IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30th DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL APPEAL No.184/2018 BETWEEN:
The State of Karnataka by Station House Officer, Kaup Police Station, Represented by the State Public Prosecutor High Court Building Bengaluru-560 001.
(By Sri M.Divakar Maddur, HCGP) AND:
Aravinda L. Patgar S/o Laxman Patgar Aged about 34 years Aigalakurve, Kodekani Post and Village, Kumta Taluk, U.K.District-581 343.
(Respondent served and unrepresented) …Appellant …Respondent 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 and order of acquittal dated 07.10.2017 passed by the II Additional Civil Judge and JMFC, Udupi in C.C.No.2296/2015, acquitting the respondent/accused for the offences punishable under Sections 279 and 304-A of Indian Penal Code.
This Criminal Appeal coming on for Admission this day, the Court delivered the following:-
JUDGMENT Though this case is posted for admission, with consent of the learned High Court Government Pleader, the same is taken up for final disposal.
2. The State is before this Court challenging the judgment and order of acquittal passed by II Additional Civil Judge and J.M.F.C., Udupi, in C.C.No.2296/2015 dated 7.10.2017.
3. I have heard the learned High Court Government Pleader for the appellant/State. Though notice is served to the respondent, he has remained absent, there is no representation.
4. Case of the prosecution in brief is that on 23.4.2015 at about 10.35 a.m. accused being the driver of 407 Tempo bearing Registration No.KL 02 W 9109 drove the same rashly and negligently on the extreme right side of the road so as to endanger the human life and dashed to the motorcycle bearing Registration No.KM.5 ES-3692, due to which the motorcyclist sustained grievous injuries and subsequently he succumbed to the injuries. On the basis of the complaint a case has been registered in Crime No.81/2015 for the offences punishable under Sections 279 and 304A of IPC. After investigation charge sheet was filed against the accused. Thereafter, the learned Magistrate secured the presence of the accused and after following the formalities under Section 207 of Cr.P.C. the plea was recorded. Accused pleaded not guilty, he claims to be tried and as such the trial was fixed.
5. In order to prove the case of the prosecution, prosecution got examined 8 witnesses and got marked the documents at Exs.P1 to P23. Thereafter, the statement of the accused was recorded by putting incriminating material as against him. Accused denied the same and has not chosen to lead any defence evidence on his behalf and no documents were got marked. After hearing the parties before the Court, the trial Court acquitted the accused. Challenging the legality and correctness of the judgment, the State is before this Court.
6. It is the submission of the learned High Court Government Pleader that the judgment of acquittal is contrary to the evidence and material placed on record. The trial Court has erroneously passed the impugned order. He further submitted that PW1 is the eyewitness to the alleged incident and he has categorically deposed that the alleged accident has taken place due to rash and negligent act of the driver of the tempo taking to the extreme right side of the road and dashed to the motorcycle of the deceased. That itself is sufficient to constitute the negligence on the part of the driver of the tempo, ignoring the said fact, the trial Court has acquitted the accused. He further submitted that observation of the trial Court that Ex.P1 and the evidence of PW1 are not corroborative to each other and contrary to the facts of the case is not correct.
He further submitted that no explanation has been given under Section 313 of Cr.P.C. by the accused. On these grounds he prayed to allow the appeal and to set aside the judgment of the trial Court.
7. I have carefully and cautiously gone through the submissions made by the learned High Court Government Pleader and perused the deposition and other record made available by the learned High Court Government Pleader.
8. In order to prove the case of the prosecution, prosecution got examined 8 witnesses.
PW1 is the complainant and he is also the eyewitness to the alleged incident. In his evidence he has deposed that he has seen the accident with his own eyes and when he was proceeding to Kaup, a motorcyclist went in front of him and another tempo coming from Kaup side, in the turn went towards right side and hit to the motorcyclist and caused the accident and as a result of the same the rider of the motorcycle sustained injury to the leg and immediately he was shifted to the hospital in 108 Ambulance. He has filed the complaint as per Ex.P1 and he has further deposed that he has also signed the spot mahazar Ex.P2.
During the course of cross-examination nothing has been elicited so as to discard his evidence.
PWs.2 and 4 are also eyewitnesses to the alleged incident. Unfortunately they have not supported the case of the prosecution and they have treated as hostile. Even during the course of cross-examination nothing has been elicited so as to substantiate the case of the prosecution.
PW3 is also the spot mahazar pancha to Ex.P2. PW5 is the owner of the vehicle, he has deposed before the Court that he is the owner of the tempo and about one year back the driver is informed him about the accident. Thereafter, he came to the police station and executed the documents pertaining to the said vehicle and got released the said vehicle. PW6 is the PSI who registered the case on the basis of Ex.P1 and issued the FIR as per Ex.P19. PW7 is the PSI who inspected the case and filed the charge sheet against the accused. PW8 is also an Investigating Officer who partly investigated the case.
9. It is well established proposition of law in order to bring home the guilt of the accused under Sections 279 and 304-A of IPC the prosecution has to establish that the driver of the vehicle drew rashly and negligently so as to endanger the human life, but as could be seen from the evidence of eyewitnesses PWs.2 and 4, they have not supported the case of the prosecution and they have been treated as hostile.
10. The only evidence available before the Court is that of evidence of PW1. He has deposed before the Court below that the driver of the tempo took a turn on the right side and at that time the said vehicle hit to the motorcycle. Only because the said vehicle has taken a right turn and dashed to the motorcycle, will not constitute the ingredients of the rash and negligent act on the part of the driver of the said tempo. This Court has also conscious of the fact that if the driver owes a duty and if either he fails to perform his duty or he omits to do what ought to have been done as a ordinary prudent man, then under such circumstances also an inference can be drawn that because of rash negligent act the alleged incident has happened, accused can be convicted, but in the instant case on hand the evidence of PW1 does not repose any confidence of this Court to hold that the alleged accident has taken place due to the rash and negligent act of the accused. In this behalf the said evidence is not helpful to prove the case of the prosecution.
11. Be that as it may. Even the evidence of PW1 goes to show that he has taken a right turn, then dashed to motor cycle, whether taking of a right turn by giving a signal or indicator or it was not there and all of a sudden he had taken a turn and whether there was cross road or not and other aspects are not been brought on record. In the absence of such material before the Court it is very difficult to infer that only because of the driver of the tempo taking the vehicle towards the right side constitute rash and negligent act. The said act will not bring home the guilt of the accused. In the evidence of PW1 he has not stated rash and negligent act of the accused which is fundamental ingredient of the said offence.
12. Looking from any angle, the evidence of PW1 is not trustworthy and reliable. Insofar as other evidence is concerned, they are all the witnesses who came into picture after the alleged incident is concerned and they are not going to further progress the case of the prosecution, that too when the evidence of PW1 itself is not going to substantiate the case of the prosecution.
13. In the light of the discussions held by me above, I am of the opinion that the State has not made out any good grounds to interfere with the judgment of the trial Court and the same is liable to be dismissed.
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Appeal is devoid of merits and accordingly it is dismissed.
Sd/- JUDGE *AP/-