IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.983 OF 2016 BETWEEN:
State of Karnataka By Ajjampura Police Station, Represented by SPP High Court of Karnataka, Bengaluru-577 547.
(By Sri.Divakar Maddur, HCGP) AND:
I.H.Shekharanaika, Aged 30 years, Son of Harishchandra Naika, R/at Ittige Village, Tarikere Taluk-577 228.
(By Sri. P.V.Manjunatha, Advocate) ...Appellant ...Respondent 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 of acquittal dated:17.02.2016, passed by the Civil Judge and Addl. JMFC., Tarikere in C.C.No.418/2014, thereby acquitting the respondent/accused for the offences punishable under Sections 279, 337, 304A of IPC r/w 187 of I.M.V act.
This Appeal coming on for Admission, this day, the Court made the following:
ORDER Challenging the acquittal of the present respondent for the offences punishable under Sections 279, 337 and 304(A) of the Indian Penal Code, 1860 read with Section 187 of the Indian Motor Vehicles Act, 1988 (hereinafter for brevity referred to as ‘IPC’ and ‘M.V. Act’, respectively) by the Civil Judge and Additional J.M.F.C., Tarikere (hereinafter for brevity referred to as “trial Court”) in C.C.No.418/2014, dated 17.02.2016, the State has preferred this appeal.
2. Though the matter was listed for admission, with the consent of both side, the matter is taken up for final disposal.
3. The summary of the case of prosecution is that on 26.03.2014 at about 8.00 p.m., within the limits of complainant-Police Station between Tarikere and Ajjampura on a public road at Amruthamahal Kaval, the accused drove the Tractor and Trailer bearing registration No.KA-18-TA-1714/1715 in rash and negligent manner, so as to endanger human life and dashed to Maruthi Omni van bearing registration No.KA- 18-P-2405, causing grievous injuries to one Sri. Umesh, who later on succumbed to it and also caused injuries to CW.1 shankar, who was traveling in the said vehicle and after the accident without getting any medical aid to the injured and without even informing to the nearby police station, the accused left the place, as such, the accused has committed the offences punishable under Sections 279, 337, 304(A) of IPC read with Section 187 of the M.V. Act.
4. Since the accused pleaded not guilty, trial was held, wherein the prosecution examined eight witnesses from its side as PWs.1 to 8 and got marked documents from Exs.P-1 to 14. Neither any witness was examined nor any document was marked as exhibit from the defence side.
5. The trial Court in its impugned judgment acquitted the accused for the alleged offences. It is against the said judgment, the State has preferred this appeal.
6. Heard arguments from both side and perused the material placed before this Court including the Lower Court Records.
7. PW.1(CW.1) and PW.2(CW.2) in their evidence have stated that they were travelling along with deceased Umesh in a Maruthi Omni Van bearing registration No.KA-18-P-2405 on the date of alleged incident which occurred to them on 26.03.2014 at about 8.00 p.m. near Amuthamahal Kaval. A Tractor coming from the opposite side due to its rash and negligent driving by the driver, dashed to the car in which they were travelling. In the said accident Umesh sustained grievous injuries, to which he succumbed and both of them also sustained injuries in the accident.
Both these witnesses in their examination-in-chief itself have stated that they have not seen the driver of the tractor. Even after treating PW.1 as hostile, by cross examining him, the prosecution could not elicit the identity of the driver of the tractor, which according to them was the offending vehicle. Both these witnesses have though reiterated in the cross-examination from the side of the accused that accident in question has occurred due to the fault of the driver of the tractor, but nowhere in their evidence they have given atleast any clue about the identity of the driver of the tractor.
8. PWs.3 and 4 have stated that the scene of offence panchanama was prepared in their presence on the next day of the accident, in which panchanama they have identified their signatures. PW.3 has also stated that the alleged offending vehicle i.e., the tractor was also seized in his presence by drawing panchanama as per Ex.P-5. The said seizure of the tractor is further corroborated by the evidence of PW.4, who has also stated that by drawing the seizure mahazar as per Ex.P- 5, the offending vehicle which was a tractor and trailer was seized in his presence.
9. PW.6, the owner of the alleged offending tractor has stated that the accused was the driver of the said tractor for a period of six months.
10. PWs.7 and 8 are the Investigating Officers in this matter. PW.7 has stated about taking up further investigation in the matter from the Head Constable. After getting the information that the incident also involves the death of one of the inmates of the car under the accident, he handed over further investigation to PW.8.
11. PW.8, the then Circle Police Inspector, Tarikere Circle, has stated about he continuing the investigation and filing charge sheet in the case.
According to PW.8, it was the accused who was the driver of the alleged offending vehicle at the time of accident.
12. Learned High Court Government Pleader in his arguments submitted that the evidence of PWs.1 and 2 clearly go to establish that the accident which is not in dispute has occurred at the fault of the driver of the tractor, which aspect the trial Court has not appreciated. Thus, it ended in acquittal of the accused, which is erroneous.
13. Per contra, learned counsel for the respondent in his arguments submitted that even though the accident in question, involvement of tractor and trailer and maruthi omni car, the death of injured Umesh and injury to PW.1 are all not in dispute, but there is no evidence to show that it was the accused who was driving the tractor at the time of accident, as such, the trial Court has rightly pronounced the judgment of acquittal.
14. As analysed above, PWs.1 and 2 are shown to be the injured passengers in the maruthi omni van, which is said to have involved in the accident as a victim vehicle. However, neither of these witnesses have anywhere stated that it was the accused who was driving the tractor at the time of alleged accident. PW.1 at more than once place in his evidence, has specifically stated that he has not seen the accused driving the tractor at the time of accident. Both PWs.1 and 2 maintained their stand saying that they did not know as to who was driving the tractor at the time of accident. Even after treating PW.1 as hostile and cross examining him, the prosecution could not elicit any detail about the driver of the alleged offending vehicle from the witness. Thus, among eight witnesses examined by the prosecution, it was only PWs.1 and 2 who were projected by it as injured eye witnesses to the accident and both these witnesses have not stated anything about the accused in their evidence.
15. The evidence of PWs.3, 4 and 5 speaks about the drawing of scene of offence panchanama as well as seizure panchanama of the alleged offending vehicle, which are not in dispute, only would to go show about the place of occurrence of the accident and the alleged involvement of tractor in question. However, their evidence would be of no assistance to the prosecution in proving the alleged guilt against the accused.
16. The evidence of PWs.7 and 8 being the evidence of Investigating Officers, except stating that they have drawn seizure panchanama, collected IMV report, post mortem report and filing charge sheet, neither of these witnesses have deposed as to how and on what basis they came to the conclusion that it was the accused and accused alone who was driving the tractor at the time of accident. Even the evidence of PW.6, who admittedly is the owner of the alleged offending vehicle would be of no help to the prosecution for the reason that the said witness except stating that the accused was the driver of the tractor has not stated that as on the date and time of the accident it was the accused who was driving the tractor. Further, in his cross-examination, he has stated that the accused was the driver of the said tractor only for a period of six months. However, whether the date of accident falls within the said period of six months, has also not been elicited from the witness. Thus, the important details which was required to be elicited from the mouth of PW.6, the prosecution has failed to elicit from the witnesses.
17. Consequently, even though the accident and the death of Umesh and injury to CW.1 could able to be established by the prosecution, the doubt as to who was driving the tractor as at the time of accident remains unanswered. Naturally this benefit of said doubt should go to the accused and extending the same to him, the trial Court has rightly pronounced the judgment of acquittal. Hence, I do not find any reason in interfering with the said judgment of acquittal. Accordingly, I proceed to pass the following order:
ORDER The Appeal stands dismissed as devoid of merits.
The judgment of acquittal passed by the learned Civil Judge and Additional JMFC, Tarikere in C.C.No.418/2014, dated 17.02.2016 is confirmed.
The Registry is directed to transmit a copy of this judgment to the trial Court immediately along with lower Court records.
Sd/- JUDGE BMC