ORDER
A.S. Pacchapure, J.
1. This revision by the petitioner is directed against the Judgment and Order passed by the Presiding Officer, Fast Track Court-II, Raichur, in Criminal Appeal No. 3/2003, dated 24.01.2005, partly allowing the appeal and confirming the Judgment and Order passed by the Chief Judicial Magistrate, Raichur, in C.C. No. 505/2001 dated 11.03.2003 convicting the petitioner for the offence under Sections 279 and 304-A IPC and sentencing him to undergo imprisonment and to pay fine.
2. The facts relevant for the purpose of this revision are as under:
It is on 30.07.2001, that an accident occurred at about 9.00 a.m. in the morning within the city limits of Raichur, near Gunj Road. The prosecution claims that on the aforesaid date and time, the revision petitioner was driving the APSRTC bus bearing registration No. AP 10-Z1650 in high speed and in a rash and negligent manner so as to endanger human life and dashed Mr. Ranganath, a cyclist, on his hind side, who sustained grievous injuries. RW.5-Veeresh shifted the injured to the hospital in an auto. On 01.08.2001 the injured succumbed to the injuries.
P.W.8, the PSI, Traffic Police Station, after receiving the information of the accident on phone, went to the Government Hospital and recorded the statement of the injured Ranganath as per Ex.P7 and on return to the Police Station registered Crime No. 84/2001 for the offence under Sections 279 and 338 IPC and sent the First Information Report Ex.P8 to the Magistrate. Thereafter, he secured P.W.2 and C.W.3-Tirupati, the witnesses and held the spot mahazar as per Ex.P1. He seized the bus and returned the damaged bicycle. He arrested the petitioner and released him on bail. He requested the R.T.O. authorities to inspect the vehicle and recorded the statement of the witnesses and received the information of death of the deceased Ranganath. Later P. W.9 held the inquest-Ex.P2 on the body of the deceased and sent the body for post-mortem examination. He seized the clothes of the deceased under the mahazar-Ex.P3 and after securing the necessary documents, completed the investigation and filed the charge sheet, against the petitioner before the Magistrate.
After the appearance of the accused before the trial Court, charges were framed for the offence under Sections 279, 304-A IPC and under Section 132 read with Section 187 of the Motor Vehicles Act. The accused pleaded not guilty. The prosecution led the evidence by examining P.Ws.1 to 9 and in their evidence got marked Exs.Pl to P8 and M.0.1. On the closure of the evidence by the prosecution, the statement of the accused was recorded under Section 313 Cr.P.C. He has denied the occurrence of the accident. He has not chosen to lead any evidence in his defence. The trial Court heard the Assistant Public Prosecutor and the counsel for the accused and convicted the accused for the offence under Sections 279 and 304-A IPC and ordered to undergo imprisonment and also to pay the fine. Aggrieved by the conviction and sentence, the petitioner approached the Session's Court in Criminal Appeal No. 3/2003 and after hearing, the appeal was partly allowed, setting aside the conviction for the offence under Section 279 IPC and confirming the conviction and sentence for the offence under Section 304-A IPC. Aggrieved by the confirmation for the offence under Section 304-A IPC, the petitioner has approached this Court, in revision.
3. I have heard Sri. Shivakumar Kalloor, learned Counsel for the petitioner and Sri. A.V. Ramakrishna, learned Additional Government Pleader.
4. The points that arise for my consideration are;
1) Whether the conviction of the petitioner for the offence under Section 304-A IPC is legal and valid?
2) Whether there are any grounds to interfere with the Judgment and Order of the Courts below?
3) What Order?
Re. Point Nos. 1 and 2:
5. The learned Counsel for the petitioner has taken up many contentions as regards the legality and validity of the conviction and confirmation by the courts below. It is his grievance that there is no satisfactory material to prove the rash or negligent act of the petitioner in driving the bus and that the courts below have erred in accepting the interested version of P.Ws.4 and 5, who claim to be the eyewitness and that there is no sufficient material on record to prove the ingredients of rash and negligent driving. It is also his contention that the deceased himself had contributed negligence in the occurrence of the accident and there is no acceptable material to prove the negligence of the petitioner. The learned Counsel has also contended that the bus has not hit the cyclist and that the injuries sustained were due to fall of the injured from the bicycle and he further submits that at the most it is a case wherein there is error of Judgment on the part of the petitioner and that the accident was not due to rash and negligent driving.
6. The learned Government Pleader submits that there is concurrent finding of the Courts below and also sufficient material to prove the rash and negligent act of the petitioner beyond reasonable doubt and hence submits to dismiss the revision.
7. The petitioner in his statement under Section 313 Cr.P.C. has denied the occurrence of the accident and states that the bus did not hit the cyclist on the date alleged. The complaint in respect of this accident was submitted by the deceased-Ranganath while he was under treatment in the Government Hospital on the date of the accident at about 10.45 a.m. The facts disclose that the accident occurred on 30.07.2001 at 9.30 a.m. and the complaint of the accident was registered by P. W.8, the PSI in Crime No. 84/2001 for the offence under Sections 279 and 338 IPC and the FIR-Ex.P8 was dispatched from the Police Station to the Magistrate by 12.30 noon. Ex.P8 was received by the Magistrate at 2.35 p.m. on the same day. The contents of Ex.P7, the complainant, were stated by the deceased while he was under treatment and he states in the complaint that while he was proceeding on the cycle, the bus bearing registration No. AP 10-Z 1650 came from the hind side driven in high speed and in rash and negligent manner and dashed him. He also states that he fell down and sustained injuries and later was lifted in an auto by its driver Sri. Shahid Afridi and was admitted to the hospital. During the treatment, the injured Ranganath succumbed to the injuries and the post-mortem was held by P.W.6 and the report has been produced at Ex.P5. The report reveals that the deceased had sustained the fracture of left clavicle in the middle, fracture of the pubic bone. The doctor has also opined that the death was due to hemorrhage and shock as a result of multiple injuries. The deceased was brought to the hospital with the history of injuries sustained in an accident. Further more, P.W.6, the doctor in his evidence states that the multiple injuries have caused the death and in the cross-examination has denied the suggestion that the injuries may occur by a fall from the bicycle.
8. That soon after the registration of the complaint-Ex.P7, P.W. 8, the PSI has gone to the scene of occurrence and prepared the spot mahazar-Ex.Pl in the presence of P.W.3 and a co-panch and the mahazar-Ex.Pl reveals that the cycle was fallen at the place of the accident in a damaged condition. It is true that the cycle is not seized by the police and though the Investigating Officer says in his evidence that the cycle was seized, the recital in Ex.Pl reveals that the cycle was returned to the father of the deceased. When the mahazar reveals that there was a damage to the cycle, the mere fact that the cycle was returned, in my opinion does not affect the case of the prosecution.
9. Now, in the context of the circumstances aforesaid, I have to look into the other evidence led by the prosecution to prove the rash and negligent driving. The fact that the petitioner was driving the vehicle is not in dispute and it is amply proved by the prosecution in the evidence of P.W.3, the Traffic Inspector, who states that the petitioner was on duty as driver of the bus in question and Ex.P4 is the certificate issued in this regard. This fact has not been disputed by the petitioner in the cross-examination of P.W.3. After the accident, the bus in question was examined by the Motor Vehicles Inspector-P.W.7 and Ex.P6 is the report, which reveals that the accident was not due to any mechanical defect. There is no cross-examination of P.W.7 and in the circumstances, the evidence of P.W.7 has to be accepted as it is. So, in the light of these circumstances and the evidence available, now I have to scrutinize the evidence of P.Ws.4 and 5, the eyewitnesses examined by the prosecution.
10. The incident as alleged has occurred while the deceased-Ranganath was proceeding on his cycle on Gunj road within the limits of Raichur city. The facts mentioned in Ex.P7 and the evidence of P.Ws.3 and 4 reveal that at the time of the accident the deceased was proceeding on his cycle ahead of P.W.5 and the bus in question came from the hind side of P.W.5, went ahead and hit the cyclist Ranganath on his back. Both P.Ws.4 and 5 consistently state in their evidence that the vehicle was in high speed and that the petitioner was driving the vehicle in a rash and negligent manner. The road at the spot of the accident is straight and the petitioner could have seen the cyclist proceeding ahead at least from a reasonable distance and could have either slowed down or could have stopped the bus. As the vehicle was not stopped, it hit the cyclist who was proceeding ahead and this fact itself leads to the only inference that he did not take the required care either by swerving the vehicle to the other side or by stopping the vehicle. The evidence of the doctor added with the contents of Ex.P7 and the evidence of P.Ws.4 and 5 lead to the only conclusion that the bus in question hit the deceased and caused the injuries. Considering the evidence of these two eyewitnesses and the other circumstances stated above, the defence of the petitioner that the bus did not hit the cyclist cannot be accepted. The driver has a duty to look at the road in the city limits and drive the vehicle in such a way that he would stop the vehicle at once even in the circumstances wherein the children come across the road abruptly and the duty is more on the part of the driver while he is proceeding within the city limits.
11. The learned Counsel for the petitioner submits that the evidence of P.Ws.4 and 5 cannot be accepted as they are the persons interested and are the residents of the locality of the deceased. It is true that the witnesses are from the locality of the deceased, but that itself is not a ground to discard their evidence as it is corroborated by the other circumstances on record.
12. The learned Counsel for the petitioner has placed reliance on the decision of the Apex Court reported in Syad Akbar v. State of Karnataka : 1979CriLJ1374 . The accused in the said case hit a four year child which was suddenly noticed by the driver while the child was attempting to cross the road wherein the road was 12ft. wide with deep ditches on both sides. While the driver has swerved the bus to the extreme right to dodge the child but it was hit by the bus and the child died on the spot. The facts are altogether different from the facts on hand and the principle laid-down by the Apex Court is not applicable to the facts of this case. It is nowhere case of the petitioner that the deceased abruptly came across the road or that he tried to avoid the accident. The petitioner has taken a contention that the bus did not hit the cyclist and there is no suggestion to P.Ws.4 and 5 about an error of the Judgment. He has also placed reliance on the decision reported in Mahadeo Harilokre v. The State of Maharashtra : 1972CriLJ49 , wherein the Hon'ble Supreme Court considering the facts, that a pedestrian suddenly crosses the road without taking note of the approaching bus. It was held by the Hon'ble Apex Court that there was no rash and negligent act on the part of the driver. These facts are also not similar to the facts on hand and therefore the principles cannot be applied.
13. The evidence of P.W. 8 reveals that there was a circle at a distance of 500 ft. from the spot of the accident. The counsel contended that when the bus passed through the circle and was proceeding on the road, there is no possibility of the driver going fast after passing through the circle. On the basis of this possibility, he submits that the vehicle was not in speed and therefore, the petitioner cannot be attributed for a rash and negligent act. He also relied upon the decision of this Court reported in K. Srinivas v. State of Karnataka 2002 Cri.L.J. 3865. The facts reveal that the accident took place at a distance of about 50 ft. before the circle. Considering the circumstances in the said case, it was held that the speed of the bus cannot be sole determinative factor to attribute the rashness or negligence and it further held that the conviction solely on the basis of oral evidence which was totally contradictory with documentary evidence is liable to be set aside. The principles laid-down in this decision as well cannot be applied as there are no such contradictions in the evidence and furthermore the circle through which the vehicle passed before the accident was at a distance of about 500 ft. from the spot of the accident and therefore, the petitioner cannot take the benefit of the decision cited supra.
14. The learned Counsel for the petitioner also contended that the spot of the accident is at a distance of 10 ft. from the edge of the tar road and that it was not proper on the part of the deceased to ride his cycle in the midst of the road leaving about 10 ft. on his left side and therefore, he claims that there is some negligence contributed by the deceased by not taking his cycle to the extreme left side of the road. As could be seen from the provisions of the Motor Vehicles Act, Rules and the Regulations, nowhere it has been provided that a cyclist has to be on the left side of the road. The provisions do not apply to a cyclist or a pedestrian. The perusal of the cross-examination of P.Ws.4 and 5 does not reveal any such suggestion about the cyclist abruptly coming towards the middle portion of the tar road and in addition, the petitioner who was driving the bus could have easily noticed the persons proceeding ahead on the cycle and would have given horn to caution the cyclist and when the road at the spot was 20 ft. wide, the driver could have swerved the bus to the right side or at least explained the problems he had in his statement under Section 313 Cr.P.C, he has not said anything except stating that the bus did not hit the cyclist. There could have been at least a suggestion to the witnesses in this regard. Considering the totality of the circumstances and the fact that the cyclist was proceeding ahead and the bus in question hit the deceased from his hind side, I do not think that nothing more is necessary for the prosecution to establish the rash and negligent act on the part of the petitioner.
15. At this stage, I feel it is just and proper to make an observation that in the motor vehicle accident cases, the Investigating Officers have a duty to collect and incorporate certain particulars as regards the circumstances existing at the spot of the accident. This is a case wherein the vehicle hit the cyclist from the hind side and it is not necessary to have the details of the scene of occurrence. This Court in many cases has come across the spot mahazars prepared by the Police Officers wherein details are not furnished. It would be of much assistance to the parties and the Courts, if the Investigating Officers prepare the spot mahazar with a sketch of the scene of occurrence containing the following particulars:
a) The details of the spot of the accident and a mention of the place.
b) The blood stains if any at the spot.
c) Blood stains if any on the parts of the vehicle/s i.e., tyres [front and hind], bumpers or any other parts.
d) The distance between the spot of accident and the edges of the road.
e) Whether the road is straight or a curve.
f) Whether the road at the spot is slanting either upwards or downwards.
g) The passages on both sides of the road including the width of the tar road and the passages.
h) The position and condition of the vehicle/s at the scene of occurrence with the details like the distance, width, etc. from the spot.
i) In cases where the death has occurred, the place where the dead body was fallen.
j) The presence of the brake mark scratches at the spot of the accident with their measurement,
k) Any other particulars, which are helpful to assist and to ascertain the manner of the accident.
As stated the requirements enumerated supra are not essential for the case on hand but would certainly help the Courts to effectively assess the evidence led in other cases to come to a right conclusion. If for any reason these particulars are not made available by the Investigating Agency, at least the prosecution through the evidence of the witnesses bring on record the circumstances stated supra for appreciation of the evidence.
16. Now as regards the quantum of sentence, it is necessary to note that the Courts below have ordered the sentence of imprisonment for six months and to pay the fine. The counsel for the petitioner submitted to extend the benefit and release the petitioner on probation. On this aspect of the matter, he placed reliance on the decision of the High Court of Punjab and Haryana, reported in Chuni Lal v. State of Haryana 2006 Cri. L.J. 1512. The High Court considering that it was a solitary offence directed the release of the accused on probation for one year instead of subjecting him to undergo actual sentence. As could be seen from the decisions of the Apex Court and the fact that causing death in an accident, is now a social crime, I do not think it proper to extend the benefit of provisions of the Probation of Offenders Act.
17. The learned Counsel also requested for reducing the sentence by awarding fine only and in this context he placed reliance on an unreported Judgment of this Court in John v. The State of Karnataka Crl. R.P. No. 959/2004, dated 9th October, 2006, dated 09.10.2006. As could be seen from the facts, the conviction for the offence under Section 304-A IPC was upheld, the driver was awarded the sentence of fine of Rs. 5,000-00 for the offence under Section 304-A IPC and the sentence of imprisonment was set aside. Taking into consideration that a boy aged 16 years lost his life due to the rash and negligent act and more particularly by hitting him from the hind side and also keeping in view the recent decisions of the Apex Court, I do not think that it is proper to reduce the sentence, as now the incidents of rash and negligent driving have become a social crime. The Courts below have already awarded minimum sentence and therefore, I do not find any grounds even to interfere in the quantum of sentence awarded.
18. So, considering the evidence led and looking to the concurrent findings arrived at by both the Courts below, I am of the opinion that there is no such illegality or perversity in the Orders passed and the petitioner has not made out any such grounds to warrant the interference.
19. Hence I answer Point No. 1 in affirmative and Point No. 2 in negative and proceed to pass the following: