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.10 OF 2018 BETWEEN:
The State of Karnataka by Police Inspector, Traffic North Police Station, Surathkal, Mangaluru City, represented by State Public Prosecutor, High Court Building, Bengaluru-560 001. ...Appellant (By Sri.M.Divakar Maddur, HCGP) AND:
Bharath Shetty, S/o.Jagannatha Shetty, Aged 26 years, R/at Shri.Matha Sithla House, Kateel Post, Kondemoola Village, Mangaluru Taluk-574 148. ...Respondent (By Sri.S.K.Acharya, Advocate-Absent) This Criminal Appeal is filed under Section 378(1) and (3) of Cr.P.C., by the State P.P. for the State praying to grant leave to file an appeal against the judgment and order dated 20.09.2017 passed by the Civil Judge and J.M.F.C., Moodbidri, D.K. in C.C.No.600/2015 in acquitting the respondent/accused for the offence punishable under Sections 279 and 304(A) of IPC.
This Criminal Appeal coming on for Orders, this day, the Court delivered the following:
JUDGMENT Heard the learned High Court Government Pleader for appellant-State on I.A.No.1/2018. The said application has been filed under Section 5 of Limitation Act seeking to condone the delay of 6 days in filing the appeal, which is also accompanied with the affidavit.
2. By accepting the cause shown, the delay of 6 days in filing the appeal is condoned by allowing I.A.No.1/2018.
3. Though this case is posted for hearing on interlocutory application, with the consent of learned HCGP for the appellant, the same is taken up for final disposal.
4. The present appeal has been preferred by the State aggrieved by the judgment and order dated 20.09.2017 passed by the learned Civil Judge and JMFC, Moodbidri, Dakshina Kannada, Mangaluru in C.C.No.600/2015 whereunder, the accused was acquitted for the offence punishable under Sections 279 and 304(A) of IPC.
5. I have heard the learned High Court Government Pleader.
6. The gist of the case of the prosecution is that on 10.02.2015 at about 12.00 noon at Moorukaveri, Mennabettu Village, accused being the driver of omni car bearing registration No.KA-19-MC- 8985 drove the same in a rash and negligent manner and dashed against the motorcycle of the deceased. Immediately, the deceased was shifted to hospital but there he breathed his last.
7. On the basis of the complaint, a case was investigated and charge sheet was filed against the accused. Thereafter, learned JMFC took cognizance and recorded the plea of the accused. Accused pleaded not guilty and he claims to be tried and as such, the trial was fixed. In order to prove the prosecution case, prosecution got examined 6 witnesses as PWs1 to 6 and got marked 15 documents. Thereafter, accused was examined under Section 313 of Cr.P.C. Considering the materials placed on record, the Court below acquitted the accused. Challenging the same, the State calls for interference of this Court.
8. The main grounds of learned High Court Government Pleader are that the judgment of the trial Court is contrary to law, facts of the case and evidence on record. Though PW1 - eye witness has deposed that the alleged incident took place due to rash and negligent act of the driver of the omni car, without considering the said fact, the trial Court has granted an order of acquittal. It is his further submission that PWs-2 and 3 are also eye witnesses and they have supported the case of the prosecution and the said evidences have not been relied upon by the trial court. The trial Court ought to have convicted the respondent-accused. It is his further submission that the Court below only on relying upon the minor discrepancies and contradictions acquitted the accused. On these grounds, he prayed to allow the appeal and to set aside the impugned order of acquittal and convict the accused.
9. I have carefully and cautiously gone through the submission made by learned HCGP appearing for the appellant and perused the records.
10. The accident in question is not in dispute. In order to prove the case of the prosecution, the prosecution got examined 6 witnesses. PW1 is the complainant and he is also an eye witness. He has deposed that on 10.02.2015, he was near Moorukaveri garage and at that time a bike was coming from Moodibidri to Kinnigoli and collided with the omni car. PW1 took the injured to Fr.Muller’s Hospital for treatment and the deceased died in hospital. He also deposed that the said accident took place due to the fault of the car driver. Though during the course of cross-examination, it has been suggested that the deceased was coming on the motorcycle by talking over the mobile, the said suggestion has been denied. PW2 is an eye witness. He has deposed that on the date of alleged incident, accused was driving omni car and the accident happened in between bike and car. He further deposed that the Omni driver had put on indicators and bike was coming in a high speed and hit against the Omni car. He has further deposed that the alleged accident has taken place due to the fault of the motorcyclist. PW3 is also another eye-witness, who has deposed that one and half years back, the accident happened at Moorukaveri Junction. He has also deposed that the bike was coming from Moodbidri in a high speed and both the vehicles collided with each other and the accident has happened at the right side of the road. He also deposed that the accident happened due to the fault of the motorcyclist and the motorcyclist was driving his vehicle in a very high speed and the accident happened. During the course of cross- examination, it is elucidated that at that time by putting indicator omni car proceeded to right side and the accident took place. PW4 is spot Mahajar Punch to Ex.P2. PW5 is the police inspector, who investigated the case and submitted the charge sheet. PW6 is also police inspector, who has conducted part of the investigation.
11. On perusal of the entire evidence of the witnesses and the documents, which have been produced by the learned High Court Government Pleader it indicates that admittedly, the omni car was coming from Mulki side and he was intending to proceed towards Kateel. It is subsequently made out that he has put the signal on to take a right turn and at that time, the motor cyclist came in a very high speed and in a rash and negligent manner by talking over the mobile phone and lost his balance over the vehicle and hit the Omni Car. Even PW2, has also substantiated the said fact. Though PW1-complainant is an eye witness and has supported the case of the prosecution but, during the course of cross-examination, he has admitted the fact that he is the relative of the deceased and he has also not stated for what action he was present at the place of the alleged incident. Even as could be seen from the evidence of PWs1 and 2, there is inconsistency in their statement. PW1 has deposed before the Court that the accident has taken place due to the fault of the driver of the Omni Car though PW2 in his evidence categorically deposed before the Court below that the bike was going from Moodbidri to Kinnigoli and omni car has put the indicator on and bike came in a high speed and hit against Omni car. Even on close reading of the statement given by the accused under Section 313 of Cr.P.C., he has stated that he had put the indicators on while he was taking turn to proceed towards Kateel and at that time, the motorcyclist, who was coming rashly and negligently by talking over the mobile phone, came and hit the omni car. The said statement of the accused substantiates the evidence of PW2 and 3, who has also deposed that it is the deceased, who was on default and at his fault the alleged accident has taken place. PW1 is relative and his evidence creates a doubt. Looking from any angle, I find that the prosecution has ultimately failed to prove that the alleged accident has taken place due to the rash and negligent driving of the omni car by respondent-accused.
12. On close reading of the said order, the trial Court after considering all the above said facts and circumstance, has rightly come to the conclusion. There is no good ground to interfere with the order of the trial Court. When the trial Court has exercised the discretion there is no illegality or irregularity, under such circumstance, this Court must be very slow in interfering with such orders. Looking from any angle, the prosecution has not made out any case so as to allow the appeal and to set aside the impugned order as it does not suffer from any infirmities. The trial court has passed the order in accordance with law and neither it is perverse nor illegal. Hence, the appeal is dismissed.
Sd/- JUDGE ag