accused has been examined before the Court below under Section 313 of Cr.P.C. In the accident cases, the driver of the vehicle is the best and competent witness to explain as to the mode and manner in which the accident took place, because the things are within the knowledge of the driver of the said vehicle and he is the better person to know about all those things. When a specific question was put to the accused by the Court as per question No.15, whether he wanted to say anything about the accident, he said that there is no fault of him. As per question No.16, whether he has any defence witness, for that purpose, he said ''no''. Looking to this answers given during the examination under Section 313 of Cr.P.C., the accused has not explained as to how the accident took place. If the submission of the learned Counsel for the revision petitioner-accused is said to be true, the same could have been explained by the accused by way of answer to the said questions under Section 313 of Cr.P.C., which has not been done in this case.
12. So far as the concurrent findings of the Courts below, on the factual aspect, now, in this petition, this Court cannot look into the entire factual aspect of the matter, unless it is shown that the grave illegality has been committed by the Courts below in coming to such conclusion. Therefore, looking to the judgment and orders of the Courts below, I do not find any illegality nor there is any perverse or capricious view taken by the Courts below in coming to such conclusion.
13. Looking to the judgments produced by the learned Counsel for the revision petitioner-accused, I have carefully gone through the judgments which speak regarding the cause for the accident. Perusing the said judgments, I am of the opinion that the factual story involved in those cases is altogether different from the factual story involved in the case on hand. Therefore, the said decisions will not come to the aid and assistance of the revision petitioner.
14. With regard to invoking the jurisdiction under Section 360 of Cr.P.C. is concerned, admittedly, the revision petitioner has not made such request either before the trial Court or before the first appellate Court. Apart from that, looking to the nature and gravity of the offence and the sentence imposed by the trial Court for the offence punishable under Section 304A of IPC, the trial Court has imposed the sentence only for the period of one month with fine of Rs.5,000/-. So far as the other two offences are concerned, only fine is imposed. Therefore, the sentence passed by the trial Court which is approved and confirmed by the first appellate Court is reasonable and proportionate. Therefore, there is no question of releasing the revision petitioner on the probation of good conduct as submitted by the learned Counsel for the revision petitioner.
15. Looking to the materials placed on record, there is no justifiable and valid grounds for this Court to interfere with the judgment and orders of the Courts below either in modifying or setting aside the same. The revision petition fails and the same is hereby dismissed.
