B.R. Pradeep vs State of Karnataka

A.S. Pachhapure

The revision petitioner has challenged the concurrent findings of his conviction and modified sentence for the offence punishable u/s 304-A IPC.

The facts relevant for the purpose of this petition are as under:

It is on 22.8.1997 at about 8.35 a.m. the petitioner (the accused) was driving a Tempo bearing Reg.No. KA-02-A-3658 on Bangalore-Mangalore Road and while the vehicle was near Sun Light Match. Factory, the vehicle capsized and in the said accident, an inmate by name Praveen Kumar succumbed to the injuries on the spot and many others sustained injuries.

PW, 1 Mohan submitted his complaint Ex.P.1 about the rash and negligent act of the petitioner in driving the said vehicle and during the course of the investigation, the inquest mahazar Ex.P.8 was held and the dead body was subjected to post mortem examination. The injured were sent to the hospital for treatment. The statements of the witnesses were recorded The vehicle was examined by the Motor Vehicle''s Inspector and Ex.P. 10 the report was collected. A charge sheet was filed for the offences punishable under Sections 279, 337, 338 and 304-A by PW. 11.

To prove the guilt, the prosecution examined PWs.1 to 11 and got marked the documents Exs. P. 1 to P.10. The statement of the accused was recorded u/s 313 Cr.P.C. The accused took the defense of total denial. The Trial Court after hearing the parties and or appreciation of the material on record, convicted the accused for the offences under Sections 279, 337, 338 and 304A IPC and ordered sentence of imprisonment and fine. Aggrieved by the said order, the petitioner approached the First Appellate Court in Crl. A. No. 113/2003 and the said appeal was allowed in part affirming the conviction for the offence punishable u/s 304-A IPC and ordered the petitioner to undergo simple imprisonment for six months. The conviction for the other offences were set aside. Aggrieved by the findings, the present revision petition has been filed.

I have heard the learned counsel for the petitioner and the learned High Court Government Pleader.

The prosecution to prove the guilt examined PWs..1 to 5, 7 and 9 the inmates of the vehicle and they consistently state that the vehicle was driven in a high speed and it was raining at the time of the incident and the vehicle capsized and thereby, Praveen Kumar (the deceased) succumbed to the injuries at the spot and the rest of the inmates sustained both grievous and simple injuries. It is not a case of collision between the vehicles. So, in such circumstances, as to the cause of the accident, it is within the knowledge of the accused, the petitioner herein and it is for him to explain the reason how the vehicle: capsized. The cross examination of the witnesses does not reveal any suggestion assigning the reasons for the accident. Even the perusal of the statement u/s 313 Cr.P.C. does not offer any explanation as to why the accident occurred. Thereby, the principle of res ipsa loquitur applies and the presumption could be raised that the accident was due to the rash and negligent act on the part of the petitioner.

A presumption itself is not sufficient to award conviction as it is the duly of the prosecution to establish conclusively the rash and negligent act As could be seen from the defense. PW.5 in the cross examination states that one Mohammad (PW.9) was in the Cabin along with the driver and that he does not know as to whether the said Mohammed was driving the vehicle. The prosecution has examined Mohammad as PW.9 and he states that he was an inmate of the vehicle and that the vehicle was driven in high speed and it was raining and it is in such circumstances that the vehicle capsized. So the defense of the petitioner that PW.9 was driving the vehicle has not been proved even to the extent of probability and from the perusal of the evidence of PWs. 1 to 5 and 9, a consistent version could be found as regards the manner of the accident. The road at the spot of the accident is 25 feet in width. There is mud road on both the sides and there were no other vehicles at the time of the accident. If the petitioner had driven the vehicle slowly, the accident could not have occurred. In the circumstances, when it was raining, fast driving and applying the brakes suddenly has led to the accident in question and therefore, it is satisfactorily proved from the evidence of these witnesses that it was due to rash and negligent driving of the vehicle by the petitioner. Therefore, it could be said that the petitioner has not made out any grounds to warrant interference so far as the conviction is concerned.

So far as the sentence is concerned, it is the submission of the learned counsel for the petitioner that at the time of the incident, the petitioner was driving a private vehicles and subsequently, he has been appointed as a Driver in the KSRTC. In these circumstances it is the submission that in case, if the petitioner loses his job by undergoing sentence of imprisonment, ins family will be put to irreparable loss. It is necessary to note that this accident occurred prior to the appointment of the petitioner in the KSRTC. Past misconduct generally does not come in the way of the employment. So taking into consideration the circumstances that the petitioner has a family to maintain and that the accident was at the time when he was the driver of a private vehicles and that he may lose his job, in case, if he is ordered to undergo imprisonment as ordered by the First Appellate Court. 1 think the ends of justice will be met in case, if the sentence of imprisonment till the raising of the Court is ordered and thes compensation to the legal representatives of deceased Praveen Kumar and the injured is granted. In that view of the matter. I proceed to pass the following:

ORDER

The petition is partly allowed affirming the conviction of the petitioner for the offence u/s 304-A IPC. He is ordered to undergo imprisonment till the raising of the Court and he is directed to pay compensation of Rs. 75.000/- within a period of three months from the date of this order and the same shall be deposited before the JMFC. On deposit of the compensation, an amount of Rs. 45.000/- shall be paid to CW.12 Nanjundappa the father of deceased Praveen Kumar and an amount of Rs. 10,000/- shall be paid to PW.2 Mallikarjuna and Rs. 5.000/- each to PWs.3, 4, 5 and 7. As the punishment awarded is in respect of past misconduct, it shall not come in the way of the employment of the petitioner.