IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.609 OF 2017 BETWEEN:
State of Karnataka By Padubidri Police Station, Udupi District, Represented by State Public Prosecutor, High Court Building, Bengaluru-560 001. ...Appellant (By Sri. Divakar Maddur, HCGP) AND:
Siddique, Aged about 36 years, S/o. Najeer, Residing at Chokkabettu, 8th Block, Krishnapura, Surathkal, D.K.District-575 014. ...Respondent (By Sri. R.Srinivasa Gowda, 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 and order dated:05.01.2017 passed by the II Addl.
Civil Judge and JMFC, Udupi in C.C.No.1761/2010 acquitting the respondent-accused for the offences punishable under Section 279, 304A of IPC.
This Appeal coming on for Admission, this day, the Court delivered the following:
JUDGMENT The State has preferred this appeal challenging the judgment of acquittal dated 05.01.2017, passed by the II Additional Civil Judge and JMFC, Udupi (hereinafter for brevity referred to as “trial Court”), in C.C.No.1761/2010, wherein it has acquitted the present respondent for the offences punishable under Sections 279 and 304(A) of the Indian Penal Code, 1860 (hereinafter for brevity referred to as “IPC”).
2. The summary of the case of the prosecution is that on 24.03.2010, the accused being the driver of tipper lorry, bearing Registration No.KA-20-A-8751 drove the same in rash and negligent manner from a place called Adamaru side towards another place called Mudarangadi and the said driving was in a manner so as to endanger human life. At about 8.45 a.m., when the accused was nearing a place called Dalanthre of Yellur Village, Udupi Taluk, the vehicle being driven by him dashed to a pedestrian by name Bendeict D’Souza. As a result, said Benedict D’Souza sustained grievous injuries and died in the spot.
3. Charges were framed against the accused for the offence punishable under Sections 279 and 304(A) of IPC.
4. Since the accused pleaded not guilty, trial was held, wherein the prosecution examined six witnesses as PWs.1 to 6 and got marked documents from Exs.P-1 to 11(a). Neither any witness was examined nor any document was marked from the side of the accused.
5. After hearing both side, the trial Court by its impugned judgment, acquitted the accused for the alleged offences. It is against the said judgment, the State has preferred this appeal.
6. The respondent is being represented by the counsel from the Panel of High Court Legal Services Committee, Bengaluru.
7. Though this matter was listed for Admission, with the consent of learned counsel from both side, the matter is taken up for final disposal.
8. Heard arguments from both side, perused Memorandum of Appeal, impugned judgment and Lower Court Records.
9. Learned High Court Government Pleader in his arguments submitted that all the witnesses examined by the prosecution, have supported the case of prosecution. PWs.1 and 2 are the eye witnesses, whose evidence has come in consistency. The motor vehicle report shows that there was no mechanical defect in the vehicle. The evidence of owner of the vehicle establishes that accused was driving the alleged vehicle at the time of accident. However, the trial Court without appreciating the evidence and in a single sentence reasoning, which reasoning does not sustain, has pronounced the judgment of acquittal.
10. Learned counsel for the respondent in his arguments submitted that the occurrence of accident, date and time alleged in the charge, as well the involvement of the tipper lorry vehicle bearing registration No. KA-20-A-8751 are not in dispute.
However, the prosecution has failed to establish that the alleged accident was due to alleged rash and negligent driving of the said vehicle by the accused. He further submits that the reason given by the trial Court is cogent and convincing, as such, the same does not warrant any interference by this Court.
11. Among six witnesses examined by the prosecution, PWs.1 and 2, claiming themselves to be eye witnesses to the alleged accident, both of them have supported the case of prosecution by stating that at the time of accident they were also going on the very same public road where the accident has occurred, as such, they have seen the occurrence of accident. According both these witnesses deceased Benedict D’Souza was walking on the side of the road at a short distance from them. It is at that time, a tipper lorry coming from opposite direction came in high speed and in a rash and negligent manner, dashed to said Benedict D’Souza, due to which he sustained injuries, fell down and died on the spot. Both of them have stated that after the accident, said lorry made a stop at a short distance from the place of accident. Both these witnesses have also stated that they have seen the driver of the said lorry, whom they have identified as accused, who was present in the Court.
12. PW.1 has further stated that in the said connection, he has lodged a complaint with Police, which he had identified at Ex.P-1. Further, he has also stated that when the Police came to the place of offence, he has shown them the place of offence, where Police have drawn seizure panchanama as per Ex.P-2 and seized the offending vehicle. In said panchanama, the witness identified his signature.
13. Both PWs.1 and 2 were subjected to cross-examination from the side of accused. In the cross- examination of PW.1 it was suggested to the witness that the alleged offending vehicle was coming from Adamaru side to Mudarangadi, which the witness has admitted as true. Further, one more suggestion was made to the very same witness suggesting to him that the injured was going on the road by walk on the western side, which suggestion was also admitted as true by the witness. It was further elicited from the very same witness in his cross-examination from the side of the accused that the offending vehicle was coming from the opposite direction and it dashed on the right shoulder of the injured. Thus, in the cross- examination of PW.1 from the side of accused, some more details confirming the accident and involvement of alleged offending vehicle in question was elicited. Further, an admission was also made about the offending vehicle being involved in the accident and also the deceased going on the road at the time of accident and the offending vehicle dashing to his right shoulder. The evidence of PW.1 that was given by him in examination-in-chief was further elaborated in his cross- examination.
14. The cross-examination of PW.2 is of a single sentence wherein he has stated that before he reached the spot, the accident had occurred. From the said statement, it cannot be inferred that PW.2 was not an eye witness to the accident. It is because, even according to PW.2, deceased Benedict D’Souza was proceeding ahead of him on the road, as such, PW.2 was not accompanying him, but he could only able to see him from a short distance. Thus, in the light of a reading of examination-in-chief of PW.2 in its entirety, the single sentence cross-examination of the same witness who has stated that the accident has occurred before he could reach the spot, has to be taken that accident has taken place at a short distance from him, which he could able to see, however, he by the time reached the said spot only after seeing the accident from a distance. Therefore, it cannot be suspected that PW.2 was not an eye witness to the accident.
15. PW.3 has stated that the scene of offence panchanama as per Ex.P-2 and inquest panchanama of the deceased as per Ex.P-3 were drawn in his presence. He has also stated that under the scene of offence panchanama, the tipper lorry which was the offending vehicle, was also seized. The witness has also stated that the Police drew a sketch of the accident also in the spot. Though this witness has stated that scene of offence panchanama was drawn between 12.00 noon to 1.00 p.m. by Police and PW.1 was also present in the said place, however, PW.1 has stated that he had signed the said panchanama in the Police Station. Even after believing the said statement that PW.1 has signed the said panchanama in the Police Station, the same would not take away the value of the evidence of PW.1, who has stated that scene of offence panchanama was drawn in the spot in his presence and that he has signed the same. The evidence of PW.5, the first Investigating Officer also stands corroborated by the evidence of PW.3 on the said point.
16. PW.4 has stated that he is the owner of the alleged offending vehicle bearing registration No.KA-20-A-8751 and that as on the date of the accident it was the accused who was driving the said vehicle. The denial suggestion made to him in his cross examination were not admitted as true by this witness. Thus, the evidence of PWs.1 and 2 who have identified the accused in the Court as the driver of the alleged offending vehicle and also has stated as to which was the offending vehicle has been further corroborated by the evidence of none else than the owner of the said vehicle i.e., PW.4. The evidence of PW.5 and 6, who are the Investigating Officers, who have stated about registration of FIR, conducing scene of offence panchanama as per Ex.P-2, drawing inquest panchanama as per Ex.P-3, collecting post mortem report as per Ex.P-4, motor vehicle inspector’s report as per Ex.P-5, preparing the sketch in the spot as per Ex.P- 9 have all been corroborated by the evidence of PWs.1, 2, 3 and 4.
17. A perusal of the inquest panchanama shows that panchas to the said panchanama have opined that in their opinion the cause of death of the deceased was due to motor vehicle accident, due to rash and negligent driving of the alleged offending vehicle. The post mortem report at Ex.P-4 apart from noticing the lacerated wound measuring 2X3 c.m., bone deep seen over the occipital area with the fracture of the underlying occipital bone, has opined that the death was due to severe hemorrhage and shock. Thus, the evidence of PW.1 that deceased Benedict D’Souza sustained head injuries due to accident and died on the spot is further corroborated by the inquest panchanama and post mortem report.
The motor vehicle inspector’s report at Ex.P-5, which says that the accident was not due to any mechanical defect of the motor vehicle, corroborates the evidence of PWs.1 and 2 that the driver of the alleged offending vehicle drove the said vehicle in rash and negligent manner and dashed to the deceased.
18. The sketch at Ex.P-9 also go to show that the place of accident is shown to have been on one side of the road from Adamaru to Mudarangadi and the alleged vehicle is shown to have hit the said person and gone to a further distance of 30 feet before coming to a halt. Thus, the evidence of PWs.1 and 2 who are the eye witnesses to the incident are proved to be trust worthy and reliable. Their evidence is further corroborated by Exs.P-2, 3, 4, 5 and 9. The evidence of PWs.1 to 4 corroborates the evidence of the Investigating Officer, i.e., PWs.5 and 6. Thus, the prosecution could able to prove beyond reasonable doubt that on the date of accident, the accused was driving the offending vehicle i.e., tipper lorry bearing registration No.KA-20-A-8751 in rash and negligent manner and due to rash and negligent driving, the said lorry dashed to Benedict D’Souza, a pedestrian causing him injuries, to which he succumbed on the spot.
19. However, the Court below without appreciating these evidence in proper perspective has given a single sentence reasoning from observing that a perusal of the evidence led by the prosecution, it appears that there are so many contradictions, improvements and discrepancies, as such, its case cannot be believed. If on the contrary, a suggestion said to have been put by the counsel for the accused that the accident has taken place because the deceased has hurriedly tried to cross the road, was believable. The said finding is without any convincing reason. The Court below has not explained as to what are the contradictions, improvements or discrepancies that are found in the evidence of prosecution witnesses. Further it also has not stated that there are such contradictions, improvements or discrepancies, but only has stated that ‘it appears that there are so many contradictions, improvements and discrepancies’. Further, what suggestion was not made to any of the prosecution witnesses from the side of the accused that the deceased was hurriedly crossing the road, has been imagined by the Court below on its own, which has led in it passing an erroneous judgment, which deserves to be set aside and the accused requires to be held guilty of the alleged offences. Accordingly, I proceed to pass the following order:
ORDER The Appeal is allowed. The judgment of acquittal dated 05.01.2017, passed by the learned II Additional Civil Judge and JMFC, Udupi in C.C.No.1761/2010 is set aside. The respondent/accused by name – Siddique S/o Najeer, Residing at Chokkabettu, 8th Block, Krishnapura, Surathkal, D.K. District, is convicted for the offences punishable under Sections 279 and 304(A) of IPC.
Heard the learned counsel from both side on sentence part.
While the learned High Court Government Pleader 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.
It is the sentencing policy that the sentence ordered should not be either exorbitant nor 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, for the offence punishable under Section 279 of IPC, the accused is sentenced to undergo three months simple imprisonment and to pay fine of `1,000/- and in case of default of fine, the accused shall undergo additional simple imprisonment of 15 days and for the offence punishable under Section 304(A) of IPC, the accused shall undergo simple imprisonment for a period of one year and to pay fine of `5,000/- and in case of default of payment of fine, the accused shall undergo additional imprisonment of two months.
Both sentences shall run concurrently.
The period of Judicial custody if the accused has undergone, if any, in this case shall be given set off under Section 428 of the Code of Criminal Procedure, 1973.
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.
Considering the effort put by the learned counsel for the appellant from the panel of High Court Legal Services Committee, Bengaluru, it is recommended to the Committee to consider the remuneration/honorarium to be paid to the learned counsel at not less than `5,000/-.
Sd/- JUDGE BMC