IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY BETWEEN:
The State by CRIMINAL APPEAL No.220 OF 2010 Belthangady Police.
(By Sri. Nasrulla Khan, HCGP) AND:
Siddiq S/o Abubakkar, Aged 27 years, R/o. Halasinangady house, Charmady Village, Belthangady Taluk.
(By Sri. Rakshith Kumar, Advocate) ... Appellant ... Respondent This Criminal Appeal is filed Under Section 378(1) & (3) of Cr.P.C praying to grant leave to file an appeal against the Judgment and Order dated:26.11.2009 passed by the C.J. (JR.DN.) & JMFC. Belthangady. D.K., in C.C.No.478/2006- acquitting the respondent/accused for the offence Punishable under Section 279, 304A of IPC. The appellant/State prays that the aforesaid order may be set aside.
This Appeal coming on for Hearing, this day, the Court delivered the following:
JUDGMENT The State has preferred this appeal challenging the judgment of acquittal passed by the Civil Judge (Jr.Dn.) and JMFC., Belthangady, in Criminal Case No.478/2006 dated 26.11.2009, acquitting the present respondent for the offences punishable under Sections 279 and 304A of Indian Penal Code (for the sake of brevity henceforth hereinafter referred to as “IPC” for short).
2. In response to the notice, the respondent is being represented by his counsel. Lower Court Records were called for and the same are placed before this Court.
3. Heard both side. Perused the materials placed before this Court including the impugned judgment, memorandum of appeal and the lower Court Records.
4. Summary of the case of the prosecution is that on 21.05.2006 at about 9.45 am., accused being the driver of the mini lorry bearing registration No.KA18-8748 drove the said vehicle on Kadur-Bantwala road in a high speed and in a rash and negligent manner, so as to endanger human life and dashed to an autorickshaw bearing registration No.KA21-7981 which was coming from the opposite side, thereby causing the accident, in which one of the inmates of the autorickshaw by name Sri.Prasad sustained injuries and succumbed to it while under treatment in a hospital at Mangaluru.
5. The accused who was charged for the offences punishable under Section 279 and 304A of IPC, since pleaded not guilty, to prove the charges leveled against him, prosecution got examined seven witness from PWs.1 to 7 and got marked the documents from Exs.P1 to P9. Neither any witness was examined from the accused side nor any documents were marked as exhibits.
6. It is the argument of the learned High Court Government Pleader that PWs.1 to 3 who were the eye witnesses to the incident have clearly and categorically stated that the accident in question was due to rash and negligent driving of the driver of the mini lorry. However, without appreciating their evidence in its proper perspective, the trial Court supplying its own reasoning has erroneously acquitted the accused from the alleged offences.
7. Learned counsel for the accused in his argument submitted that even though the accident in question and the death of Prakash due to the said accident are not in dispute, but, the evidence of prosecution witnesses are not sufficient to prove beyond reasonable doubt that there was rash and negligent driving of the mini lorry by the accused.
8. It is also the argument of the learned counsel that evidence of PW2 who claims himself to be the eye witness is not trustworthy. It is the specific case of the accused that the deceased was sitting on a rod fixed on the right side of the autorickshaw, as such, himself has fell down, when the autorickshaw took a curve in order to avoid a pit on the road. However, the mini lorry and its driver have been falsely implicated in the act. Act.
9. PWs.1, 2 and 3 claims themselves to be the eye witnesses to the accident in question. Among these witnesses PW1 has stated that he was the driver of the autorickshaw bearing registration No.KA21-7981 to which autorickshaw, the mini lorry being driven by the accused having come in a high speed and dashed causing an accident. The said witness has also stated that he was very slow in driving the autorickshaw on that day. However, the mini lorry coming from the opposite side, came in a rash manner and dashed against the autorickshaw. Further, he stated that due to it, the right side of the mini lorry caused damages to right side of the autorickshaw and the passenger Prakash who was sitting on the right side of the autorickshaw sustained injuries. Though the injured was shifted to the hospital and got the medical treatment however, he succumbed to the injuries on the same day in Mangala Hospital at Mangaluru. He has specifically stated that the over speed and negligence on the part of the driver of the mini lorry, who is none else than the accused, is the cause for the accident. The denial suggestion made to him in his cross examination has not been admitted as true by him.
10. PW2 claiming himself to be the driver of another autorickshaw has stated that on the date of accident, the alleged offending vehicle over took his autorickshaw which he was driving on the very same road and after proceeding further, has caused the accident in question. Even this witness also stated that the accident was due to rash and negligent driving of the driver of the mini lorry.
11. PW3 claiming himself to be one more passenger in the ill-fated autorickshaw has stated that the deceased Prakash was also traveling in the very same autorickshaw and he knew him. Witness stated that on 21.05.2006, at 9.30 am., the accident took place. The accused was driving the mini lorry and coming in a rash and negligent manner that too in a zig zag manner it dashed against the right side of the autorickshaw, in which he was traveling along with the deceased. Witness has further stated that after the accident, joined by others he by himself shifted the injured to the hospital. However, the injured succumbed to the injuries on the very same day while under treatment he also stated that, in that connection, he lodged a complaint with the police. Witness has identified the complaint at Ex.P3. He has also stated that himself has shown the scene of occurrence of offence to the police, who have drawn a scene of offence panchanama at Ex.P4. He too was subjected to cross examination from the accused side.
12. PWs.4, 5, 6 and 7 are the police witnesses who have stated about their participation in investigation in the matter.
13. PW2 though has claimed himself to be an eye witness to the accident, however, in his cross examination, has stated that at the time of alleged accident, he was driving his autorickshaw at a speed of 20 kms per hour and that he reached the spot of the accident about 5 to 10 minutes after the accident. It is also his evidence that the alleged offending vehicle overtook his vehicle and thereafter, the accident in question has occurred. Thus, if PW2 was driving his autorickshaw only at a speed of 20 kms., per hour and the alleged offending vehicle was said to be in a high speed which is said to have overtaken his autorickshaw, then naturally, it is only after taking over the autorickshaw and at a further distance, the accident has occurred. Even according to PW2, he has reached the spot of accident only after ten minutes, as such, it cannot be believed that he was an eye witness to the accident and has seen the occurrence of accident.
14. PWs.1 and 3 are undisputedly the inmates in the autorickshaw in question. The accused has not denied that both of them were there in the autorickshaw in question. On the other hand, the accused who has not denied the occurrence of the accident and also has not denied that PW1 was driving the autorickshaw bearing No.KA21-7981 and that PW3 alongwith the deceased were traveling in the very same autorickshaw as the passengers, has only taken a defence that PW1, in order to avoid a pit which was said to be on the road had taken his autorickshaw to his right side, as such, the alleged mini lorry coming from the opposite direction caused the accident in question. However, the said defence was in the form of suggestion and has not been admitted as true by the witness. As such, from the evidence of PW1, it is clear that the accused has not denied the occurrence of accident and the involvement of his mini lorry in it, but, had only taken a defence that it was at the fault of the driver of the autorickshaw, the accident has occurred. But, the said defence could not be established, since PW1 has not admitted the suggestion made by the accused in that regard as true.
Even though the accused has putforth his defence in the cross examination of PW1, but has not taken any such defence in the cross examination of another alleged eye witness ie., PW3. On the other, hand, his evidence that he was an inmate in the autorickshaw traveling along with the deceased Prakash and that he (PW3) by himself shifted the injured to the hospital and also his statement knew that due to the injuries sustained in the accident, the injured Pakash succumbed to it on the same day, have remained undisputed.
15. Further, when PW1 apart from stating that the accused was driving the mini lorry in question in a high speed, has also stated that his driving was a negligent driving. The said statement of PW1 has nowhere been specifically denied in his cross examination. On the other hand, PW1 in his evidence has also stated that after the accident the offending mini lorry travelled further for a distance of 20 meters before coming to a halt. The said statement has also not been denied. Further, the very same witness in his cross examination has stated that the angular of the lorry touched a rod fixed on the right side of the autorickshaw near back seat, thus, the accident has occurred. Even the said description of the manner how the accident has occurred has also not been denied in his cross examination.
16. Evidence of PW3 regarding the manner of occurrence of accident is also on the similar line of what PW1 has stated. Even PW3, apart from stating that the accident in question has occurred at the fault of the accused in driving the mini lorry in question, has specifically and categorically stated that apart from high speed, the mini lorry was being driven in a haphazard manner by the accused. The said statement of the witness has not been denied in the cross examination. Even PW3 has also stated that a part of the lorry dashed to the right side near the back seat of the autorickshaw, due to which the deceased sustained injuries and succumbed to it. The said details given by PW3 in his cross examination was not denied by the accused. Thus, the evidence of PWs.1 and 3 who are undisputedly the eye witnesses to the incident shows that the accident in question has occurred due to rash and negligent driving by the accused of the mini lorry.
Their evidence further show that in the said accident, deceased Prakash who was a passenger in the said autorickshaw sustained injuries and succumbed to it. As such, driving of the autorickshaw apart from rash and negligent manner was also in a manner endangering the life of the other persons.
17. Supporting the evidence of PWs.1 and 3, motor vehicle report and the sketch of scene of offence prepared by the Investigating Officer which are at Exs.P6 and 8 respectively have also come up. The motor vehicle Inspector’s report shows that both the vehicles have sustained damages, only on the right side of the respective vehicles. The front right side bumper and the right side body of the mini lorry are shown to have been damaged, so also right side body of the autorickshaw near its rear wheel. Such description of the damage to the offending vehicle, as well to the affected vehicle corresponds with what PWs.2 and 3 have stated above.
Scene of offence panchanama at Ex.P8 also go to show that the autorickshaw in question is shown to have been on the extreme left side of the road, whereas, the offending mini lorry is shown to have moved from its extreme right to its extreme left, after the accident, leaving the impression of the break mark for a distance of not less than ten feet. Had the offending vehicle been not in a high speed and not gone to its extreme right side, the break mark of the said vehicle would not have been imprinted on the right side to left side of the road for a distance of not less than 10 feet. Thus, apart from evidence of eye witness, even the sketch prepared by the Investigating Officer also go to show that the entire fault of causing the accident in question which has resulted in the deceased Prakash sustaining the injuries and succumbing to it, has been caused by the fault of the accused.
18. The inquest report at Ex.P7 shows that panchas have opined that the death of the deceased was due to injuries sustained by him in the accident and the postmortem report at Ex.P5 corroborates the evidence of PW1 that the deceased Prakash succumbed to the injuries which he had sustained in the accident. Thus, when the prosecution has proved its case against the accused beyond reasonable doubt, the trial Court has considered only a part of the evidence of PWs.1 and 3 that the accused was driving his vehicle in a speed manner, and has omitted in noticing that the very same witnesses has also stated that apart from the speed driving by the accused of the alleged offending vehicle, it was endangering the life of the people. Thus, the trial Court itself assuming that there was no rash or negligent driving, but, it was only a speed driving, has given the benefit of doubt to the accused and pronounced the judgment of acquittal. Since the above analysis of evidence as made above, clearly establishes that the undenied road traffic accident was caused by the rash and negligent driving of the mini lorry by none else than the accused himself, as such, it has to be necessarily held that the prosecution has proved the guilt of the accused beyond reasonable doubt. Therefore, the judgment of acquittal under appeal deserves to be set-aside and accused deserves to be convicted for the alleged offence. Accordingly, I proceed to pass the following;
ORDER (i) The appeal is allowed.
(ii) Judgment of acquittal dated 26.11.2009 passed by the Court of the Civil Judge (Jr.Dn.) and JMFC., Belthangady, Dakshina Kannada in CC No.478/2006 is set-aside. The accused Sri.Siddiq, S/o Abubakkar, R/o Halasinangady house, Charmady village, Belthangady Taluk, is held guilty of the offences punishable under Sections 279 and 304A of IPC.
Heard the learned counsel from both side on sentence part.
While the learned HCGP for the appellant submits for awarding maximum sentence for the offence for which the respondent/accused is convicted, the learned counsel for the respondent/accused submitting that accused is a family holder and a respectable person in society, prays for taking a lenient view by imposing nominal fine only.
It is the sentencing policy that the sentence ordered should not be either exorbitant or for name sake for the proven guilt. It must be proportionate to the guilt for which the accused is found guilty of.
Considering the facts and circumstances of the case, the accused is sentenced to undergo three months simple imprisonment for the offence punishable under Section 279 of IPC and one year simple imprisonment for the offence punishable under Section 304A of IPC and to pay a fine of `5,000/- (Rupees five thousand only), and in case of default of payment of fine, to undergo an additional simple imprisonment for a period of three months.
The Registry is directed to transmit a copy of this judgment to the trial Court forthwith, to enable it to proceed further in the matter for issuance of warrant of conviction, if necessary, and proceed in accordance with law.
An entire copy of this judgment also be delivered to the respondent/accused, immediately free of cost.
Sd/- JUDGE GH