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.186/2018 BETWEEN:
The State of Karnataka, By Traffic North Police Station, Mangaluru, represented by State Public Prosecutor, High Court Building, Bengaluru – 560 001. ... Appellant (By Sri. M. Divakar Maddur, HCGP) AND:
Rajesh, Aged about 30 years, S/o Krishnacharya, R/o Suma Nilaya, Shanthi Nagar, Kavoor Post, Mangaluru – 575 015. ... Respondent (Respondent served and unrepresented) 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 13.09.2017 passed in C.C. No.3688/2015 by the JMFC (III Court) at Mangaluru, thereby acquitting the respondent-accused for the offence P/U/S 279 and 304A of IPC.
This Criminal Appeal is coming on for Orders, this day, the court delivered the following:
JUDGMENT The present appeal is preferred by the appellant- State, being aggrieved by the judgment and order of acquittal passed by JMFC (III Court) at Mangaluru in C.C.No.3688/2015 dated 13.09.2017.
2. I have heard the learned High Court Government Pleader (HCGP) for the appellant-State.
3. Though this case is listed for hearing on interlocutory application, with the consent of the learned HCGP, the same is taken up for final disposal.
4. Brief facts of the case are that on 10.07.2015 at about 8.45 P.M., the accused being the driver of bus bearing Registration No.KA-19-D-2138 drove the same in a rash and negligent manner, endangering to the human life and dashed to the pedestrian by name Alex Quadres. Due to which, he sustained grievous injuries and shifted him to K.M.C. Hospital and there he succumbed to the injuries.
5. The main grounds urged by the learned HCGP are that PW.1-Rudalph Miskith is the eyewitness to the alleged incident and he has clearly deposed that the bus came in a high speed and ran over the right foot of the deceased, who was walking on the left side of the road. Immediately, he was admitted to the Hospital along with driver. This aspect has not been considered and appreciated by the trial Court. He further submitted that the evidence of PWs.2 and 4 also clearly goes to show that after the accident, they came to the spot and found that the Alex Quadres met with an accident and shifted him to the Hospital. He further submitted that the Court below by disbelieving the evidence of prosecution has come to a wrong conclusion and wrongly acquitted the accused. On these grounds, he prayed to allow the appeal and set aside the impugned order.
6. I have carefully and cautiously gone through the submission made by the learned HCGP and perused the records including the deposition made available by the learned HCGP.
7. In order to prove the case of the prosecution, prosecution got examined seven witnesses as PWs.1 to 7 and got marked the documents as Exs.P.1 to P.14. Thereafter, the statement of the appellant/accused was recorded under Section 313 of Cr.P.C and he denied the said and has not led any evidence.
8. In order to prove the case of the prosecution, prosecution has examined PW.1 who is the eyewitness to the alleged incident, he is also a complainant in this case. In his evidence, he has deposed that the deceased Alex Quadres sustained injuries in the accident occurred on 10.07.2016, at that time, he was standing in the rickshaw park at Kunjathbail near Devinagar. He has further deposed that bus bearing Registration No.KA-19-D-2831 came with a high speed and dashed to the Alex Quadres, who was proceeding on the left side of the road and due to which the left back side wheel of the bus moved on right feet of the deceased and thereafter, the bus was stopped on the right side of the road, immediately the deceased along with driver of the bus was shifted to K.M.C. Hospital and got him admitted. He has also stated that the Bus number and identified the accused during the course of his evidence. He has not supported the case of the prosecution fully and he has been treated as partly hostile. During the course of the cross-examination by learned Special Public Prosecutor that he has admitted the facts that the accident has taken place on 10.07.2016 and the vehicle number is KA-19-D-2831. During the cross-
examination, he has deposed that at the place of incident four auto drivers standing who had seen the accident after the sound was heard by them. Under the said stop at the place of the incident, he has also deposed that after Alex Quardres fell down and thereafter, back wheel of the said bus ran over the deceased. He has also admitted that the bus number has been erased and thereafter, the same has been re- written.
9. On close reading of the said evidence, the said witness has neither deposed the rash and negligent driving of the accused on the contrary, he has deposed during the cross-examination that, first he fell down thereafter, the left wheel of the bus has ran over on the right leg of the deceased. The manner in which the incident has taken place itself is very suspicious. If the bus was driven in a rash and negligent manner and dashed against the person who is pedestrian, then under such circumstances, the front side of the bus would have to hit in the first instance, then he has to fall. When it is an elevated road, how that he caught under the wheel of the bus is also not properly explained in this behalf.
10. Be that as it may, even PW.1 who has clearly admitted the fact that the bus number has been erased and thereafter, the number has been re-written. For what reason earlier bus number has been erased and new number has been written also creates suspicion. In the light of the discussion held by me above, the evidence of PW.1 does not repose any confidence of this Court to hold that the PW.1 is the eyewitness to the alleged incident. Insofar PWs.2 and 4 are concerned that they are not eyewitnesses to the alleged incident, they came to the spot after the accident and they were helping the deceased to take him to the K.M.C Hospital and they are also witnesses to the spot Mahazar and Seizer Mahazar at Exs.P.2 to P.3. Their evidence does not help the prosecution to progress any more. PW.3 is a Head Constable, who has deposed about receipt of complaint and registration of the case and issued FIR. PW.5 is a Police Inspector, who has partly investigated the case. PW.6 is the Manager of the bus bearing Registration No.KA-19-D-2138, who has deposed that on 10.07.2015 the accident was took place at Devinagar and accused was driver of the said bus, his evidence is also substantiated to prove the fact that accused drove the bus in rashly and negligently. PW.7 is an Investigating Officer, who deposed about conducting of the investigation and filing of charge sheet against the accused.
11. When the evidence of PW.1, who is said to be the complainant and eyewitness, has not trust worthy and he has not specifically deposed in his evidence about the rash and negligent act of the accused. The main ingredients are required to be proved under Sections 279 and 304A of IPC has not been proved. Under such circumstances, I feel that there are no good grounds made by the learned HCGP to interfere with the judgment of the trial Court. Though several grounds were urged, the said grounds do not have any force so as to prove the guilt of the accused.
12. On perusal of the judgment of the trial court, the trial court after considering the evidence placed on record and material got exhibited has come to the right conclusion that there is no perversity or illegality while passing the impugned order. The said judgment is liable to be confirmed and the same is confirmed. Hence, appeal is dismissed as devoid of merits.
Sd/- JUDGE HA/-