KESHAVAMURTHY Vs. STATE

JUDGEMENT

(1.) ON 16-7-1996 at about 1. 00 a. m. , Ambassador car KA-04/7515, proceeding from Bangalore towards Shimoga, being driven by the petitioner-accused, hit a road side tree near Kerkodi Halli village, resulting in the death of two persons travelling in the car, in addition to causing hurt to one another occupant and grievous hurt to another occupant of the car. In that regard, the petitioner came to be prosecuted at CC. 651/96, on the file of the learned J. M. F. C. , Arsikere, for offences punishable under Ss. 279, 337, 338 and 304-A IPC. In course of trial, one of the injured was examined as P. W. 1, to witness to the scene of offence mahazar were examined as P. Ws. 2 and 3, and Investigating Officer was examined as P. W. 4, with the P. M. report, inquest report, wound certificates, IMV report, spot mahazar, another P. M. report, rough sketch and complaint, having been got marked as Ex. P1 to P10. On appreciation of this evidence on record, the learned Magistrate convicted the petitioner of all the said offences, viz. , Sections 279,337, 338 and 304-A IPC, and quite wrongly passed omni-bus sentence in respect of all the four offences as S. I. for six months. Petitioner's appeal before the learned Sessions Judge at Crl. A. 20/98, on the file of the learned Additional Sessions Judge, Hassan, came to be dismissed. Though the mistake that the learned Magistrate had committed in passing such omni-bus sentence for several offences together, was noticed by the learned Sessions Judge, he did not proceed to correct it. The petitioner is now before this Court under S. 397 Cr. P. C.

(2.) AMONG the four prosecution witnesses, only witness to speak to the manner in which the accident occurred is P. W. 1 Thippaiah. One of the occupants of the car having initially stated that the petitioner was driving the car in speed, and that, the accident occurred due to rashness and negligence of the petitioner, he states in cross-examination that, prior to the accident he was asleep, and that, only on hearing of the sound of impact that he woke up. That would virtually rule out his evidence as regards the manner in which the accident occurred. The other three witnesses are not examined as eye witnesses. The position then would be that there would be no one to speak to the manner in which the accident occurred. Ms. Anjana Sundar, the learned counsel for the petitioner-accused, would therefore submit that, there could be no presumption of an accident having occurred due to rashness and negligence of the driver, and that, that is an aspect that has to be proved by the prosecution beyond reasonable doubt by leading evidence in that regard. This position cannot be disputed. There are however certain circumstances which cannot be lost sight of. Even after waking up after hearing the sound of impact, P. W. 1 does not speak to the presence of any other vehicles in the area concerned. The spot mahazar at Ex. P6 would show that the width of the cement and tar portion of the road at the place of the occurrence was 19 ft. with 6ft. Kacha road on either side. It could therefore be seen that, at about 1. 00 a. m. in the night, on a road of a total width of 19ft. with 6ft. kacha road on either side, with no other vehicles in the area, the car hits the road side tree. As the Supreme Court points out in Mohammed Aynuddin @ Miyam v. State of Andhra Pradesh (2000 (3) Crimes 119 (2000 Cri LJ 3508 (SC)), an accident of such a nature would prima facie show that it cannot be accounted other than the negligence of the driver of the vehicle may create a presumption, and in such a case, the driver has to explain how the accident was for a reason other than his negligence. This is what the Supreme Court states in paragraph-6 of the judgment :-

(3.) FROM the above discussion, it could be seen that but for the defective examination of the petitioner-accused under S. 313 Cr. P. C. , the circumstances in which the accident occurred could have been taken as prima facie showing that it could not be accounted to anything other than the negligence of the driver. But, to rebut that presumption, it was necessary for the learned Magistrate to afford an opportunity to the accused-driver to explain as to how the accident occurred without the negligence on his part. That occasion would arise by correct recording of the examination of the accused under S. 313 Cr. P. C. Not only that the learned Magistrate has not attended to that aspect correctly, but has even omitted to draw the attention of the petitioner-accused to a particular circumstance appearing in the evidence against the petitioner accused, viz. Motor Vehicle Inspector's report, thereby depriving the petitioner-accused of an opportunity to personally explain the said circumstance appearing against him. The inevitable course in a situation like this one is the one adopted by the Division Bench of this Court in the above said decision in 1991 Criminal Law Journal 2632, viz. , setting aside the conviction and sentence as imposed by the learned Magistrate and as affirmed by the learned Sessions Judge, and to remit the matter to the learned Sessions judge to re-examine the petitioner-accused afresh under S. 313 Cr. P. C. , and to proceed in accordance with law to conclude the trial and to pronounce the Judgment. Conviction of the petitioner of offences punishable under Ss. 279, 337, 338 and 304-A IPC and the sentence as imposed by the learned Magistrate and as affirmed by the learned Sessions Judge, are set aside. The matter is remitted to the learned Magistrate to re-examine the petitioner-accused afresh under S. 313 Cr. P. C. , and thereafter to proceed in accordance with law, to conclude the trial and pronounce its judgment. While pronouncing the judgment, it would be necessary to caution that whatever has been stated in this order with regard to merits, shall not influence the learned Trial Judge. Petition disposed of accordingly. Order accordingly.