IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.185/2018 BETWEEN:
The State of Karnataka By Mangaluru Rural P.S.
Rep. by State Public Prosecutor, High Court Building, Bengaluru – 560 001.
... Appellant (By Sri. K. Nageshwarappa, Advocate) AND:
A. Madhai Age 51 years, S/o K. Arjun, R/o No.507, Chennappa Road, Kammanahalli, Bengaluru – 560 084.
... Respondent (Respondent is served and unrepresented) This Criminal Appeal is filed under Section 378(1) and (3) of Cr.P.C. praying to grant leave to file an appeal against the Judgment dated 20.09.2017 passed by the J.M.F.C. (III Court), Mangaluru in C.C.No.3949/2013 acquitting the respondent/accused for the offences punishable under Sections 279 and 304(A) of IPC.
This appeal coming on for Admission, this day, the Court delivered the following:
J U D G M E N T Though this case is posted for Admission, the same is taken up for final disposal with the consent of the learned High Court Government Pleader.
2. The present appeal has been preferred by the State, being aggrieved by the judgment and order of acquittal passed by JMFC (III Court) at Mangaluru in C.C.No.3949/2013, wherein the accused was acquitted for the offences punishable under Sections 279 and 304(A) of IPC.
3. The case of the prosecution in brief is that on 22.05.2013 at about 3.30 p.m., the accused being the driver of a Tanker lorry bearing registration No.KA- 19-AB-5171, drove the same in a rash and negligent manner and dashed to deceased-Taranath, who was walking on the mud road. As a result of the said accident, the deceased sustained fatal injuries and succumbed to the hospital. On the basis of the complaint a case has been registered in Crime No.184/2013.
4. After completion of investigation, the charge sheet was filed against the accused for the said offences. The learned Magistrate recorded the plea of the accused and the accused pleaded not guilty and claimed to be tried. To bring home the guilt of the accused, the prosecution examined PWs.1 to 7 and got marked 10 documents. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. and after hearing the learned counsel appearing for both the parties, the impugned judgment of acquittal came to be passed challenging the legality and correctness of the said judgment, the State is before this Court.
5. The main grounds urged by the learned High Court Government Pleader are that the impugned judgment and order of acquittal passed by the Appellate Court is contrary to the evidence and materials on record. It is further submitted that the evidence of PW.3 clearly establishes the fact that the accident in question was solely on account of rash and negligent act of the driver of the tanker. It is further submitted that the tanker has gone on the extreme left side of the road and hit to the pedestrian, who died because of the said injuries. It is further submitted that the accused was driving the said vehicle, was not in dispute and the accident is also not in dispute. Even the evidence of PWs.2 and 3 clearly goes to show that the driver of the tanker was driving the said tanker in high speed and dashed to the pedestrian. Without considering the material placed on record, the learned Magistrate has erred in disbelieving the evidence of these witnesses and has wrongly acquitted the accused only on presumption and assumption. On these grounds, he prayed to allow the appeal and to set aside the impugned judgment of acquittal. Though notice is served to the respondent, the respondent has remained absent.
6. On close reading of the evidence, in order to prove the case of the prosecution, the prosecution got examined seven witnesses PW.1 - the complainant, who is none other than brother-in-law of the deceased, is not an eye-witness to the alleged incident. In his evidence, he has deposed that he came to know about the alleged accident only on receipt of the phone call. Thereafter, he went to the hospital and he found the injured in a emergency ward and on the same day he died and on the next day morning at about 6 a.m., he has filed the complaint as per Ex.P1.
7. Though PW.2 is cited as an eye-witness to the case of the prosecution, but he is not an eye-
witness. It further discloses that PW.1 is his brother and he had a hotel at Adyar and the deceased is his brother-in-law and on 22.05.2013 at about 3.20 p.m. he was in his hotel, at that time, a tanker lorry came and stopped in front of his hotel and people were gathered. This evidence itself clearly goes to show that he has not witnessed the said incident and he is also a witness to Ex.P2-the spot mahazar.
8. PW.3 is an eye-witness to the alleged incident. In his evidence, he has deposed about the alleged incident stating that on 22.05.2013 at about 2.30 p.m., he was proceeding to the hotel at that time, the accused being the driver of the tanker, came from Mangaluru in a rash and negligent manner and dashed to the pedestrian, who was proceeding on the mud road from Mangaluru. Due to the impact of the accident, pedestrian sustained grievous injuries, suddenly he rushed to the spot and he came to know that the injured is a brother-in-law of CW.2. Then CW.2 shifted him to Wenlock hospital. During the course of cross- examination, he has deposed that the distance between his seeing and the place of accident is 60 feet and there were many other vehicles were plying on the said road in front of the said tanker and behind tanker and he cannot say about the speed of tanker. He further deposed that many vehicles were also plying on the said road but no where, either in the examination-in-chief or during the course of cross-examination, he has deposed that the alleged incident has taken place due to the rash and negligent act of the driver of the said tanker. In this behalf, the evidence of PW.3 is not going to substantiate the case of the prosecution. In order to prove the case of the prosecution under Section 279 and 304A of IPC, the prosecution has to clearly establish that the alleged incident has taken place due to the rash and negligent act of the driver of the said vehicle and he has driven it rashly and negligently so as to endanger the life of the human being and the main ingredients of the said sections have not been substantiated in the evidence of PW.3. Though elaborately he has stated about the accident and other material, the crucial aspect has not been stated. In this behalf, the evidence of PW.3 is not acceptable.
9. Though it is contended by the learned HCGP that the accident is not in dispute and even PW.3 has also clearly stated that it is the driver of the tanker, has caused the accident but the evidence, which has been produced, fails to establish the fact that the accused was driving the said tanker in a rash and negligent manner at the time of the alleged accident. Under such circumstance, the Court cannot draw an inference and come to the conclusion that it is because of the rash and negligent act of the accused, the alleged accident has taken place. Even res ipsa loquitur principles also cannot be made applicable to the facts of the case on hand. In this behalf, the said evidence is not acceptable.
10. PW.4 is the GPA holder of the owner of the vehicle. He has only deposed that as on the day of the accident, the accused was the driver of the said vehicle. PW.5 is the police constable, who dispatched the FIR to the jurisdictional Court. PW.6 is the mahazar witness. He has not supported the case of the prosecution and he has been treated as hostile. PW.7 is the Investigating Officer who investigated the case and filed the chargesheet.
11. When the material witness i.e., PW.3 has not specifically stated regarding the rash and negligent act in that light, he is not trustworthy and reliable and it cannot be accepted and relied upon. Under such circumstance, the other evidences which has been produced, is not going to progress the case of the prosecution further in any manner. It is always well settled principle of law that if any doubt arises in the case of the prosecution, the benefit of doubt would go to the accused. In this behalf, the trial Court after considering the said materials, has rightly come to the conclusion and has rightly acquitted the accused.
12. There are no good grounds to interfere with the said order. The appeal being devoid of merits, is liable to be dismissed. Accordingly, it is dismissed.
Sd/- JUDGE GJM/VBS