IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ CRIMINAL APPEAL NO.906 OF 2016 Between:
State by Circle Police Inspector, Kundapura Circle, Represented by State Public Prosecutor, High Court Building, Bengaluru-560001. … Complainant/Appellant (By Sri. Divakar Maddur, HCGP) And:
Riyaz Ahmed Ismail, 50 years, S/o. Late Ismail, R/o. Behind Gandhinagara, Noormasidi, Prabhath Nagara, Honnavara, Uttara Kannada District -581 334 ... Respondent (By Sri. Ganapathi S. Shastri, Advocate) This Criminal Appeal is filed under Section 378(1) and (3) of Cr.P.C. praying to grant leave to appeal against the judgment dated 14.12.2015 passed by Additional Civil Judge and JMFC, Kundapura in C.C. No.640/2012 thereby acquitting the respondent/accused of the offences punishable under Sections 279, 338, 304(A) of IPC and Section 134(a)(b) of IMV Act.
This appeal coming on for further hearing this day, the Court delivered the following:
JUDGMENT This appeal is filed by the State challenging judgment and order of acquittal passed by the trial Court thereby acquitting the accused/respondent for the offences punishable under Sections 279, 338, 304A of IPC and Section 134(a) and (b) of IMV Act.
2. I have heard the learned HCGP appearing for the appellant-State and the learned counsel appearing for the respondent.
3. It is the case of the prosecution that on 27.10.2012 at about 2:30 p.m. on NH-66, opposite Vijaya Bank, Kumbashi, the accused being the driver of the tanker bearing registration No. KA-47-3322 drove the same in a rash and negligent manner from Thekkatte towards Koteshwara so as to endanger human life and dashed against the TVS Moped bearing registration No. KA-20-W- 3568 from behind. On account of which both the rider as well as pillion rider of the TVS Moped suffered grievous injuries and they were shifted to the hospital. Wherein the pillion rider of the two wheeler, namely Manjunath Aithal, succumbed to the injuries while taking treatment.
4. It is the further case of the prosecution that the accused being the driver of the tanker, after causing the accident fled away from the place without providing first aid to the injured and also did not inform the incident to the nearest Police Station and thereby committed the offence punishable under Section 279, 338, 304A of IPC and Section 134(a) and (b) of IMV Act.
5. Before the trial Court the prosecution got examined PW1 to PW11 and got marked exhibits P1 to P16. The defence of the accused was one of total denial, however, he did not adduce any evidence on this behalf.
6. The trial Court after considering the oral and documentary evidence adduced by the prosecution, acquitted the accused.
7. Assailing the judgment and order of acquittal passed by the trial Court, the learned HCGP contended that PW-1 to 3 are the eye witnesses to the incident and they have supported the case of prosecution. PW-2 is the injured witness, who was riding the two wheeler/TVS Moped. He submits that the witnesses have identified the accused as the driver of the tanker and in view of the evidence of the eye witnesses, the trial Court was not proper in acquitting the accused. He further submits that the reasons assigned by the trial Court are not in accordance with law and the trial Court has acquitted the accused relying on minor discrepancies which does not go to the root of the prosecution case. Accordingly, he sought to allow the appeal.
8. Per contra, learned counsel for the respondent contended that the prosecution has failed to prove beyond reasonable doubt that the accused was driving the tanker in question. He submitted that the evidence of the prosecution witness does not conclusively prove that the accused was the driver of the tanker. Even the owner of the tanker who has been examined as PW-8, has not supported the prosecution case. He further submitted that according to the Investigating Officer, it was a head on collusion, which is contrary to the prosecution case itself. He further contended that at the place of accident there was road repair work going on and considering all the aspects of the case, trial Court has acquitted the accused and therefore he sought to dismiss the appeal filed by the State.
9. It is the case of the prosecution that the accused being the driver of the tanker bearing registration No. KA-47-3322 drove it in a rash and negligent manner from Thekkatte towards Koteshwara and dashed against TVS Moped bearing registration No. KA-20-W-3568 which was moving on the same direction. On account of which both the rider and pillion rider sustained injuries.
Subsequently, the pillion rider by name Manjunath Aithal succumbed to the injuries while undergoing treatment.
10. The first information report with regard to the accident in question came to be lodged by PW-1. The complaint is marked as Ex.P-1. He has stated that he was an auto rikshaw driver by profession. On 27.01.2012 at about 2.30 p.m. he had parked his autorikshaw in front of Vijaya Bank on NH-66, at that time the two wheeler was moving from Thekkatte towards Koteshwara and on the same direction the tanker which was coming from Udupi side and moving towards Kundapura, driven by its driver in a high speed dashed against the two wheeler from behind. He went to the spot and removed the injured. He noted the registration number of the tanker and then he came to know the name of the accused. The injured persons were thereafter shifted to the hospital.
11. The complainant has been examined as PW-1.
In the cross examination he has reiterated the complaint version. He has further stated that at the spot, road repair work was going on and trees were being cut on account of which the road was covered with dust. He is an attesting witness to Ex.P-2 –Spot Mahazar and P-3 Sketch. In the cross examination he has stated that near the place of accident road repair work was going on and the trees were being cut and the vehicles were allowed to go on the mud road and there were many workers doing the road repair work. Main road was closed in view of the road repair work.
12. PW-2 has deposed that on the date of incident he was riding the two wheeler and his father, the deceased was the pillion rider and they were going from Thekkatte towards Koteshwara at about 2.30 p.m. When they reached Thekkatte, the lorry came from Udupi side and dashed against the two wheeler. He was jammed under the tanker and later they were removed by the persons who had gathered. They sustained severe injuries. Subsequently, his father succumbed to the injuries in the hospital. In the chief examination though he has stated that since he was severely injured he could not see the driver of the tanker, however, in the cross examination conducted by the public prosecutor, he identified the accused person who was present before the Court. In the cross examination conducted by the defence, he has stated that at the place of accident road repair work was going on, trees were being cut for the purpose of widening the road. Therefore, the vehicles were allowed to move on kaccha road instead of the tar road. He admitted that in TVS, only one person can travel. He has further stated in the cross examination that there was no sign board put near the place of accident that there is diversion in view of the road repair work.
13. PW-3 has deposed that on 27.01.2012 at about 2.30 p.m. the tanker was moving from Udupi and he was going by walk from Kumbashi towards Kundapura. At that time the tanker came in high speed from Udupi side towards Kundapura and dashed against the two wheeler. He has identified the accused as the person driving the vehicle. In the cross examination, it is elicited from PW3 that he has not seen as to who was riding the two wheeler and how it was ridden. Further, he has stated that he was not at the spot when the accident took place and not seen how they are moving.
14. PW-4 is another eye witness, however he has not supported the case of prosecution. PW-5 is a hearsay witness, he has stated that he came to know about the accident from the driver of the tanker. PW-6 is the panch witness to Ex.P2 Spot Mahazar and spot sketch-Ex.P3. PW-
7 is the Motor Vehicle Inspector who inspected both the vehicles and issued a report as per Ex.P10. PW-8 is the owner of the tanker and he has not supported the case of prosecution. PW-9 is a head constable who has registered the case and issued FIR and also prepared the spot mahazar Ex-P2 and Ex-P3 the spot sketch. PW-10 is the CPI who conducted Investigation and filed the charge sheet. PW-11 is the PSI who conducted the inquest mahazar and also recorded the statement of some of the witnesses and handed over further investigation to PW-10.
15. PW-1 to PW-3 are the material witness according to the prosecution to establish that the accused was the driver of the tanker and that he was driving the vehicle in a rash or negligent manner and caused the accident. A perusal of the evidence of PWs 1 to 3 and the evidence of the Investigating Officer, it can be safely held that the accused was the driver of the tanker in question. PW-1 has identified the accused before the Court. The accused when he was questioned under Section 313 of Cr.P.C. statement has not specifically denied that he was not the driver of the tanker which caused the accident. Though, PW-8- owner of the tanker has not supported the prosecution case, however, on careful perusal of evidence of PW-1 and Ex.P1 and also the evidence of PW-2 it is crystal clear that the accused was driving the tanker at the time of accident.
16. From the FIR and the evidence of PW1 and from the evidence of PW2 and 3 it is seen that the tanker in question came and dashed against two wheeler from back side. However, it is pointed out by the learned counsel for the appellant that according to PW-11, Investigation Officer, both the vehicles were moving in opposite direction. The Investigation Officer in his cross examination has stated that as per his investigation, the two vehicles were moving in the opposite direction. The same creates a doubt with regard to the manner of accident as projected by the prosecution.
17. Admittedly, at the place of accident, road repair work was going on and vehicles were diverted and allowed to move on kachcha road. There were number of persons working near the place of accident. PW-3 has stated in the cross examination that he has not seen how the vehicle was being driven and he was not at the spot at the time of accident.
18. Though the prosecution has been able to prove that the accident has taken place and the accused was the driver of the tanker in question, however from the evidence of PW1 and 2 it can not be conclusively held that the accident occurred due to the rash and negligent driving by the driver of the tanker in question. It is the case of the prosecution itself that at the place of accident there was road repair work going on and the vehicles were diverted from the main road. The vehicles are allowed to move on kachcha road and the evidence on record goes to show that there was no proper sign board at the place of accident that there is a deviation. Further, the trees were being cut for widening the road and there was full of dust at the place of the accident.
19. The trial court having considered the evidence and material on record has acquitted the accused of the offence punishable under Sections 279, 338, 304A of IPC and Section 134 (a) and (b) of IMV Act. The reasons assigned by the trial Court for acquitting the accused of the offences punishable under Sections 279, 338 and 304 (A) of IPC cannot be said to be illegal and perverse. It is not established that the accused was either rash or negligent in driving the tanker in question and the accident occurred solely on account of his rash or negligent act.
20. From the evidence and material on record it has been established that accused was driving the tanker in question and that he has failed to take reasonable steps to secure medical attention for the injured and he has also failed to inform regarding the accident to the nearest police station. Though, the injured were shifted to the hospital by the public and though the complaint came to be lodged subsequently, however, it is also the duty of the accused to take all reasonable steps to secure medical attention for the injured person and to inform about the accident. The accused being the driver of the vehicle has failed to take reasonable steps in this regard. In view of the same, I am of the view that the prosecution has established that the accused has committed offences punishable under Section 134 (a) and (b) which is punishable under Section 147 of MV Act.
For the foregoing reasons, I pass the following ORDER:
The appeal is allowed in part.
The judgment and order of acquittal passed in C.C. No. 640/2012 dated 14.12.2015 on the file of Additional Civil Judge and JMFC, Kundapura is hereby modified. The judgment and order of acquittal in so-far-as the offences punishable under Sections 279, 338, 304 A of IPC is hereby confirmed. The accused is convicted for the offences punishable under Section 134(a) and (b) of IMV Act and he is sentenced to pay fine of Rs.500/- (Rupees Five Hundred Only) each for the said offences, which shall be deposited before the trial Court within four weeks from today. In default of payment of fine amount, accused is sentenced to undergo, simple imprisonment for a period of 15 days.
Sd/- JUDGE BVK