IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.63/2019 BETWEEN:
The State of Karnataka By Sub-Inspector of Police, Konaje Police Station, Konaje, Bengaluru Rep. by State Public Prosecutor, High Court Building, Bengaluru-01. ... Appellant (By Sri M. Divakar Maddur, HCGP) AND:
Raghuram Shetty S/o Vittal Shetty, Aged about 36 years, R/at Gopal Kodi, Ajebailu, Ira Village, Bantwal Taluk-574 211. ... Respondent (By Sri Rathan B.V., Advocate for Sri Prasanna V.R., Advocate) This Criminal Appeal is filed under Section 378(1) & (3) of Cr.P.C., praying to grant leave to appeal against the judgment and order of acquittal dated 03.07.2018 passed in C.C.No.292/2016 by the Principal Civil Judge and JMFC, Bantwal, thereby acquitting the accused/respondent of the offences P/U/S 279 and 304-A of IPC.
This Criminal Appeal is coming on for Final, Hearing this day, the Court delivered the following:
JUDGMENT The present appeal has been preferred by the appellant/State being aggrieved by the judgment and order of acquittal passed by the Principal Senior Civil Judge and JMFC., Bantwal, Dakshina Kannada in C.C.No.292/2016 dated 03.07.2018.
2. I have heard the learned High Court Government Pleader for the appellant/State and the learned counsel for the respondent/accused.
3. Though this appeal is listed for hearing on interlocutory application, with the consent of the learned counsel and learned HCGP appearing for the parties, the same is taken up for final disposal.
4. The case of the prosecution in brief is that on 07.06.2016 at about 2.30 p.m., the deceased Purushothama Shetty was proceeding on Activa Honda Scooter bearing Reg.No.KA-14-W-7179 from Thaudugoli Cross to Thaudugoli.
When he reached near Korikatte at Naringana Village, the accused Raghuram Shetty being the driver of the bus bearing Reg.No.KA-19-D-3167 drove the said bus in a rash and negligent manner to endangering the human life and dashed against the Activa Honda Scooter, as a result of the same, the deceased sustained grievous injuries and succumbed to the injuries on the spot. On the basis the complaint, a case has been registered against the accused and charge sheet has been filed for the offences punishable under Sections 279 and 304(A) of IPC.
5. It is the submission of the learned HCGP for the appellant/State that the judgment and order of acquittal passed by the trial Court is contrary to the evidence and material placed on record. Though, PWs.2 and 3 are the eyewitnesses to the alleged incident and they have specifically deposed about the rash and negligent act of the accused, the impugned order has been passed erroneously and the respondent/accused was acquitted. He further submitted that the trial Court has erred in not applying the doctrine of Res Ipsa Loquitur as the prosecution had established the factual aspects of the accident by looking Ex.P.10-Post Mortem Report, Ex.P.8-Sketch and Motor Vehicle Examination Report issued by PW.6. It is his further submission that the judgment and order of acquittal passed by the court below is unjust and not sustainable in law. On these grounds, he prayed to allow the appeal and to set aside the impugned judgment and order of acquittal.
6. Per contra, learned counsel for the respondent/accused vehemently argued and submitted by justifying the judgment passed by the trial Court. He further submitted that though PWs.2 and 3 are the eyewitnesses, but their presence at the place of incident is not justifiable and in their evidence, they have categorically deposed that they came to the place of the incident only after the said accident. Even they have deposed that Ex.P.2-Spot Mahazar was recorded in the police Station and not on the spot and they do not know the contents of Ex.P.2. PW.4 is also an eyewitness but he has not supported the case of the prosecution, his evidence is not credible and trust worthy so as to convict the accused. It is his further submission that Ex.P.8-Sketch clearly go to show that the deceased himself was riding the motor cycle in a rash and negligent manner at the time of the alleged incident. On these grounds, he prayed to dismiss the appeal.
7. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records.
8. In order to prove the case of the prosecution, prosecution got examined 8 witnesses as PW.1 to PW.8 and got marked documents at Exs.P.1 to P.16.
9. PW.1 is the complainant. In his evidence, he has deposed that he knew the deceased Purushothama Shetty and on 07.06.2016 when he was travelling in the bus bearing Reg.No.KA-19-D-3167 and when the said bus came near Thaudugoli Junction, the said driver of the bus drove the bus in a rash and negligent manner and at about 2.30 p.m. dashed against the Activa Honda and the rider of the Activa Honda Motorcycle breathed his last falling on the right side back wheel of the bus. Thereafter, he has filed the complaint as per the Ex.P.1 and he has also spoken with regard to drawing of spot mahazar and seizure mahazar of the said vehicle. During the course of cross-examination, he has deposed that the place of accident was 10 meter away from place of his shop. He has further deposed that in his evidence, there might have been a bus stop little away from the accident spot and the driver of the bus might have taken passengers in the said bus stop. He has further admitted that the road is curve in nature and as there are big trees, it is difficult to visibility of the vehicles coming from the opposite direction. He has further deposed that he do not remember who was the driver of the bus and he had seen the accused for the first time before the Court. Except that, nothing has been elicited to discard the evidence of this witness.
10. PW.2 is also an eyewitness to the alleged incident. In his evidence, he has deposed that on 07.06.2016, he was also travelling in the said bus and the said bus was driven in a high speed and dashed to the Activa Honda came from opposite direction and as a result of the same, the rider of the motorcycle died by falling on the back right side wheel of the bus. He has further deposed that the driver of the bus turned the same carelessly as a result of the same, the accident has taken place. During the course of the cross-examination, he has admitted that the driver of the bus stopped the bus took the passengers and the road was in zigzag manner at the place of accident and he came to know about the accused only after hearing the accident sound. He also admitted that in the said turn, nobody can see the vehicle coming from the opposite direction. He further deposed that he has not witnessed the accident and immediately, after the accident vehicles were removed from the said place.
11. PW.3 is also an eyewitness to the alleged incident. He has reiterated the evidence of the PW.2. In his cross-examination he has deposed that only after the accident he came to the place of the accident. Other suggestions have been denied.
12. PW.4 is also an eyewitness to the alleged incident. He has also witnessed to Ex.P.2-spot mahazar. He has not supported the case of the prosecution and has treated hostile. Even during the course of cross- examination, nothing has been elicited so as to substantiate the case of the prosecution.
13. PW.5 is owner of the bus bearing Reg.No.KA-19- D-3167. He has deposed that he came to know about the accident when he received the notice from the police and at that time, the accused was driver of the said bus. PW.6 is the Head Constable, who registered the complaint and issued the FIR as per Ex.P.14. PW.7 is the Investigating Officer who investigated the case and after completion of investigation filed the charge sheet against the accused. PW.8 is also an Investigating Officer who partly investigated the case.
14. The evidence and materials placed on record discloses that though PWs.1, 2 and 3 are the eyewitnesses to the alleged incident, in their evidence they have specifically stated that the driver of the bus has driven the bus rashly and negligently. Though, in the evidence of the PWs.1, 2 and 3, they have deposed that the said bus was driven with high speed and careless but they have not deposed that the said bus was driven rashly and negligently which attracts the provisions of Sections 279 and 304A of IPC. Under the said facts and circumstances, the evidence of PWs.1 to 3 do not support the case of the prosecution.
15. Be that as it may. Even as could be seen from the evidence of PW.1, in his cross-examination he has deposed that he saw the driver of the bus for the first time before the Court, if really, he was sitting by the side of the driver, then under such circumstances, definitely he would have identified the accused who was the driver of the said bus. In the absence of such evidence, reliability of PW.1 is not acceptable. Insofar as PW.2 is concerned, he has deposed that during the course of cross-examination, he has not seen the accident, he has come to the place of the incident only after the accident occurred. In the cross- examination of PW.3, he has also deposed that he came to the spot only after the accident. Under such circumstances, the evidence of PWs.2 and 3 are also not acceptable and reliable in law. Even, as could be seen from Ex.P.8-Sketch, admittedly, the bus was coming from Thaudugoli Junction to Thaudugoli Cross and the said motorcycle which was driven by the deceased was coming from Thaudugoli cross to Thaudugoli Junction. On close reading of Ex.P.8-Sketch, the said accident has occurred on the extreme left side of the road. The Activa Honda motorcycle has come to the extreme right side and hit to the bus, which was coming from the opposite direction and even the bus is also shown on the extreme left side of the road. Even, all the witnesses have admitted the fact that the place of incident is zigzag curve in nature, then under such circumstances, it cannot be attributed that the alleged accident has taken place due to rash and negligent act of the respondent/accused.
16. Under the facts and circumstances of the case, the trial Court after discussing all the materials in detail has come to the right conclusion and has rightly acquitted the accused.
17. I have carefully and cautiously gone through the judgment and order of the trial court, the judgment is neither perverse nor illegal the same deserves to be confirmed. Accordingly, the appeal is devoid of merits and the same is liable to be dismissed. Accordingly, criminal appeal is dismissed.
In view of the dismissal of the appeal, I.A.No.1/2019 for condonation of delay does not survive for consideration, the same is dismissed.
Sd/- JUDGE HA/-