IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17th DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL APPEAL No.229/2019 BETWEEN:
The State by Circle Inspector of Police Traffic Police Station, Bantwal, D.K. District Represented by State Public Prosecutor High Court Building Bengaluru-560 001.
(By Sri M.Divakar Maddur, HCGP) AND:
Kishore Kumar S/o Chandra Purusha Aged about 31 years R/at No.3-40(1), Kabbina Hitlu Mane, Vitla, Kasaba Grama Bantwal Taluk, D.K. District-574 211.
(Notice dispensed with in r/o Respondent) …Appellant …Respondent This Criminal Appeal is filed under Section 378(1) and (3) of Cr.P.C praying to grant leave to appeal against the judgment and order of acquittal dated 20.08.2019 passed by the Additional Civil Judge and I JMFC, Bantwal, D.K. District in C.C.No.1322/2016 acquitting the accused/respondent for the offences punishable under Sections 279, 304A of Indian Penal Code.
This Criminal Appeal coming on for Admission, this day the Court delivered the following:-
J U D G M E N T The State is before this Court challenging the judgment and order of acquittal dated 20.8.2018 passed by Additional Civil Judge and JMFC, Bantwal, D.K. District in C.C.No.1322/2016.
2. I have heard the learned High Court Government Pleader. Though this case is listed for hearing on Interlocutory Application, with the consent of the learned High Court Government Pleader, the same is taken up for final disposal and notice to respondent is dispensed with.
3. The genesis of the case of the prosecution is that, accused being the driver of the bus, on 29.06.2016 at about 2.00 p.m. drove the same in a rash and negligent manner and dashed to the pedestrian who was proceeding on the mud road, as a result of the same he sustained grievous injuries and he was shifted to Bantwal, Samudaya Health Centre, where he succumbed to the injuries. On the basis of the complaint, a case has been registered and after investigation charge sheet has been filed. The learned Magistrate took the cognizance, secured the presence of the accused and after hearing, his plea was recorded. Accused pleaded not guilty, he claims to be tried, as such trial was fixed.
4. In order to prove the case of the prosecution, it has got examined 9 witnesses and got marked 12 documents. Thereafter, statement of the accused was recorded and after hearing, the Court below acquitted the accused.
5. The main grounds urged by the learned High Court Government Pleader are that the judgment and order of acquittal is illegal, contrary to facts and law. It is his further submission that PW1 has categorically deposed about the rash and negligent act, though he has not identified the accused, PW8 the owner of the vehicle has clearly deposed that as on the date of the alleged incident it is the accused who was driving the said vehicle. If both these evidence are corroborated, then the case of the prosecution is going to be proved. It is because of the rash and negligent act of the accused, the deceased died due to the injuries. It is his further submission that the alleged accident has taken place on the mud road. That itself clearly goes to show that it is because of the fault of the accused, the alleged incident has taken place. He further submitted that the trial Court has not considered the report of the Vehicle Inspector and the evidence of other witnesses and has erroneously passed the impugned order. On these grounds he prayed to allow the appeal and to set aside the impugned order and convict the accused.
6. I have carefully and cautiously gone through the submissions made by the learned High Court Government Pleader and perused the evidence and documents made available.
7. PW1 is the complainant- son of the deceased. In his evidence he has deposed that on 29.6.2016 himself and deceased father while going together and when they alighted the auto at Ramalkatte and thereafter they are proceeding towards B.C. road and at that time the bus bearing registration No.KA.19 D.2844 came with high speed rashly and negligently and dashed to his father and as a result of the same he sustained injuries to his head and face and subsequently he was taken to General Hospital in an Ambulance and there he succumbed to injuries. Subsequently, he came to know that the driver of the bus was Wishwanth Poojari and due to his fault the alleged accident has taken place. He has filed the complaint as per Ex.P1. During the course of cross- examination he has deposed that his father was proceeding ahead at a distance of 4 to 5 feet and he was going behind him and he has further deposed that the said vehicle came from behind and hit and he did not identify the accused as he immediately went to assist his father. He has further submitted that no damage has been caused to the front portion of the bus. Except that nothing has been elicited.
PWs.2 and 3 are the eyewitnesses to the alleged incident, but they have not supported the case of the prosecution. PW4 is the wife of the deceased, she has only substantiate the evidence who brought the information about the accident. PWs.5 and 6 are the spot mahazar and seizure mahazar pancha to Exs.P2 and P3. PW5 has not supported the case of the prosecution. PW7 is the ASI, who registered the case on the basis of the complaint Ex.P1 and he has issued the FIR as per Ex.P10. PW8 is the owner of the vehicle. In his evidence he has deposed that the accused was driver of the bus and he is the owner and he has identified the signature on Exs.P11 and 12. He has further deposed that he do not remember who was the driver on the date of the accident. This witness has been treated as hostile. Even during the course of cross- examination nothing has been elicited.
PW9 is the Investigating Officer who investigated the case and filed the charge sheet.
8. On going through the evidence and material placed on record, PWs.2 and 3 the eyewitnesses have not supported the case of the prosecution. The only witness available before the Court is that of PW1. In his evidence he has not identified the accused. Though it is contended by the learned High Court Government Pleader that PW8 is the owner, he has deposed that he was working as a driver. But in his evidence he has clearly stated that, on the date of the accident who was the driver was not brought by him and as such the said witness has been treated as hostile and even during the course of cross-examination nothing has been elicited. In that light, it is going to create a doubt in the case of the prosecution, as to who was the driver as on the date of the accident.
9. Be that as it may. Even as could be seen from the evidence of PW1 he has deposed in the cross-examination that his father was proceeding ahead at a distance of 4 to 5 feet and he was proceeding behind him and the bus came from behind and hit to the deceased. If he is going at a distance of 4 to 5 feet behind the deceased, then under such circumstances, first the bus has to hit the complainant, thereafter it has to hit the deceased. But the prosecution has not made any clear explanation whether exactly PW1 was present and proceeding, where actually he was when the alleged incident took place. As could be seen from the sketch produced, it indicates that at the edge of the tar road the alleged accident has taken place. In that light, if the entire material is taken into consideration, the accident in question has not taken place as it has been contended by the prosecution. It is well proposed proposition of law that the prosecution has to establish its case as it contends and no other benefit can be taken in this behalf. Looking from any angle, the other evidence is also not going to substantiate the case of the prosecution.
10. I have carefully and cautiously gone through the judgment of the trial Court. The trial Court after considering the evidence and material placed on record has come to a right conclusion and has rightly acquitted the accused. There are no good grounds to interfere with the judgment of the trial Court.
The appeal is devoid of merits. Same is liable to be dismissed and accordingly it is dismissed.
IA No.1/2019 does not survive for consideration and accordingly it is disposed of.
Sd/- JUDGE *AP/-