IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.879 OF 2017 BETWEEN:
State of Karnataka By Kadaba Police Station, Represented by State Public Prosecutor, High Court Building, Bengaluru-01. ...Appellant (By Sri.Divakar Maddur, High Court Government Pleader) AND:
Mahesh Bhat P, Son of T.G.Mahabhaleshwara Bhat, Aged about 27 years, R/at Chamethadka, Padmalaya House, Perabe Village, Puttur Taluk - 574201 ...Respondent This Criminal Appeal is filed under Section 378(1) & (3) Cr.P.C to grant leave to appeal against the judgment and order of acquittal dated 28.02.2017 passed by the Additional Civil Judge and J.M.F.C, Puttur, D.K. in C.C.No.1519/2014 – acquitting the respondent / accused for the offence P/U/S 279, 304A of IPC.
This Appeal coming on for Final Hearing, this day, the Court delivered the following:
JUDGMENT Challenging the judgment of acquittal dated 28.02.2017 passed by the Additional Civil Judge and J.M.F.C, Puttur, D.K. in C.C.No.1519/2014 (for brevity hereinafter referred to as the ‘trial Court’) wherein it has acquitted the present respondent for the offences punishable under Sections 279 and 304(A) of IPC, the complainant – State has preferred this appeal.
2. The summary of the case of the prosecution is that on 30.06.2014, at about 5.00 pm., when the complainant (CW1) was waiting for the arrival of his mother deceased Girija from Athooru junction of Ramakunja village near to the autorickshaw stand situated on the side of Uppinangady - Kadaba road. At about 5.20 pm., when her mother alighted from a Jeep, rider of the motor cycle bearing registration No.KA 21/L 8778 riding his motor bike in a rash and negligent manner and coming from Uppinangadi side dashed to her mother, when she was standing on the mud road on the side of the said road causing accident in which his mother sustained multiple injuries and thereafter, succumbed to it in the hospital.
At the instance of the complainant, a crime in complainant police station Crime No.79/2014 for the offences punishable under Sections 279 and 304(A) of IPC was registered and charge sheet against the accused was also filed for the same. The accused not pleaded guilty. Prosecution examined nine witnesses from PWs.1 to 9 and got marked documents from Exs.P1 to P9(a). From the accused side, a photograph at Ex.D1 was marked.
3. Considering the absence of learned counsel for the respondent in the matter on few dates of hearing, this Court by a detailed order dated 06.02.2019 appointed Sri.D.Mohan Kumar, learned counsel from the panel of Legal Services Committee of this Court for the respondent.
4. Heard the argument from both side. Perused the materials placed before this Court including the impugned judgment, memorandum of appeal and the lower Court records.
5. Learned High Court Government Pleader submitted that the sketch of the scene of offence at Ex.P4, as well the evidence of PWs.1, 2 and 3 who are the eye witnesses shows that the accident has taken place on the mud road which was on the side of the main road, however, the trial Court has erroneously concluded that the place of accident was on the tar road. He also submitted that the undisputed fact that, the accident occurred involved the alleged offending vehicle which was being driven by the accused, go to show that he was negligent in his driving, as such, the judgment under appeal deserves to be set-aside and the accused deserves to be convicted.
6. Sri.Mohan Kumar, learned counsel for the respondent in his argument submitted that the accused does not dispute the occurrence of accident, wherein the motor bike bearing registration No.KA 21/L 8778 was involved. It is also not in dispute that the accused was riding the said motor cycle at the time of accident. He also submits that death of one Smt.Girija who is said to be the mother of the complainant due to the injuries sustained by her in the accident are also admitted facts. However, according to learned counsel for the respondent, the place of accident is not on the mud road as projected by the prosecution, but it was on the tar road and the prosecution has failed to prove the alleged rash and negligent driving on the part of the accused, as such, the judgment under appeal does not warrant any interference at the hands of this Court.
7. In the light of the undisputed fact about the occurrence of the accident on 30.06.2014 at about 5.00 pm., at Uppinangady-Kadaba road involving a motor cycle bearing registration No.KA 21/L 8778 being ridden by the accused at the time of accident and also in the light of undisputed fact that in the said accident one Smt.Girija, mother of the complainant sustained injuries and succumbed to it in the hospital. The only question that remains for consideration is about the alleged rash and negligent driving on the part of the accused.
8. According to the prosecution, the accused was rash and negligent in his riding because the accident has occurred on the side of the main road which was the mud portion of the road, as such, the accused was not riding the motor cycle on the road, but, coming on the mud road and causing the accident is purely an act of negligent riding.
9. In the light of such contention of the prosecution that the accident in question was due to rash and negligent riding of the motor cycle by the accused, since the accident has taken place on the mud road, the question that arises at the first instance would be regarding the exact place of accident.
10. The complainant who got examined himself as PW1 in his evidence has stated that he was an eye witness to the accident and while he was seeing the accused riding the motor cycle and dashing to his (complainant’s) mother Girija who was standing on the side of mud portion of the road and after dashing her, the vehicle moved for some more distance and stopped. However, the said witness in his cross examination has admitted a suggestion as true that in his complaint, he has stated that the offending motor cycle after dashing to his mother stopped on the tar road on the edge of mud road. Thus, even according to PW1 after the accident, motor cycle did not fall on the ground nor on the mud road, but, it stopped on the side of the tar road, which was at the edge of the mud road. The said statement which he has admitted as the one he has made in his complaint does not show that the exact place of the accident was on the mud road. In such a situation, the evidence of other two alleged eye witnesses ie., PWs.2 and 3 is required to be looked into.
11. PW2 claiming himself to be an auto driver by profession and knowing the deceased has stated that at the time of accident, he was at his auto stand and saw deceased Girija alighting from a jeep and at that time the offending motor cycle coming from Uppinangadi side dashed against her, while she was standing on a mud road. He has also stated that after the accident, the bike got skid for a distance about 10 feet on the tar road. However, the said witness in his cross examination has clearly stated that in the place of accident on the tar road, there is a scratch mark of the two wheeler rubbing the road. The witness has also stated that the two wheeler after rubbing the road, creating scratch mark on the tar road, entered the mud road and it had fallen there. Thus, according to this witness who claims himself to be the eye witness to the entire incident, the motor cycle before entering the mud road had already dashed to deceased Girija and made a scratch mark on the tar road and then entered the mud road before coming to a halt. Therefore, if the version of PW2 is to be believed, the place of accident would be not on the mud road, but it is on the tar road.
12. The third eye witness to the incident is PW3.
This witness apart from stating that he was an eye witness to the incident and has seen the deceased alighting from the jeep and standing on the mud road, at which time, the accused is said to have dashed against her, while riding his motor cycle, has also stated, after seeing the photograph at Ex.D1 that the place found in the photograph was the place of accident which was on the right side of the road.
13. A perusal of the said photograph at Ex.D1 clearly go to show that the said place is not mud road, but, it is a tar road. Thus, the evidence of PW3, who at one breath says that the accident has occurred on the mud road, but, in the same breath also identifies the place shown at Ex.D1 which is a tar road as the place of accident, makes the evidence regarding the place of accident suspicious.
14. PWs.4 and 5 were examined by the prosecution showing them as panch witnesses for the scene of offence panchanama at Ex.P3. Though both of them have stated that panchanama was drawn in their presence, PW5 has stated that he did not notice the mentioning of the scratch marks on tar road in the panchanama drawn by the police. However, the co- pancha ie., PW4 in his cross examination has clearly stated that in the place of accident, which was on the tar road, the scratch mark formed by the two wheeler was found. The said scratch mark on the tar road was on the right side of Uppinangady-Kadaba road.
15. When the said evidence of none else than the pancha to the scene of offence panchanama also clearly go to show that place of accident was on the tar road and there was scratch mark, the evidence of PW1 who is son of the deceased that place of accident was on the mud road which was on the side of the tar road becomes suspicious.
16. The motor vehicle Inspector who was examined as PW9 has also opined that incase the accident in question has taken place on the mud road, there was no possibility of scratch marks forming on the tar road. Even according to him the right side portion of the motor cycle with its indicator, head light, were all damaged. Therefore, in the light of the evidence of PW2 who claims himself to be an eye witness to the incident and also statement made by PW3 and the evidence of scene of offence panchanama witness ie., PW4, it is clearly established that the place of accident was not on the mud road, but, it was on the tar road. Merely because the Investigating Officer is stated to have shown the place of offence as the mud road which was on the side of the tar road, by that itself ocular evidence of PW2 and evidence of panchanama witness to the very same scene of offence panchanama cannot be disbelieved, rather the evidence of PWs.2 and 4 overweighs the evidence of Investigating Officer as well Ex.P4 with respect to the place of offence.
17. The second point to be considered is whether the accused was rash and negligent while riding his motor cycle at the time of accident. According to the prosecution, the accused was rash and negligent while riding the motor cycle. Though PWs.1, 2 and 3 have stated that the accident in question has occurred at the fault of the rider of the motor cycle, but, they have not stated anywhere in their evidence as to on what basis or on what reason they concluded that the accused was guilty in causing the accident. They have not specifically alleged that the riding of the motor cycle by the accused at the time of accident was rash and negligent.
18. On the other hand, the defence of the accused as suggested to all these witnesses was that the deceased Girija who was said to be aged about 70 years shown some hurry in crossing the road, without observing the passing vehicle, as such, while she was about to cross the road in a hurried manner, the motor cycle dashed to her, though the rider of the motor cycle was not riding it in a rash and negligent manner. No doubt, none of PWs.1, 2 and 3 have admitted the said suggestion as true. However, merely because of non admission of the suggestion on their part and merely because they say that the accident has occurred at the fault of the rider of the motor cycle, by that itself, it cannot be concluded that there was a rash and negligent driving of the motor cycle on the part of the accused.
19. The Hon’ble Apex Court in Rathnashalvan Vs. State of Karnataka reported in AIR 2007 SC 1064 was pleased to observe as below:
“culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amounts of degree of negligence are determining factors. A question whether the accused’s conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case”
20. The very same Hon’ble Apex Court in another case ie., Mahadeo Hari Lokre Vs. State of Maharashtra reported in AIR 1972 SC 221 was pleased to observe as below:
“If a pedestrian suddenly crosses a road without taking a note of a approaching a bus, there is every possibility of his dashing against the bus, without the driver becoming aware of it, the bus driver cannot save accident. However, slowly he may be driving and therefore he cannot be held to be negligent in such a case.”
21. From a reading of above two findings of the Hon’ble Apex Court, merely because a vehicle is said to have been involved in the accident, by that itself it cannot be concluded that there was rash and negligent driving on the part of the driver or rider of the said motor vehicle. In addition to the riding of the motor cycle, there requires to be some element of breach of duty, to take care of a safe riding by the rider of the motor cycle or the driver of the vehicle and also a conscious on his part that his driving may cause some risk to any third person or some evil consequence would follow. It is only in those circumstances, the driving of a vehicle can be called as rash and negligent. The said conscious on the part of the driver can be gathered from the case.
22. However, in the instant case, even though the accused is admittedly was the rider of the motor cycle at the time of accident, but no evidence from the prosecution side has come to show that his riding was a rash and negligent riding in any manner. Therefore, the contention of the accused that the deceased was hurriedly attempted to cross the road, as such, he being a conscious driver, could not able to avoid dashing against her appears to be more probable and a serious doubt in the case of prosecution with respect to the alleged rash and negligent riding of the motor cycle on the part of the accused. As such, the said benefit of doubt is required to be extended to the accused. Consequently, the prosecution is to be held as failed in proving the alleged guilt against the accused beyond reasonable doubt.
23. Since the trial Court has arrived at the same conclusion after appreciation of the evidence, I do not find any error in the said judgment of acquittal. Accordingly, I proceed to pass the following;
ORDER (1) Appeal is dismissed.
(2) The judgment of acquittal dated 28.02.2017 passed by the Additional Civil Judge and J.M.F.C, Puttur, D.K. in C.C.No.1519/2014 is confirmed.
Registry to send copy of this judgment along with the lower court records to the Court below forthwith.
It is recommended to the Registry to consider the remuneration / honorarium of not less than `5,000/- to the learned panel advocate for the respondent.
Sd/- JUDGE GH