IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 01ST DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.2052/2018 BETWEEN:
The State by Gonibeedu Police Station Rep. by the State Public Prosecutor, High Court Building, Bengaluru – 560 001.
(By Sri M. Divakar Maddur, HCGP) AND:
P.A. Aboobakar S/o Anduka Arapattu, Aged 52 years, Kadanga Marooru Village, Virajpet Taluk, Madikeri District – 571218.
...Appellant ... Respondent (Notice not ordered in respect of Respondent) This Criminal Appeal is filed under Section 378(1) and (3) Cr.P.C. by the State praying to grant leave to appeal against the Judgment and Order dated 12.06.2018, passed by the Court of Senior Civil Judge and JMFC, at Mudigere in C.C.No.829/2015, acquitting the accused/respondent for the offences punishable under Sections 279, 337 and 304A of IPC.
This Criminal Appeal coming on Hearing on Interlocutory Application, this day, the Court made the following:
J U D G M E N T Though this case is posted for Hearing on Interlocutory application, the same is taken up for final disposal with the consent of the learned High Court Government Pleader.
Heard on I.A.No.1/2019.
By accepting the cause shown therein, delay of 61 days is condoned.
2. The present appeal has been preferred by the State challenging the judgment and order of acquittal passed by learned Senior Civil Judge and JMFC, at Mudigere in C.C.No.829/2015 dated 12.06.2018 for the offences punishable under Sections 279, 337 and 304(A) of IPC.
3. The facts leading to the case are that on 13..06.2015 at about 1.45 p.m., at NH 234 road, complainant was driving his Tata Nano car bearing registration No.K.A.02/AG/3004, accused being the driver of the Tempo Traveller bearing registration No.KA.20/9798 came from opposite direction by overtaking the Jeep came extreme right side and dashed to the Nano car. Due to which P.Ws.1 to 3 who were traveling in the said car have sustained injuries and the father of the complainant succumbed to the injuries. Subsequently, on the basis of the said complaint, after investigation charge sheet was filed.
4. Accused was secured and his plea was recorded, he denied the plea and he claimed to be tried and as such the trial was fixed. In order to prove its case the prosecution, has got examined P.Ws.1 to 9 and got marked documents as per Exs.P1 to 23. Thereafter, the accused came to be examined under Section 313 of Cr.P.C. He denied the contents of the incriminating materials. After hearing both the sides the impugned judgment came to be passed acquitting the accused for the charges with which he was charged. Challenging the legality and correctness of the said judgment, the State is before this Court.
5. It is the submission of the learned High Court Government Pleader that the order of acquittal passed by the trial Court is not in accordance with law. Though P.W.1 in his evidence has categorically deposed that the alleged accident has taken place due to rash and negligent driving by the accused, without considering the said material the Court below has acquitted the accused. It is his further submission that the driver of the Tempo Traveller was driving the said vehicle with high speed and he came and dashed to Nano car and thereby caused the accident. It is his further submission that the Court below has not considered the evidence in its right prospective and has come to a wrong conclusion. It is further submitted that the Court below only on the presumptions and assumptions has come to a wrong conclusion and has acquitted the accused. On these grounds he prayed to allow the appeal and to set aside the impugned order.
6. As could be seen from the records, P.W.1 is the complainant and he is a driver of Nano car and he is also an eyewitness to the alleged incident. Though in his evidence he has deposed about the alleged accident stating that at about 1.45 p.m., the driver of the Tempo Traveller was driving in a rash and negligent manner and dashed to his car, in his evidence he has no where stated that it is the accused who was driving the said vehicle and he has not identified the accused. The very crucial aspect, the prosecution has to establish that as on the date of alleged accident the accused was driving the said Tempo Traveller and because of his fault the alleged accident has taken place. Under such circumstances the evidence of P.W.1 cannot be taken into consideration to attribute to the case of the accused. P.Ws.2 and 3 are the punch witnesses to Ex.P5 spot mahazar, though they have admitted their signature, they have not supported the case of the prosecution and they have been treated as hostile. Even during the course of cross examination by the learned Assistant Public Prosecutor nothing has been elicited so as to substantiate the case of the prosecution. P.W.4 is the Police Constable who has recorded the statement of P.W.1 complainant and thereafter, he brought and gave the same to P.W.5. On the basis of the complaint Ex.P1, it is P.W.5 ASI received the complaint and registered and issued the FIR as per Ex.P7. P.W.6 is the Investigating Officer who partly investigated the case. P.W.7 is the eyewitness, he has not supported the case of the prosecution, even in the cross examination nothing has been elicited so as to substantiate the case of the prosecution. P.W.8 is also the Investigating Officer who has investigated the case and filed the charge sheet against the accused. P.W.9 is also the Investigating Officer who conducted the part of investigation.
7. On close reading of the evidence of all these witnesses, only evidence which is available before the Court is that of P.W.1, and another witness P.W.7 he has not supported the case of the prosecution and he has been treated as hostile. As discussed above though P.W.1 has deposed all of the aspects, the crucial aspect that the accused was the driver of the Tempo Traveller at the time of accident is not proved by the prosecution for the reasons best known to the prosecution. The accused has not been identified and mere establishment of the incident will not prove the case of the prosecution. The prosecution has not specifically proved that the accused was driving the said vehicle as on the date of incident and because of his rash and negligent manner the alleged accident has taken place.
8. Taking into consideration of the above facts and circumstances the prosecution has utterly failed to prove its case and the trial Court looking into the said aspect has rightly acquitted the accused. There are no good grounds to entertain and admit this appeal.
The criminal appeal being devoid of merits, the same is liable to be dismissed. Accordingly, it is dismissed.
Sd/- JUDGE GJM