IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE B.A. PATIL CRIMINAL APPEAL NO.183/2018 Between:
The State of Karnataka By Station House Officer Kaup Police Station Rep. by the State Public Prosecutor High Court Building Bengaluru-01. … Appellant (By Sri M. Divakar Maddur, HCGP) And:
Kenchana Gowda Patil Aged about 32 years S/o. Nagana Gowda Patil Nadukana Oni Thotavagi Village Dharwad Taluk & District -580 001. …Respondent (Respondent served & unrepresented) This Criminal Appeal is filed under Section 378(1) and (3) of the Cr.P.C., praying to grant leave to appeal against the judgment and order of acquittal dated 01.09.2017 passed by the II Additional Civil Judge and JMFC, Udupi in C.C.No.339/2012 acquitting the respondent-accused for the offence p/u/s 279 and 304-A of IPC.
This Criminal Appeal coming on for Orders this day, the Court delivered the following:
J U D G M E N T This appeal is preferred by the State challenging the judgment and order of acquittal passed by the II Additional Civil Judge and JMFC, Udupi dated 01.09.2017 in C.C.No.339/2012.
2. I have heard the learned High Court Government Pleader.
3. The respondent though has served with notice, he has remained absent.
4. I.A.N.1/2018 has been filed for condonation of delay of 25 days. It is also accompanied with affidavit. By accepting the cause shown therein, I.A.No.1/2018 is allowed. The delay of 25 days in filing the appeal is condoned.
5. Though this case is posted for hearing on Interlocutory Application, with the consent of the learned High Court Government Pleader, the same is taken up for final disposal.
6. The brief facts as per prosecution are that on 07.11.2011 at about 10.15 p.m, the accused being the driver of the Mini Bus bearing registration No.KA-25- TRD-4475 drove the same in a rash and negligent manner so as to endanger human life and went to the extreme right side of the road and dashed to the motorbike bearing registration No.KA-20-Q-1830, which was coming from Mangaluru. As a result of the same, the deceased sustained grievous injuries and he has been shifted to the hospital and he died in the hospital on 28.11.2011 at about 10.10 a.m.
7. It is the submission of the learned High Court Government Pleader that the trial Court without properly appreciating the oral and documentary evidence on record has erroneously passed the impugned judgment. PWs.1 and 2 are eyewitnesses to the alleged incident and they have also witnessed the said accident, without properly appreciating their evidence has come to a wrong conclusion. He further submitted that the impugned order is liable to be set aside and the accused has to be convicted.
8. I have carefully and cautiously gone through the submission made by the learned High Court Government Pleader and perused the records.
9. The learned High Court Government Pleader also made available the evidence and other important documents. As could be seen from the case of the prosecution, in order to prove the case, the prosecution got examined PWs. -1 to 4 and got marked Exhibits P.1 to P.9. Thereafter, the accused was examined under Section 313 of Cr.P.C., by putting incriminating material as against him. He denied the same. After hearing the learned counsel appearing for the parties, the impugned judgment of acquittal came to be passed. Challenging the illegality and correctness, the State is before this Court.
10. PW.1 is the complainant as well as eye witness to the alleged incident. In his evidence he has deposed that the deceased died in an accident on 07.11.2011 at about 10:15 PM and the deceased was proceeding on his two-wheeler in front of him and when they came near Kapu Forest Gate, a mini bus came and all of a sudden he took a turn on right side and dashed to the two-wheeler on which the deceased was proceeding. On the next date of accident, the police have visited the hospital. As the deceased was not in a good condition to give statement, the police have taken the statement of PW.1. Thereafter, he has filed a complaint as per Exhibit P.1. During the course of cross-examination, he has deposed that he has gone to the place of accident and alleged that the accident has taken place at the distance of 10 feet from the place where he was standing and no other material has been elicited. PW.2 is also another eye-witness to the alleged accident. He has deposed that on 07.11.2011 at about 10.00 p.m., when he was proceeding near forest gate, a mini bus came with great speed and by overtaking he took a right turn towards Katapadi divider and he dashed to his ongoing two-wheeler and he stopped his vehicle and found that the deceased has sustained grievous injuries and he along with other persons, shifted the deceased to the hospital. At that time, it is the accused, who was driving the said vehicle with great speed. During the course of cross-examination, he has deposed that he came to the spot after the accident. Except that, nothing has been elicited from the eyewitness.
11. On close reading of the evidence of PWs.1 and 2, it is seen that though they are eyewitnesses but nowhere in their evidence, they have deposed that the alleged accident has taken place due to rash and negligent act of the respondent/accused. In order to bring home the guilty of the accused under Sections 279 and 304(A) of IPC, the prosecution has to establish the fact that the driver of the said mini bus has drove the same rashly and negligently so as to endanger human life and he has not taken a reasonable care which he ought to have taken in ordinary course. But the main ingredients depicts that which is very much necessary for the purpose of proving the case has not been established through these two witnesses.
12. PW.3 is the hearsay witness and he has deposed that receiving information from the hospital he has gone to the hospital and taken the statement of PW.1 and on the basis of the said complaint he has registered the case and issued FIR as per Exhibit P.8.
13. PW.4 is an Investigating Officer, who has partly investigated the case by recording the statement of Cws.2, 3 and other witnesses. He has also substantiated the case of the prosecution. PW.5 is the Investigating Officer who investigates the case and filed the charge sheet.
14. On going through the evidence of PW.1, 2 and other witnesses, it disclose that though the prosecution is utterly failed to prove the fact that the alleged accident has taken place because of rash and negligent act of the respondent/accused, the material fact has also not been proved then the Court below after considering the said facts and circumstances has rightly come to the conclusion and has rightly acquitted the accused.
15. I have carefully and cautiously gone through the judgment of the trial Court. After discussing all the evidence and materials placed on record, the trial Court has come to a right conclusion. The said judgment is neither illegal nor erroneous and does not require interference of this Court.
As this case is devoid of merits, the same is liable to be dismissed and accordingly, the appeal is dismissed.
Sd/-
JUDGE nms