IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21st DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL APPEAL NO.182/2018 BETWEEN :
The State of Karnataka by Traffic East Police Station, Mangaluru, Represented by State Public Prosecutor High Court Building Bengaluru-560 001.
(By Sri M. Divakara Maddur, HCGP) AND :
Anirudh Pradeep S/o Pradeep Kumar Aged about 23 years R/o Kannirampara House 5-38, Paravuru Post Talakkeri Taluk Kannur, Kerala-670 001.
… Appellant … Respondent (By Sri K. Ravishankar, Advocate-Absent) 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 08.09.2017 passed in C.C.No.229/2015 on the file of the JMFC (III Court), Mangaluru, acquitting the respondent/accused for the offences punishable under Sections 279 and 304(A) of Indian Penal Code.
This Criminal Appeal coming on for orders this day, the Court delivered the following:-
J U D G M E N T Though this appeal is preferred by the State being aggrieved by the judgment and order of acquittal passed by the JMFC (III Court) at Mangaluru in C.C.No.229/2015, dated 8.9.2017.
2. Learned counsel for the respondent has remained absent. I have heard the learned HCGP for the appellant- State.
3. The case of the prosecution in brief is that on 29.08.2014 at about 12.30 p.m., the accused being the rider of the motorcycle bearing Registration No.KL-58-D- 3305 drove the same in a rash and negligent manner, so as to endanger the human life and when he reached near Jyothi Circle, opposite to Thanisq Jewellers, Mangaluru, he dashed to the pedestrian, due to which, he sustained grievous injuries including head injuries and subsequently, he succumbed to the injuries on 30.08.2014 at 8.00 a.m., at Athena Hospital, Mangaluru. On the basis of the complaint, the case has been registered. After completion of investigation, the charge sheet was filed. Learned Magistrate took cognizance and secured the presence of the accused and thereafter, the plea of the accused was recorded. The accused pleaded not guilty and claimed to be tried and as such trial was fixed.
4. In order to prove its case, the prosecution got examined 11 witnesses as PWs.1 to 11 and got marked 18 documents as per Exs.P1 to P18. After hearing the learned counsel for both the parties, the trial Court has acquitted the accused-respondent. Challenging the same, the State is before this Court.
5. It is the submission of the learned HCGP that PWs.1 and 8 are the eye witnesses to the alleged incident and they have deposed before the trial Court that when both were walking near Thanisq Jewellers, the motor cycle in question came rashly and dashed against the deceased, due to which he succumbed to the injuries. He further submitted that PW.8 has also clearly stated that the accused-respondent has caused the accident. Without properly appreciating the said aspect, the trial Court has wrongly acquitted the accused. It is further submitted that the trial Court has also not properly appreciated Ex.P2-the spot mahazar and Ex.P3-spot sketch. The said documents clearly go to show that the accident has occurred on the extreme right side of the road and the said fact corroborates with the evidence of PW.1 who is the complainant and also the panch witness to Ex.P3. He further submitted that without proper appreciation of the evidence on record, the trial Court has wrongly acquitted the accused. On these grounds, he prayed to allow the appeal by setting aside the impugned judgment and order of acquittal.
6. I have carefully and cautiously gone through the submission of the learned HCGP and I have also gone through the evidence which is made available by the learned HCGP.
7. PWs.1, 2, 3 and 8 are the eye witnesses to the alleged incident. PW.1 is also the complainant, who has deposed that the deceased and himself are the friends and on 29.08.2014 at about 12.30 p.m., the deceased met him in order to bring the clothes and when they were proceeding near Thanisq Jewelleries, the motorbike came with speed and dashed to the deceased who was proceeding on the left side of him, as a result of the same, he fell down and sustained injuries and immediately he was taken in an autorikshaw to the hospital and by the time when he came back to the spot, the rider of the motorcycle was not present and he informed the same to the members of the family of the deceased. He has also deposed about the registration of the motorcycle and when he was called to the Police Station, the police showed him the sketch-Ex.P3, to which he has put his signature. During the course of his cross-examination, he has deposed that he came to know about the incident only after he fell down and there were interlocks on the right side of the road. He has further deposed that he did not know as to what was the speed of the motorcycle.
8. PWs.2 and 3 are also the eye-witnesses, who have not supported the case of prosecution and they have been treated as hostile. Even during the course of their cross-examination, nothing has been elicited.
9. PW.4 is the witness to seizure mahazar at Ex.P9.
PW.5 is also the witness to spot mahazar at Ex.P2 and he is also the witness to the spot sketch at Ex.P3. Both these witnesses have not supported the case of the prosecution and they have been treated as hostile.
10. PW.6 is also witness to spot mahazar and spot sketch at Exs.P2 and P3. He has deposed that the said documents were drawn in his presence and he has put his signature. During the course of cross-examination, nothing has been elicited to discard his evidence.
11. PW.7 is the Head Constable who registered the case and issued the FIR as per Ex.P16. PW.8 is the eye witness, who has deposed that he is working as an auto driver and was proceeding along with the passengers and when he came near Jyothi Circle he saw a bike hitting to the pedestrian, who fell down after the accident. Thereafter he went away along with the passengers and he has given the statement before the police. This particular witness has been treated as partly hostile and suggestion made by the learned Assistant Public Prosecutor has been denied.
12. PW.9 is also a witness to seizure mahazar at Ex.P9. PW.10 is the Police constable who received the death report of the deceased and intimated the same to the Investigating Officer. PW.11 is the Investigating Officer who investigated the case and filed the charge- sheet against the accused.
13. On going through the evidence of prosecution, PWs.1 and 8 are the eye-witnesses to the alleged incident. They have not stated about the rash and negligent act of the rider of the motorcycle. In order to establish the case under Sections 279 and 304A of IPC, the prosecution has to prove that the rider of the motorcycle was riding the said motorcycle in a rash and negligent manner so as to endanger the human life. But in the evidence of PWs.1 and 8, no such material has been brought on record except PW.1 saying that the rider of the motorcycle was riding with speed. No doubt, it is well established principle that speed is not the criteria for assessing the rash and negligent act of the rider of the motorcycle.
14. Be that as it may, even as could be seen from the records, there are no material ingredients so as to attract the provisions of Sections 279 and 304A of IPC as against the accused. Under such circumstances, the prosecution has failed to prove its case so as to bring home the guilt of the accused. Looking from any angle, there is no such material to come to the conclusion that the deceased died due to the rash and negligent act of the rider of the motorcycle. In that light, the contentions taken up by the leaned HCGP are not having any force and the same are liable to be rejected.
15. I have gone through the impugned judgment and order of acquittal passed by the trial Court. The trial Court after considering the material placed on record, has rightly come to the conclusion and acquitted the accused. The impugned judgment and order of acquittal is neither illegal nor requires any inference by this Court.
Hence, the appeal is liable to be dismissed being devoid of merits and accordingly the same is dismissed.
*gbb/ck/-
Sd/- JUDGE