IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.66 OF 2019 BETWEEN:
The State of Karnataka By Traffic East Police Station, Mangaluru, Represented by State Public Prosecutor, High Court Building, Bengaluru-560 001.
...Appellant (By Sri. Thejesh P, HCGP) AND:
P.C.Ahammad Kunhi S/o Late Chayyabba, Aged about 67 years, R/o D.No.5-87/1, Paneer House, Kotekar, Deralkatte, Mangaluru-575 001.
(Respondent Served and unrepresented).
...Respondent This Criminal appeal is filed under Section 378(1) and (3) of Criminal Procedure Code, praying to grant leave to appeal against the judgment and order of acquittal dated 27.08.2018 passed in C.C.No.2170/2017 on the file of the III-JMFC, Mangaluru acquitting the respondent-
accused for the offence punishable under Section 27, 304(A) of IPC.
This Criminal appeal coming on for Orders, this day, the Court made the following:
JUDGMENT Heard learned HCGP for the appellant. Though notice is served, the counsel for the respondent remained absent.
2. Though this case is listed for hearing on interlocutory application, with the consent of learned HCGP, the same is taken up for final disposal.
3. The present appeal has been preferred by the State challenging the judgment and order of acquittal passed by JMFC (III Court), Mangaluru, in C.C.No.2170/2017 dated 27.08.2018, whereunder accused was acquitted for the offence punishable under Sections 279 and 304(A) of IPC.
4. The gist of the case of the prosecution is that on 08.07.2016 at about 5.20 p.m., accused being the driver of the school bus bearing Registration No.KA-19- B-3447 drove the same in a rash and negligent manner so as to endanger the human life and hit the electrical pole. Due to the impact, the deceased who was in bus sustained head injuries, as a result of the same she succumbed in the hospital. On the basis of the complaint, the case has been registered.
5. It is the submission of the learned HCGP for the appellant that the judgment of acquittal passed by the Court below is contrary to law and facts of the case. It is his further submission that PW2 is the eye witness to the alleged witness and has supported the case of the prosecution. The trial Court without properly appreciating the said evidence has acquitted the accused. It is his further submission that PW4 is the panch witness and he has also supported the case of the prosecution. It is his further submission that PW5 is the attender. He identified the bus as well as the accused and even the accused has not disputed the fact that on the date of alleged accident, he was driving the said bus. It is the further submission of the learned HCGP that though there is ample material to connect the accused to the alleged crime, without considering the said evidence, the trial Court has passed the impugned judgment of acquittal. On these grounds, he prays to allow the appeal and to set aside the impugned judgment of the trial Court.
6. I have carefully and cautiously gone through the submissions made by learned HCGP and he has made available the deposition and documents exhibited. In order to prove the case of the prosecution, prosecution got examined nine witnesses and got marked 15 documents. It is the specific contention of the learned HCGP that PW2 is the eye witness and has supported the case of the prosecution and PW-1- complainant is also working as a teacher in the said school and she has also supported the case of prosecution. As could be seen from the evidence of PW1, in her evidence she has deposed that she knows the deceased Bhavani. After finishing her work, she was proceeding in a city bus at about 4.45 p.m and there she noticed the gathering of the people and immediately alighted from the city bus and went and saw that the said Bhavani had sustained injury to her head and immediately shifted her to A.J. Hospital and subsequently, she came to know that she died due to injuries. She further deposed that she did not witness the driver of the bus and its registration number on the spot and she did not know the reason for the death of deceased Bhavani. Further, she has denied the contents of the Ex.P1 and also she has deposed that she has also signed on Exs.P2 to Ex.P4. She is treated as partly hostile and during the course of cross-
examination by the learned Additional Public Prosecutor, the said suggestions have been denied. PW2 is the eye witness to the alleged incident. He has deposed that on 08.07.2016 at about 5.20 p.m., he was proceeding from Bidarnakatte towards Sharbath Katte behind the bus bearing No.KA-19-B-3447, when he reached near Bhadrakali Temple, the driver of the bus drove the bus in a rash and negligent manner and abruptly took a left turn and as a result, the said bus hit to the electric pole and at that time, the inmates of the bus made a hue and cry and immediately, the driver of the bus stopped the bus and PW2 also stopped his vehicle and went and saw the girl has sustained injuries, immediately he shifted the deceased to the A.J.Hospital. Thereafter, he came to know that the deceased has succumbed in the hospital. He has further deposed that the alleged accident has taken place due to excessive speed and carelessness and he has given statement before the police. During the course of cross-examination, all the suggestions which has been made have been denied. PW3 is also the eye witness to the alleged incident. He has not supported the case of the prosecution and he has been treated as hostile. The prosecution further got examined mahazar witness as PW-4. He has identified his signatures on the spot mahazar and sketch, which are marked as Ex.P2(b) and P3(b). During the course of cross- examination, nothing has been elicited so as to discard the evidence of PW-4. PW5 is the attender. In his evidence, he has deposed that he has been authorized to get the bus released, which has met with an accident. He has further deposed that he do not know, who has drove the said bus at the time of alleged accident and PW5 has been treated as partly hostile and nothing has been elicited from the mouth of PW-5 to prove the prosecution case. PW-6 is the Head Constable, who has received the FIR and dispatched the same before the Jurisdictional Magistrate. PW7 is ASI, who has received an intimation from A.J.Hospial about the death of the deceased. PW8 is the student, who was studying in the said school and was the eye witness to the alleged incident. He has not supported the case of the prosecution and he has been treated as hostile. PW9 is the investigating Officer, who investigated the case and filed the charge sheet against the accused.
7. On close reading of the evidence of all these witnesses, PW3 and PW5 though they are eye witnesses to the alleged incident they have not supported the case of prosecution. Though PW2 is the eye witness to the alleged incident, in his evidence he has deposed that the bus was driven with a high speed and carelessly but no where he has stated that the alleged accident has taken place due to rash and negligent act of the accused- respondent. It is well settled proposition of law that in order to bring home the guilt of accused under Sections 279 and 304(A) of IPC, the prosecution has to clearly establish that alleged accident has taken place due to rash and negligent act of accused and accused alone. Even if the evidence of PW2 if perused, it does not repose any confidence to the fact that he was present at the place of accident. It is the specific case made out by the prosecution that on the date of the alleged accident, accused drove the bus in a rash and negligent manner and dashed to the electric pole. Due to the impact, the head of the deceased was hit to the electric pole and she sustained grievous head injuries. If the deceased was traveling inside the bus, how that the head of the deceased came in contact with the electric pole has not been explained by the prosecution. From the factual matrix, if it is seen, it appears that the said deceased was peeping outside from the window of the bus as a result of the same, head came in contact with the electric pole. Even if the case of the prosecution is accepted as it is, if bus hits to the electric pole then under such circumstances the electric pole will not come in contact with a person who is sitting inside the bus and even the IMV report, which has been marked at Ex.P8 also clearly goes to show that rear left side end body dented, except this damage no other damages are found on the vehicle, that itself goes to show that the alleged accident has not taken place in the manner in which it has been made out. It is well settled principle of law that the prosecution has to establish its case as it contended and it cannot be diverted and no presumption can be drawn in this behalf.
8. Taking into consideration the above facts and circumstances, that too, when PW-8-the student, who was traveling inside the bus has not supported the case of the prosecution, then under such circumstances, the learned HGCP has not made out a good ground so as to interfere with the judgment of the trial Court.
9. I have carefully gone through the judgment of the trial Court. The trial Court after considering the evidence and materials placed on record has come to the right conclusion and it is not perverse or illegal so as to set aside the same.
10. Keeping the above facts and circumstances, the appeal is devoid of merits and same is liable to be dismissed and accordingly, it is dismissed.
In view of the dismissal of the main appeal I.A.No.1/2019 does not survive for consideration and same is dismissed.
Sd/- JUDGE ag