Topic: State of Karnataka v. Mohd. Ismail

State of Karnataka v. Mohd. Ismail
Karnataka High Court - Equivalent citations: 1988 (3) KarLJ 141 - Bench: K Ramachandriah, R Desai - Date of Judgment: 27 June, 1988

JUDGMENT R.G. Desai, J.
1. The respondent was the accused in C.C. No. 423/3/83 on the file of the J.M.F.C., Chincholi. He was tried for the offence punishable under S. 304A, I.P.C. on the allegation that, on 24-7-1983 are about 4.30 p.m., he was riding motorcycle No. APB 1497 on Chincholi-Chandrapur road in front of the junior college at Chandapur in a rash and negligent manner and dashed against one Narayanrao, aged about 85 years, and caused his death.

2. As the accused denied the commission of the offence, P.Ws. 1 to 6 were examined and Exhs. P-1 to 4 and M.Os. 1 to 9 were produced on behalf of the prosecution. The defence of the accused was one of total denial. Appreciating the evidence, the learned Magistrate held that the prosecution had failed to bring home the guilt to the accused for the offence punishable under S. 304A, I.P.C. and acquitted him. Hence, this appeal by the State after obtaining leave.

3. According to the prosecution, when deceased Narayanarao was returning home after visiting the temple situated near the Junior College at Chandrapur along with his grand-daughter Sunitha, P.W. 2, when they were walking on the left side of the road from north to south, the motorcycle ridden by the accused with another person as pillion rider went from behind him and dashed against him. Due to that, Narayanarao fell down, sustained head injuries and died on the spot. According to the prosecution, the motorcycle was being ridden at high speed then and the accused was not sounding the horn.

4. The learned High Court Government Pleader took us through the evidence on record and urged that the evidence of P.Ws. 1 and 2 is natural, probable and believable and it proves beyond all reasonable doubt that it was due to the rash and negligent act of the accused in riding the motorcycle that deceased Narayanrao died. According to him, the learned Magistrate was not justified in disbelieving the evidence of P.W. 1, holding that he was a chance witness and the evidence of P.W. 2 on the ground that she was interested.

5. Mr. Farooq, learned Counsel for the respondent-accused, on the hand, urged that the learned trial Judge has disbelieved the evidence of P.Ws. 1 and 2, and there are no compelling grounds to disagree with him, especially in this appeal against acquittal.

6. The following facts are no longer in dispute before us :

i) That the accused was riding motorcycle No. APB 1497 from north to south along the Chincholi-Chandapur road at the time of the accident with a pillion rider.

ii) That deceased Narayanrao met with an accident on 24-7-1983 at about 4.30 p.m. on Chincholi-Chandapur road near the Junior College at Chandapur and died due to the injuries sustained, as stated by P.Ws. 1 and 2.

iii) That the accident was not due to any mechanical defect in the said motor-cycle, as stated by P.W. 4.

iv) That the tar road at the place of accident was about 12' wide and there was mud road of 6' wide on the either side of the tar road near the place of accident, as stated by P.W. 1.

But, the question is whether the accident occurred due to the rashness and negligence of the accused in riding the motor-cycle. In order to prove the same, the prosecution relied on the evidence of P.Ws. 1 and 2.

7. Gurulingappa, P.W. 1, was the Police Constable attached to the Chincholi Police Station then he was residing in the police quarters at Chandapur, which is about 3 kilometres away from Chincholi. According to P.W. 1, he had been to Chandapur on that day for serving summons and while he was returning to Chincholi, near Junior College he witnessed the accident.

8. P.W. 2, Sunitha, is the grand-daughter of deceased Narayanrao who was aged about 85 years then. According to her, she and her grandfather had been to the temple situated near the Junior College at Chandapur then, and after visiting the temple they returning home along the left side of the road towards Chandapur and she was holding the left hand of her grandfather then. Both the P.Ws. 1 and 2 have stated that the motorcycle came from behind the deceased Narayanrao at high speed, without sounding horn and dashed against Narayanrao and due to that Narayanrao fell down, sustained head injuries and died on the spot.

9. The learned Magistrate has disbelieved P.W. 1 on ground that he was a chance witness and he has not produced the duplicate of the summons for serving which, he had gone to Chandapur. P.W. 1 went to the Police Station immediately after the accident and filed the complaint as per Exh. P-1 at about 4.45 p.m. on the same day. This probabilises that he must have witnessed the accident as stated by him, especially as the contents of the complaint, Exh. P-1, corroborate his evidence. Merely because he is the colleague of the son of the deceased, his evidence cannot be disbelieved on the ground that she is interested in the prosecution, being the grand-daughter of the deceased, his evidence cannot be disbelieved. So also the evidence of P.W. 2 cannot be disbelieved on the ground that she is interested in the prosecution, being the grand-daughter of the deceased. Hence, the reasons given by the learned Magistrate for disbelieving P.Ws. 1 and 2 are not valid reasons. There is nothing elicited in cross-examination of P.Ws. 1 and 2 which would cast doubt on their testimony.

10. Regard being had to the circumstances of the case, we are satisfied that the evidence of P.Ws. 1 and 2 substantially represents the truth we accept their evidence, especially as the motorcycle ridden by the accused went from behind and knocked down deceased Narayanarao, who was proceeding along the extreme left side of the road, at the time of the accident. The road was about 24' wide. So, there was enough space on the right side of the accused and he should have easily seen the deceased going ahead of him on the road as it was broad daylight and he could have avoided the accident by swerving his motorcycle to the right or by stopping it as a prudent driver. He could have at least sounded the horn and warned the deceased. That also he has not done. There was a college near the place of accident. So, the accused could have driven the motorcycle slowly, sounding horn and he should have also swerved the motorcycle towards the right and avoided the accident. Under the circumstances, we have no hesitation in holding that the deceased died due to the rash and negligent driving of the motorcycle by the accused. Hence, we hold him guilty under S. 304A, I.P.C. This brings us to the question of sentence.

11. The learned High Court Government Pleader, relying upon the decision of the Supreme Court in State of Karnataka v. Krishna ILR (1987) Kant 1894, urged that the respondent-accused may be sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/-. In the said case, the accused pleaded guilty to the charge for offences punishable under S. 279, 337 and 304A, I.P.C. and S. 87(a) and 87(b) of the Motor Vehicles Act and he was convicted and sentenced to pay a total fine of Rs. 345/-. This Court dismissed the State appeal for enhancement of the said sentence. In Appeal, the Supreme Court was pleased to observe thus :

"It is not as if the respondent had been charged or convicted for a grave offence punishable with death or imprisonment for life and his fate had remained in suspense for a long time and as a consequence thereof, he had undergone mental agony and torment for a long period of time. Here was a case where the respondent had not only driven his bus in a reckless manner and caused the death of one person and injures to another, but he had also attempted to escape prosecution by failing to report the accident to police authorities. Considerations of undue sympathy in such cases will not only lead to miscarriage of justice but will also undermine the confidence of the public in the efficacy of the criminal judicial system. It need by hardly pointed out that the imposition of a sentence of fine of Rs. 250/- on the driver of a motor vehicle for an offence under S. 304, I.P.C. and that too without any extenuating or mitigating circumstance is bound to shock the conscience of any one and will unmistakably leave the impression that the trial was a mockery of justice."

The accused in that case was ultimately sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/- in default to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/- in default to undergo rigorous imprisonment for two months.

12. On the other hand, Mr. Farooq relied upon the following decisions of the Supreme Court :

1) Balachandra Waman Pathe v. State of Maharashtra 1968 ACJ, 38.

2) Jagadish Chander v. State of Delhi .

3) Nand Ballabh Panth v. State (Union Territory of Delhi) .

and urged that, regard being had to the circumstances of this case, sentence of fine will only meet the ends of justice.

13. In Balachandra Waman Pathe's case referred to above, he was tried for offences punishable under sections 304A and 337, I.P.C. for causing death of a girl, Kunda, while she was crossing the road through pedestrian crossing and for causing injuries to another girl, Vidya. He was convicted under both counts and was sentenced to pay a fine of Rs. 2,000/- in default to suffer six months rigorous imprisonment under S. 304A, I.P.C. and he was sentenced to pay a fine of Rs. 200/- in default to suffer rigorous imprisonment for two months under S. 337, I.P.C. The High Court enhanced the sentence to six months simple imprisonment and a fine of Rs. 200/-. In appeal, while considering the question of sentence, the Supreme Court was pleased to observe thus :

"The trial Court thought that the ends of justice would be met if the appellant was made to pay a heavy fine. The High Court did not give any reason for coming to the conclusion that a sentence of imprisonment is imperative in this case. The High Court appears to have even influenced by the fact that a human life had been lost. If that is so, it had clearly lost sight of the fact that causing death is a necessary ingredient of an offence under S. 304A, I.P.C. Yet the legislature in its wisdom has left it to the discretion of the Courts to punish an offence under that Section either with imprisonment or with fine or both. From that it is clear that the legislature did not consider that for and offence under S. 304A, I.P.C., a term of imprisonment is a must. On the other hand, it did visualise the possibility of an offence falling under that provision being penalised by mere fine. It is highly regrettable that the incident in question resulted in the death of a young person - but the High Court should not have allowed itself to be prejudiced by that circumstance." Ultimately, it was held, for the offence committed by the appellant, in that case, it cannot be said that the sentence imposed by the trial Magistrate is so inadequate as to justify interference by the High court, and the sentence passed by the Magistrate was restored.

14. In Jagdish Chandra's case (Sl. No. 2 above) (1973 Cri LJ) (SC), the drivers of the truck and the autorikshaw were both to be blamed for the collision that took place between them before autorikshaw dashed against a child and the proceedings against the driver of the autorikshaw went on for eight years. The Supreme Court reduced the sentence of imprisonment for six months to a period of three weeks of imprisonment already undergone.

15. In Nand Ballabh Panth's case (Sl. No. 3 above) : (1977 Cri LJ 549) (SC), the sentence of rigorous imprisonment for two months and a fine of Rs. 500/- imposed on the accused under S. 304A, I.P.C. was reduced to imprisonment for one month and a fine of Rs. 1,000/-, regard being had to the special facts and circumstances of that case.

16. In this case, the accused was aged about 28 years at the time of the accident. No previous conviction is alleged against him. The deceased was aged about 85 years and slight force would have been sufficient to knock him down. We are conviction him after five years, reversing the order of acquittal passed by the trial Court. Regard being had to the circumstances of this case, we think a sentence of rigorous imprisonment for one month and a fine of Rs. 1,000/- in default to undergo further rigorous imprisonment for two months, would suffice.

17. In the result, appeal is allowed and the order of acquittal, passed by the trial Court, is set aside. The respondent-accused is convicted under S. 304A, I.P.C. and he is sentenced to undergo rigorous imprisonment for one month and to pay a fine of Rs. 1,000/- and in default, to undergo further rigorous imprisonment for two months. The trial Court is directed to issue warrant for the arrest of the respondent-accused and commit him to jail for serving out the said sentence.

18. Appeal allowed