Judgment:
Chidananda Ulial, J.
1. This appeal is directed against the judgment dated 23.8.1991 passed by the Additional Civil Judge and CJM, Mandya, in CO No. 92/ 89 acquitting the respondent/accused. The State has preferred the instant appeal with the leave as against the acquittal.
2. The brief facts of the case are as follows:
That the respondent/accused being the driver of matador van bearing registration No. CAA 5121 drove the same on M.C. Road near Thobinakere village in a high speed in a rash and negligent manner so as to endanger the human lives and as a result of the same he dashed the matador van to a road side tree caused simple injuries to grievous injuries to many passengers who had traveled in the said matador van and further caused the death of one Marigowda, also a passenger in the matador van, that immediately after the accident, the respondent/accused instead of giving first aid to the injured persons, sped away from the place of accident. That the jurisdictional police had registered a case against the respondent/ accused in CC No. 92/89 and after investigation filed a charge sheet as against the respondent/accused for the offence punishable under Sections 279, 337, 338 and 304-A of IPC and under Section 89(a)(b) and Section 118(a) of IMV Act. The learned Additional Civil Judge and CJM Mandya, who had absolved the respondent/accused of all the charges and further acquitted him on the ground that the prosecution had failed to establish identity of the driver and also failed to prove the rash and negligent manner of driving of the matador van by the respondent/accused. Therefore the instant appeal is before this court.
The prosecution had examined in all 20 witnesses marked as P.W. 1 to P.W. 20 and 18 documents marked as Ex.P. 1 to Ex.P. 18.
3. I heard the learned Government Pleader, Sri B.H. Satish, appearing for the appellant/State and the Learned Counsel, Sri S.B. Mukkannappa, appearing for the respondent/accused. I have also perused the records.
4. The learned Government Pleader while urging the grounds in the appeal memorandum submitted that the impugned judgment is contrary to law, facts and probabilities of the case and further not based on the evidence on record. He further argued that the learned trial court Judge had held in the impugned judgment that the identity of the accused was not established inspite of the fact that P.Ws. 1, 2, 3 and 5 have deposed in clear terms that the vehicle in question was driven by the respondent/accused. He had also drawn my attention, in this context to the observation made in para 10 of the impugned judgment by the learned trial court judge. He had also argued that the observation of the learned trial court judge that non-examination of the cleaner of the matador was fatal to the case of the prosecution was not just and proper, for according to him, it was nobody's case that it was yet another cleaner who was driving the matador van at the relevant point of time; let apart, he had also pointed out the evidence of P.W. 4, wherein P.W. 4 dearly deposed that the vehicle was driven in a rash and negligent manner, that added to it, P.W. 5 had also deposed that respondent/accused had ignored the said suggestion of P.W. 5, he drew the vehicle in a rash and negligent manner resulting in the accident in question by hitting the road side tree. He had also cited before me a decision reported in 1995 SCC (Cri) 675 on the point that High Court has full powers to review the evidence on record and arrive at independent conclusion. Therefore, he prayed that the impugned judgment passed by the learned trial court judge is not sustainable and the same is liable to be set aside. He further prayed that the appeal be allowed and the respondent/accused be convicted and sentenced in accordance with law.
5. The Learned Counsel appearing for the respondent/accused while supporting the impugned judgment passed by the learned trial court judge, submitted that mere driving the vehicle in a high speed could not be termed as negligent manner of driving, for according tohim, the speed is relative term with reference to place and attendant circumstances. Pointing out that the cleaner who was cited as one of the witnesses by the prosecution had since not chosen to be examined in support of the prosecution, there is genuine doubt as to who had driven the vehicle at the relevant point of time. The Learned Counsel also submitted that the prosecution had miserably failed to prove the guilt of the respondent/accused.
He had also cited a decision of this court reported in 1989(3) KLJ 302 on the point that unless rashness and negligence attributed to the driven of the vehicle was proved, there cannot be conviction as against a driver.
6. Now the points for my consideration are as follows:
i) Whether the prosecution had identified the respondent/ accused as a driver who was driving the vehicle at the relevant point of time and that he had caused the accident resulting in injuries to several persons and the death of one Marigowda ?
ii) Whether the prosecution had proved the rash and negligent manner of driving of the matador van in question by the respondent/accused and his guilt under Sections 279, 337, 338 and 304A of IPC and further under Section 89(a) and (b) and 118(a) of M.V. Act, 1939.
Regarding point No. i) The jurisdictional police had filed the charge sheet against the respondent/accused for the offences under Sections 279, 337, 338 and 304A of IPC and further under Section 89(a)(b) and Section 118(a) of IMV Act 1939. Before proceeding further, I feel it is necessary to quote the above provisions of law under which the respondent/accused was charged:
Section 279 : Rash driving or riding on a public way: Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Section 337 : Causing hurt by act endangering life or personal safety of others: Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
Section 338 : Causing grievous hurt by act endangering life or personal safety of others: Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
Section 304A :Causing death by negligence: Whoever causes the death of any person by doing any rash or negligence act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both.
Sections 89(a)(b) and 118A of the IMV Act, 1939 reads as follows:
Section 89(a) :take all reasonable steps to secure medical attention for the injured person, and if necessary, convey him to the nearest hospital, unless the injured person or his guardian; in case he is a minor, desire otherwise;
(b) give on demand by a police officer any information required by him, or, if no police officer is present, report the circumstances of the occurrence at the nearest police station as soon as possible, and in any case within twenty-four hours of the occurrence.
Section 118A : Punishment for offences relating to accident: Whoever fails to comply with the provisions of clause (c) of sub-section (1) of Section 87 or of Section 88 or Section 89 shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both, or if having been previously convicted of an offence under this section, with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.'
7. The prosecution had in all examined 20 witnesses. Out of all these 20 witnesses, P.Ws. 1, 2, 3 and 5 in their evidence before the trial court had identified the respondent accused. They are all passengers who were traveling in the matador van on the fateful day. It appears to me that the learned trial court judge was influenced by the non-identification of the driver by some of the witnesses. Here we should not forget that almost all persons who were traveling in the matador van were commuters and they were busy in their own way and that being the situation, one cannot expect to identify the driver of the vehicle by all of them, more so, when they were more to do with the person who collected fare from them. It is also in the evidence that there was some other person sitting in the rear side of the matador van to collect the fare from the commuters. We should remember here that the driver of the vehicle was stated to have sped away from the scene immediately after the accident. If that is so, it is quite natural that some have seen the driver and some have not. The learned trial court judge had observed in para 10 of the impugned judgment that some witnesses have identified the respondent/accused as the driver, whereas some have not identified, as if, the respondent/accused had to be identified by one and all. I do not think that this is what is expected of the witnesses who appeared before the trial court. It is to be observed here that P.Ws.1, 2, 3 and 5 were all causal passengers traveling in the matador van and they had no axe to grind as against the respondent/ accused to depose that it is he who had driven the matador van and caused the accident by hitting a road side tree. The learned trial court judge further observed that non-examination of the cleaner who was cited as one of the witnesses by the prosecution was having a bearing as to the identification of the driver. In my considered view in the facts and circumstances of the case, when four witnesses i.e. P.Ws. 1, 2, 3 and 5 in unambiguous terms had deposed before the trial court that the respondent/accused had driven the matadorvan at the relevant point of time, it was clinching to hold that the respondent/accused was the driver who had driven the matador van and none else. It is relevant here to mention that even in 313 statement recorded by the trial court, the respondent/accused when asked whether he had to say anything more about the accident, he had stated there by mean that he had nothing to say more about, let apart in the said 313 statement he had never stated that he was not the person who had driven the vehicle in question as charged by the prosecution. Therefore, I hold that the prosecution had proved beyond doubt that the respondent/accused was driving the vehicle in question at the time of accident. Regarding Point No. (ii): The P.Ws. 1, 2, 3 and 5 had not only identified the respondent/accused as the driver who caused the accident but they had also deposed before the trial court that he had driven the vehicle at very high speed. P.W. 5 further deposed that having found the vehicle driven by the respondent/accused at a high speed, he had also asked him to go slow and that despite such a caution by him, the respondent/ accused had ignored his caution and driven the vehicle at a high speed resulting in the accident. Even P.W. 4 though not identified the respondent/accused had deposed before the trial court in a natural way that the vehicle in question was driven at a very high speed. The very fact that the matador van had hit a road side tree and caused the simple to grievous injuries for good number of passengers traveling in the matador van and further caused the death of one Marigowda on the spot spell out loudly as to the reckless manner in which the matador was driven by the respondent/accused. Further the fact that the respondent/accused immediately after causing the accident had ran away from the place of accident had confirmed the gifts on the part of the respondent/accused that he had driven the matador van in a rash and negligent manner and caused the accident. With these material evidence on record one can say with certainty that the respondent/accused was guilty of rash and negligent manner of driving within the meaning of Sections 279 and was guilty of the offences under Sections 279, 337, 338 and 304A of IPC.
In view of the fact that the respondent/accused had caused the accident in question, under Section 89(a)(b) of IMV Act, 1939, the respondent/accused was duty bound to take reasonable steps to secure medical attendance for the injured persons if necessary toconvey to the nearest hospital and further give information to the police required by them if present and if they are not present, report to the nearest police station as soon as possible and in any case within 24 hours of the occurrence of the accident. In the instant case, it is in the evidence that the respondent/accused had in irresponsible way ran away from the scene of accident, leaving the injured commuters to their destiny, obviously the respondent/accused did neither and therefore he is guilty of other offences charged against him under Section 89(a)(b) and 118A of IMV Act, 1939. Hence, I hold that the respondent/accused is equally guilty of the other offences charged against him under Sections 89(a)(b) and 118A of IMV Act, 1939.
While reversing the impugned judgment of the learned Magistrate, I am in conscious that the court should be slow in recording conviction as against the acquittal order. But when the impugned judgment is totally disregard of the material evidence on record and unmindful of serious offences the respondent/accused had committed, this court is but to record the conviction by reversing the impugned judgment.
10. Hence, I answer both points (i) and (ii) in the affirmative: Under the above said facts and circumstances of the case, the decision cited by the Learned Counsel for the respondent/accused in 1989(3) KLJ 302 is not having any application to the instant case in hand, I further add.
Now I come to the point of sentence. Here one should bear in mind that the respondent/accused was driving the matador van to transport the innocent commuters. He may be one among the innumerable numbers of drivers driving the matador vans plying for hire. The respondent/accused is supposed to take every care to drive the vehicle safely not to endanger human life and public property. It is in the evidence that not only the respondent/accused had driven the matador van in rash and negligent manner, but it is also in the evidence that despite the caution of the respondent/ accused by the passenger not to drive the matador van rashly and negligently, he did not heed to their advise and drive the vehicle in question in a rash and negligent manner and in the process he hit the road side tree and caused the injuries to some of the passengers and further caused for the death of one Marigowda. Further more, immediately after the accident he sped away from the scene of accident.
11. In the said circumstances, I feel that the respondent/accused cannot be leniently be dealt with and my considered view is that it is just and proper for this court to convict and sentence him for the above said offences he had committed.
Accordingly, I sentence him for simple imprisonment for three months and further to pay a fine of Rs.2,000/- and in default of payment of the said fine he shall undergo further simple imprisonment for one month for the offence committed by him under Sections 279, 337, 338 and 304A of IPC. I further sentence him for simple imprisonment for two months and further to pay a fine of Rs.500/-and in default to under-go simple imprisonment for a period of fifteen days for the offence under Section 89(a)(b) and 118A of IMV Act, 1939.
The substantial sentence as above to run concurrently.
The appeal therefore succeeds and the same stands allowed in the above terms.