IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE K.N.PHANEENDRA CRIMINAL APPEAL No.2133/2016 BETWEEN STATE OF KARNATAKA BY KADUR P S REP. BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU – 01 ... APPELLANT (BY SRI HONNAPPA, HCGP) AND KUNDAN CHOWHAN S/O DHARMOJIRAO AGED ABOUT 26 YEARS R/O KUNDAN NILAYA SAHYADRI EXTENSION HUTTA COLONY B H ROAD, BHADRAVATHI SHIVAMOGGA DISTRICT-577 301 ... RESPONDENT (BY SMT.ASHWINI.O, ADVOCATE FOR SMT.G.SHARADA BAI, ADVOCATE) THIS CRL.A IS FILED UNDER SECTION 378(1) AND (3) OF CR.P.C PRAYING TO GRANT LEAVE TO FILE THIS APPEAL AGAINST THE JUDGEMENT OF ACQUITTAL AND ORDER DATED 20.06.2016 PASSED BY THE PRL. CIVIL JUDGE AND JMFC, KADUR IN C.C.NO. 886/2012 P/U/S 279,304A OF IPC.
THIS CRL.A COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT The State has come up with this appeal calling in question the judgment of acquittal dated 20.06.2016 by the Prl. Civil Judge and JMFC, Kadur, in C.C.No.886/2012 of the accused for the offence punishable under Sections 279 and 304(A) of IPC.
2. I have heard the arguments of the learned HCGP appearing for the appellant-State and the learned counsel for the respondent-accused and carefully perused the judgment of the trial Court and as well as the appreciation of oral and documentary evidence on record.
3. Learned HCGP submitted before the Court that there are eyewitnesses to the incident namely PWs.2 to 4 and 6 and they have categorically stated about the overt acts of the accused in riding the motorcycle in a rash and negligent manner and hit against the deceased Nagarajappa, who succumbed to the injuries sustained during the accident. The trial Court has not properly appreciated the oral and documentary evidence on record though the prosecution has proved the case beyond all reasonable doubt. He further contended that the sketch produced and marked before the Court coupled with the evidence of the prosecution witnesses clearly indicate that the accused has driven the vehicle in a rash and negligent manner causing accident. However, the trial Court has not appreciated the evidence on record in proper perspective. Therefore, the judgment of acquittal deserves to be interfered with by this Court.
4. Per contra, Smt. Ashwini O. appearing on behalf of Smt. Sharada Bai, learned counsel for the respondent strenuously submitted before this Court that though the eyewitnesses-2 to 4 and 6 have been examined but their evidence intrinsically contradict in nature. However, the evidence of PWs.2 and 3 do not clearly depict that they have actually seen the accident but it creates serious doubt that immediately after the accident they came to the spot and saw the injured on the road. She also contends that the case of the prosecution itself shows that the deceased was crossing the road. The sketch prepared by the Investigating Agency clearly discloses that almost in the middle of the road, the accident has occurred. When the evidence of the eyewitnesses is contradictory in nature, it creates serious doubt as to whether they actually saw the accident or went to the spot immediately after the accident. In that context, benefit of doubt should be given to the accused as rightly done by the trial Court. Therefore, there is no room for this Court to interfere with the judgment of acquittal passed by the trial Court.
5. Bearing in mind the above said submissions, this Court is required to re-appreciate the evidence on record. The appellate court shall follow the basic principles of criminal jurisprudence when an acquittal judgment is recorded by the trial Court. Normally, the appellate Court should not interfere with the said judgment unless it finds that appreciation of the evidence is so perverse and it is not in accordance with the recognized parameters of law. The judgment of acquittal in fact fortifies the innocence of the accused. It is the basic principle of law that unless guilt of the accused is proved beyond all reasonable doubt, he should be presumed as innocent. The judgment of acquittal further clarifies the innocence of the accused. Therefore, the appellate Court should be very careful while re- appreciating the evidence on record. If the appreciation of evidence by the trial Court may be erroneous but it is also one of the plausible view that has been taken by the trial Court on the basis of the materials on record. In such an eventuality also the appellate Court should not interfere with the judgment of the trial Court bearing in mind the above said principles of law. Now, let me consider and reappreciate the evidence on record.
6. The brief factual matrix as enumerated from the charge sheet papers projected by the prosecution before the trial Court are that on 14.04.2012 in the afternoon at about 1.15 p.m., the father of the complainant-PW1 by name Nagarajappa while crossing NH.206 road in front of the Mallikarjuna Talkies, at that time when he had almost reached the middle of the road it is alleged that the accused who was a rider of the motorcycle bearing registration No.KA 14 EB 0258 drove the vehicle in a high speed and in a rash and negligent manner endangered the human life dashed against the said Nagarajappa and due to the impact of the said accident, the deceased Nagarajappa sustained grievous injuries to his right leg and hands and he succumbed to injuries on the way to the hospital. The police have investigated the matter and submitted the charge sheet for the above said offences. The trial Court after hearing the respective parties, framed charges for the offence under Section 279 and 304(A) of IPC.
7. In order to establish the said offences, it is intrinsic upon the prosecution to prove the date and time of the accident, whether the accused drove the vehicle in a rash and negligent manner so as to endanger the human life and in that context he hit the deceased with his motor cycle and caused severe injuries and due to the impact of the injuries, the deceased died. There is no dispute whatsoever in this case even in the cross-examination of the so called eyewitnesses and other witnesses with regard to the occurrence of the accident itself. The accident occurred on that particular date and death of the deceased is also not in dispute. The only question is as to whether the accused was negligent or rash in driving the vehicle on that particular day. In this background, the evidence of the prosecution witnesses play a dominant role.
8. Before adverting to the evidence of these witnesses as could be seen from the sketch-Ex.P11 scene of offence prepared in this particular case by the Investigating Officer and also the photographs marked at Exs.P2 and P3, it would disclose that the accident occurred about 30 feet away from the road footpath which is almost in the middle of NH.206 situated in front of Mallikarjuna Talkies and a hotel by name Pooja was also situated abutting to Mallikarjuna Talkies. However, the accident occurred just in front of Mallikarjuna Talkies and not in front of the Pooja Hotel. It is the case of the prosecution that all the witnesses PWs.2 to 4 and 6 were consuming tea in front of Pooja Hotel. The marked portion in the photographs-Exs.P2 and P3 also would disclose that the accident has occurred almost in the middle portion of the road i.e., in front of Mallikarjuna Talkies. In this background, the evidence of PWs.2 to 4 and 6 has to be looked into. Of course, PWs.2 to 4 and 6 have supported the case of the prosecution. In their examination-in-chief they have stated that they were all standing in front of the Pooja Hotel and were having tea and at that time deceased Nagarajappa was crossing the road and the accused came and hit the deceased with his motorcycle. PW6, in fact, has stated that he was alone present at that particular point of time and saw the accident. He has also admitted that he came to the spot after the accident during the course of cross-examination. The other three witnesses though have stated that they were consuming tea near Pooja Hotel, they have stated about the distance between the place of incident and the said Pooja Hotel; but one of the witness has stated that he saw the accident from the distance of 6-9 feet and another witness has stated that the distance was 40-50 feet. But, in the sketch Ex.P11 and the photos Exs.P2 and P3 it clearly depicts that the accident has occurred in the middle of the road which is about 42 feet away from Mallikarjuna Talkies. It is the case of the prosecution that Pooja Hotel is situated abutting to the said Mallikarjuna Theatre. Therefore, it is not clear that whether the witnesses were standing in the Pooja Hotel; whether they were facing towards the road while consuming tea or facing towards inside portion of the Pooja Hotel; whether they can witness the incident from there is not clarified in the course of examination-in-chief of these witnesses. Of course, the incident occurred at the instance of the accused. Merely proving that the accused has dashed against the deceased it does not mean to show that he was riding his motorcycle in a rash and negligent manner. That has to be independently established by cogent and convincing evidence before the trial Court.
9. The trial Court, in fact, appreciating the evidence of three witnesses namely PWs.2 to 4 has come to the conclusion that these witnesses have intrinsically contradicted themselves with regard to the presence at the spot and as one person in his examination-in-chief has deposed that after consuming tea he came out from the said tea shop and in the cross-examination he has deposed that himself and PW.3 were consuming tea in front of the Pooja Hotel. The evidence of PWs.2 and 3 are contradictory to each other. It is evident that these witnesses have not able to see the accident so meticulously so as to say that the accused was rash and negligent in driving the vehicle.
10. As the incident happened in the middle of the road, it is also to be borne in mind at what time the deceased crossed the road; whether there were any signal lights or zebra crossing, which allow the public to cross the road at that particular point of time. These are all the important points that ought to have been elicited during the course of investigation, which is conspicuously absent. Admittedly, all the witnesses have stated that as it is a busy road (National Highway) traffic also would be there and when vehicles are moving continuously, crossing the road becomes difficult; untimely crossing of the road would cause accident.
11. Therefore, in the above said facts and circumstances, I do not find any strong reasons to say that appreciation of the evidence by the trial Court is perverse and erroneous so as to substitute the said appreciation by this Court. Therefore, no interference is called for by this Court with the judgment of acquittal recorded by the trial Court by giving benefit of doubt. The appeal is devoid of merits and the same is liable to be dismissed and it is accordingly dismissed.
Sd/- JUDGE TL