IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.1158/2019 BETWEEN:
The State of Karnataka By Circle Inspector of Police, Karkala Circle, Karkala, Udupi. (By Assistant Public Prosecutor) Rept. by State Public Prosecutor, High Court Building, Bengaluru-560 001. ... Appellant (By Sri. M. Divakar Maddur, HCGP) AND:
Athik Ulla Aged 25 years, S/o Rehamathulla, R/at No.1-13, Sadbhavana Nagar, Gundya, Karkala Kasaba Village, Udupi-574 104. ... 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 dated 28.02.2019 passed in C.C.No.1009/2016 on the file of the II Additional Civil Judge and JMFC., Karkala, acquitting the respondent - accused for the offences P/U/S 279 and 304-A of IPC.
This Criminal Appeal is coming on for Orders, this day, the court delivered the following:
JUDGMENT This appeal has been preferred by the appellant/State, challenging the judgment and order of acquittal passed by the II Additional Civil Judge and JMFC, Karkala in C.C.No.1009/2016 dated 28.02.2019.
2. Heard the learned High Court Government Pleader (HCGP) for the appellant/State.
3. Though this case is listed for hearing on Interlocutory Application, the notice on respondent has been dispensed with and the main matter has been heard.
4. The case of the prosecution in brief is that on 14.01.2016 at about 4.30 p.m., when the complainant was going in his Maruthi Car bearing Registration No.KA-19-ME-2627 to Shringeri Temple along with his daughter and brother’s son. Accused who is rider of the Motorcycle bearing Registration No.KA-20-EG-2161 along with pillion rider came in a rash and negligent manner. At the Abbhas cutting curve Mala Ghati, Mala Village dashed against the car and fell on the ground and sustained grievous injuries. The pillion rider also sustained injuries and he was shifted to Karkala Government Hospital. Subsequently, the pillion rider succumbed to the injuries. On the basis of the case, a case has been registered in Crime No.18/2016 for the offences punishable under Sections 279 and 337 of IPC. Thereafter, a charge sheet has been filed.
5. The learned Magistrate took cognizance and secured the presence of the accused and after following the formalities, the plea of the accused was recorded. The accused pleaded not guilty and the case to be tried and as such, the trial was fixed.
6. In order to prove the case of the prosecution, prosecution got examined six witnesses as PWs.1 to 6 and got marked 20 documents as Exs.P.1 to 20. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C., by putting incriminating material as against him. Accused pleaded innocence and he has not led any defence evidence and has not got marked any documents.
7. After hearing the learned counsel for the parties, the Court below acquitted the accused. Learned HCGP challenging the legality and correctness of the acquittal of the accused, the appellant/State is before this Court in this appeal.
8. It is the contention of the learned High Court Government Pleader that the judgment and order of acquittal passed by the Court below is contrary to law, evidence and material placed on record. The learned trial Judge has come to a wrong conclusion that though there is material to show that the respondent/accused was rode his motorcycle in a rash and negligent manner and due to which the alleged accident has taken place. Without proper appreciation of the said evidence, the Court below has come to a wrong conclusion and wrongly acquitted the accused. It is his further submission that the trial Court has ignored to consider the evidence of the eyewitnesses and without appreciating the documents, has passed the impugned order, which resulted in miscarriage of justice. It is further submission that the manner in which the alleged accident has taken place has to be kept into view at the time of considering the material placed on record. But the trial Court, without looking into the said fact, has come to a wrong conclusion and acquitted the accused. On these grounds, he prayed to allow the appeal and to set aside the judgment and order of acquittal and prays to convict the accused.
9. I have carefully and cautiously gone through the submission made by the learned HCGP appearing for the appellant/State and perused the records.
10. In order to prove the case of the prosecution, prosecution got examined six witnesses as PWs.1 to 6. PWs.1 and 2 are the eyewitnesses to the alleged incident and they were traveling in the car bearing Registration No.KA-19-ME-2627. In their evidence, they had deposed that on the alleged date of incident i.e., on 14.01.2016, at about 3.00 p.m., they started to travel and when they were proceeding to Sringeri, at about 4.30 p.m., the motorcycle bearing Registration No.KA- 20-EG-2161 came in rash and negligent manner from the opposite direction and dashed against the said car near Abbhas cutting curve, Mala Ghati, Mala Village. As a result of the same, the rider of the motorcycle sustained injuries and blood was oozing from his nose and pillion rider has also sustained grievous injuries. Immediately the injured have been shifted in the same car to the Government Hospital at Karkala and a complaint was registered as per Ex.P.1. During the course of the cross-examination, other suggestions have been denied, but when it has been suggested that in Ex.P.5 - Photo, it has been shown that the motorcycle has been damaged on back side so also in Ex.P.4 - Seizer Mahazar that the car has been damaged on the front side. They have also admitted that in Ex.P.2 – Spot Mahazar, any portion of the motorcycle has been damaged and he has been also mentioned in it that front portion of the motorcycle has not been damaged. By taking into consideration, the said facts and circumstances, the Court below has come to the conclusion that the evidence of PWs.1 and 2 in not sustainable. As could be seen from the evidence of PW.3 – IMV Inspector, he has inspected both the vehicles and he has given a report as per Ex.P.5 – Photo and Ex.P.12(a) – Signature of PW.3 and in his cross- examination, he has deposed that when he had examined the vehicle that there was no damage on the front side of the motorcycle and there is damage only on the back side of the motorcycle. He further deposed that if any vehicle came from behind and dashed to the motorcycle, the above said damages may be occurred. Therefore, it is clarified that there was no head on collusion and the motorcycle would not have dashed against the car at all in the manner alleged by the prosecution.
11. Taking into the above facts and circumstances of the case, I am of the considered opinion that if the evidence of PWs.1 to 3 and damages which has been caused to both the vehicles is considered, the alleged accident could not have been taken place in the manner in which the prosecution is alleged. If really the motorcycle came from the opposite direction and hit to the car, then under such circumstances, definitely the motorcycle which comes from the opposite direction if dashed to the car, the front side portion of the motorcycle must get damaged. For the reason best known to prosecution, no explanation is forthcoming in this regard.
12. PW.4 is the Head Constable who received the complaint as per Ex.P.1 and registered the case and filed FIR as per Ex.P.13. PW.5 is the Investigating Officer who investigated the case in part. PW.6 is the Police Inspector who investigated the case and filed the charge sheet.
13. On going through the evidence, the case of the prosecution is not proved since, when the motorcycle coming from Sringeri in the opposite direction in a rash and negligent manner and dashed to the car, then if there is no damages on the front side of the motorcycle and no damages have been caused to any portion of the motorcycle that itself indicate the manner in which the accident alleged to have been taken place and said aspect has not been proved by the prosecution. In that light, the trial Court has come to a right conclusion and rightly acquitted the accused. There are no good grounds to interfere with the judgment of the trial Court and the judgment of the trial Court is in accordance with law. It is well settled proposition of law when once the trial Court after appreciating the evidence and material placed on record has exercised its discretionary power and acquitted the accused, Appellate Court cannot interfere with such order. In that light, the judgment of the trial Court deserves to be confirmed. Appeal is devoid of merits and the same is liable to be dismissed. Accordingly it is dismissed.
I.A.No.1/2019 filed for condonation of delay of 19 days, does not survive for consideration. Accordingly, the same is disposed of.
Sd/- JUDGE HA/-