IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY 2019 BEFORE:
THE HON’BLE MR.JUSTICE MOHAMMAD NAWAZ CRIMINAL APPEAL No.1989 OF 2016 BETWEEN STATE OF KARNATAKA, BY BELTHANGADY POLICE STATION, REP. BY SPP, HIGH COURT BUILDING, BANGALORE-560 001.
(BY SRI. DIVAKAR MADDUR, HCGP) AND SRI. B.S.KUMAR, AGED ABOUT 31 YEARS, S/O. SOMAIAH, R/AT BANKENHALLI VILLAGE, VANAKAL POST, MUDIGERE TALUK, CHIKKAMANGALURU DISTRICT-577 132.
... APPELLANT ... RESPONDENT (BY SRI. PRASANNA B.R., ADVOCATE) * * * THIS CRL.A IS FILED U/S 378 (1) AND (3) OF CR.P.C. PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 16.08.2016 PASSED IN C.C. NO.56/2014 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, BELTHANGADY ACQUITTING THE RESPONDENT-ACCUSED OF THE OFFENCES P/U/S 279, 304A OF IPC.
THIS CRIMINAL APPEAL COMING FOR ADMISSION, ON THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is preferred by the State challenging the judgment and order of acquittal passed by the Prl. Civil Judge, JMFC, Belthangady in CC No.56/2014, thereby acquitting the accused-respondent for the offences punishable under Sections 279 and 304-A of IPC.
2. I have heard the learned HCGP appearing for the State and the learned counsel appearing for the accused-respondent.
3. It is the case of the prosecution that on 02.02.2013 at about 8.15 p.m., the deceased by name Ashok was riding the motor cycle bearing registration No.KA-19-ED-8291 along with a pillion rider (PW1) from Belthangady towards Ujire. When they reached near Benaka Hospital in Ujire Village, the handle of the motor cycle hit against an oncoming auto rickshaw which was coming from Ujire, due to which, the rider and the pillion rider of the motor cycle fell on the road. At that time, a lorry bearing registration No.KA-18-A-4748 which was moving from Belthangady towards Ujire, driven by the accused in a rash and negligent manner, ran over the rider of the motor cycle, on account of which, he suffered grievous injuries and died at the spot.
4. A complaint was lodged by PW1 as per Ex.P1 and a case was registered against the accused for the offences punishable under sections 279, 337, 304-A of IPC and sections 134 (a) and (b) read with Section 187 of I.M.V. Act. After completion of the investigation, charge sheet was filed against the accused for the offences punishable under Sections 279 and 304-A of IPC. The accused pleaded not guilty to the accusation made against him and claimed to be tried. Before the trial court, the prosecution got examined PWs.1 to 7 and got marked documents Exs.P1 to P13. The defence of the accused was one of total denial. However, he has not led any evidence on his behalf.
5. The Trial Court after considering the evidence and material on record acquitted the accused by judgment and order dated 16.08.2016 passed in C.C. No.56/2015.
Aggrieved by the aforesaid judgment and order passed by the trial court, the present appeal has been preferred by the State.
6. It is the contention of the learned HCGP that PW1 is the eye witness to the incident in question and he has deposed that the accused was driving the lorry in a rash and negligent manner and even though he has seen the deceased fallen on the road, he ran over the deceased, on account of which, the deceased has suffered grievous injuries and succumbed to the injuries at the spot. He submits that the trial court by pointing out minor infirmities in the prosecution case, has erroneously acquitted the accused. He submits that even the owner of the lorry who has been examined as PW4 has supported the case of prosecution and therefore it has been established by the prosecution that the accused was driving the lorry at the time of the accident. He further submits that according to IMV Report, which is marked as per Ex.P3 and from the evidence of PW3, it is established that there was no mechanical defect and therefore, he submits that the trial court was not justified in acquitting the accused.
7. The learned counsel for the respondent on the other hand submits that the prosecution has not established the rash or negligent act of the accused in causing the accident. He submits that even according to PW1, the deceased who was riding the motor cycle was trying to overtake the lorry and the handle of the motor cycle hit against the oncoming auto rickshaw and the deceased fell down and therefore, he submits that the prosecution has not proved the case beyond all reasonable doubt that the accused was rash or negligent in causing the accident. He further submits that the trial court having appreciated the entire evidence on record, has rightly acquitted the accused and there are no error in the impugned judgment and order passed by the trial court and accordingly, he seeks to dismiss the appeal.
8. The case of the prosecution is that on 02.02.2013 at about 8.15 p.m., when the deceased was riding the motor cycle bearing registration No.KA-19-ED-
8291 along with the pillion rider (PW1) from Belthangady towards Ujire, at that time, the handle of the motor cycle hit against an oncoming auto rickshaw, due to which, the rider and the pillion rider fell on the road. At that time, the accused who was during the lorry bearing registration no.KA-18-A-4748, in a rash and negligent manner, ran the said lorry over the deceased, on account of which, the deceased suffered grievous injury and succumbed to the injuries.
9. PW1 is the complainant and he was the pillion rider. The perusal of his evidence goes to show that the deceased was riding the motor cycle in a normal speed and when they reached near Benaka Hospital, an auto rickshaw came from the opposite direction in a high speed and dashed against the motor cycle, on account of which, the deceased fell on the left side of the road. At that time, the lorry which was coming behind them ran over the deceased. He has stated that the lorry was coming in a high speed. He has further stated that he has also suffered injuries and the deceased died at the spot. In the cross-
examination, it has been elicited that there was a lorry going in front of the motor cycle and the deceased who was riding the motor cycle tried to overtake the said lorry, at that time, he came to the right side of the road and therefore, it was not visible as to any vehicle coming from the opposite direction. It is further elicited that the mirror of the auto rickshaw hit against the handle of the motor cycle, due to that, the motor cycle fell on the right side of the road.
10. There are no other witnesses who speak about the accident in question. PW1 is the sole eye witness. His evidence does not establish that the accident has occurred solely on account of the rash or negligent driving by the accused. It is no doubt that the prosecution has been able to establish that the accused was driving the lorry at the time of accident. However, the material on record does not establish that the accused was driving the lorry in a rash or negligent manner and solely on account of his rash or negligent act, the accident has occurred. The appreciation of the evidence of PW1 clearly discloses that the deceased who was riding the motor cycle came to the right side of the road by trying to overtake the lorry which was in front of the said motor cycle and at that time, the handle of the motor cycle hit against the mirror of an oncoming auto rickshaw, on account of which, the deceased fell on the road and the lorry driven by the accused ran over the deceased.
11. The trial court having appreciated the entire evidence and material on record and after giving reasons, has come to the conclusion that the prosecution has failed to establish its case beyond all reasonable doubt. There is no error in the impugned judgment passed by the trial court. There is no merit in this appeal.
The appeal is dismissed.
Sd/- JUDGE Snc