IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30th DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B. A. PATIL CRIMINAL APPEAL No.181 of 2018 BETWEEN:
THE STATE OF KARNATAKA BY CIRCLE INSPECTOR OF POLICE, BANTWAL RURAL POLICE STATION, BANTWAL CIRCLE, BANTWAL, D.K.DISTRICT, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU – 560 001 (BY SRI M.DIVAKAR MADDUR, HCGP) AND .. APPELLANT T.IBRAHIM, S/O LATE HASANABBA, AGED ABOUT 57 YEARS, RESIDING IN FRONT OF KEB THALAPADI, B MOODA VILLAGE, BANTWAL VILLAGE - 574211 .. RESPONDENT (BY SRI M.VISHWAJITH RAI, ADVOCATE) *** THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)(3) CR.P.C. PRAYING TO GRANT LEAVE TO FILE APPEAL AGAINST THE JUDGMENT AND ORDER DT. 28.09.2017 PASSED BY THE LEARNED ADDL. CIVIL JUDGE & JMFC, BANTWAL IN CRL. CASE NO.1184/2013 FOR THE OFFENCE P/U/S/ 279, 337 AND 304-A OF IPC.
THIS CRIMINAL APPEAL IS COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT The present appeal has been preferred by the State being aggrieved by the judgment and order of acquittal passed by the Addl. Civil Judge & JMFC, Bantwal in Crl. Case No.1184/2013 dated 26.09.2017.
2. Though this case is listed for Admission, with the consent of learned counsel for parties the same is taken up for final disposal.
3. I have heard the learned HCGP. The learned counsel for respondent remained absent.
4. It is the submission of the learned HCGP that the impugned judgment of acquittal passed by the trial court is erroneous and not based on the evidence on record. He further submitted that PW1 and 2 are the eye witnesses and PW3 is the injured eye-witness. They have categorically deposed before the Court below that when the accused took lorry in a reverse way rashly and negligently the alleged incident has taken place. He further submitted that, the Court below without properly appreciating the said evidence has wrongly acquitted the accused. He further submitted that when PW2 and 3 have supported the case of the prosecution, the trial court ought to have convicted the accused. He further submitted that, when there was sufficient evidence on record the trial court has wrongly acquitted the accused. On these grounds, he prayed to allow the appeal by setting aside the impugned judgment of acquittal.
5. I have carefully and cautiously gone through the submissions made by the learned HCGP and perused the records including the depositions made available by him.
6. The gist of the complaint is that on 25.04.2013 at 1.00PM near Petrol Bunk at Parangipete, Pudu Village, B.C. Road, a mini lorry bearing Registration No. KA-21 B-9955 driven by the accused without giving any signal and without following traffic rules came in a reverse direction, with heavy speed, rashly and negligently and dashed to an Autorikshaw bearing Registration No.KN-
19 D-6987, which was proceeding on B.C. Road and thereby PW3 sustained injuries and deceased also sustained injuries and subsequently he died in Father Muller Hospital at Mangalore.
7. On the basis of the complaint a case has been registered under Cr. No.113/2013 of Bantwal Rural Police. Thereafter, after charge sheet was filed for the offences punishable under Sections 279, 337 and 304-A of IPC.
8. The trial court secured the presence of the accused and after hearing the learned Public Prosecutor and learned counsel for accused, charge was prepared and read over to the accused. Accused pleaded not guilty, as such plea was recorded and the case was fixed for trial. In order to prove their case the prosecution got examined 10 witnesses and got marked 23 documents. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. by putting incriminating material as against him. He denied the same. Accused has not led any evidence nor he marked any documents. After hearing the learned counsel for parties, the Court below acquitted the accused.
Challenging the legality and correctness of the said judgment the State is before this Court.
9. As could be seen from the records, PWs 1, 2, 3, 4, 5, and 8 are the eye witnesses. PWs 1, 4, 5 and 8 have not supported the case of the prosecution and they have been treated as hostile. Even during the course of cross examination by the learned Public Prosecutor nothing has been elicited to substantiate the case of the prosecution.
10. The only evidence available before the Court below is that of the PW2, the complaint and the eye witnesses and PW3, who is injured eye witness. PW2 in his evidence has deposed that on 25.04.2013 morning hours he came to BC Road and at about 8.00am he was going back and at that time an Autorikshaw came from Mangalore side and from left side the canter lorry came with great speed in reverse manner and dashed to the said Autorikshaw and as a result of the same the driver of the Autorikshaw sustained grievous injuries and the persons who are sitting in the hind seat of the Autorickshaw have sustained minor injuries. He has further deposed that alleged against has taken place due to act of the accused for not giving any signal and take the lorry in reverse manner. During the course of cross examination, he has deposed that he saw Autorikshaw for the first time only after hearing the sound. He has further deposed that by the time he went there to the place of incident, already people have gathered and that they were trying to remove the injured persons from the said Autorikshaw.
11. PW3, is the another injured eye witness, he has also reiterated the evidence of the PW2 and he has deposed that he was the Autorikshaw driver, which met with an accident and he has also deposed during the course of cross examination that he do not know the accused and he came to know about the accused driving the vehicle from the police. He has further admitted that since the accused is before the Court and after seeing him, he has identified that he was the driver of the lorry.
12. PW6, is the Investigating Officer, PW7 is the person who registered the case and issued FIR. PW10 is the owner of the vehicle.
13. By going through the evidence of PW2 and 3 no where these witnesses have deposed that alleged incident has taken place due to rash and negligent act of the driver of the lorry. It is well established proposition of law that in order to bring home the guilt of the accused under Sections 279, 337 & 304-A of IPC, the prosecution has to establish that the alleged incident has taken place due to rash and negligent act of the accused. Even though no proper words were used, it has not been stated that the alleged accident took place due to rash and negligent act. However, it has to establish that the driver has not taken reasonable care. But, in the evidence of PW2 and 3 except saying that the driver of the said lorry taking the lorry on a reverse side with great speed and accident took place. Here, the question of giving signal while taking the lorry back side does not arise at all. He has to take only reasonable care. That evidence is not available.
14. Be that as it may, when the facts of the case goes to show that lorry was taken in a reverse manner and Autorikshaw was proceeding in the road, that itself clearly goes show that the driver of the Autorickshaw could have taken care. There is possibility of his rashness and negligence the alleged accident might have been taken place. When the complaint – witness and injured – eye witnesses have not specifically stated in their evidence that due to rash and negligent act of the accused the accident has taken place, then under such circumstances, benefit of doubt goes to the accused. In this light, it could be safely held that prosecution has not proved the guilt of the accused beyond all reasonable doubt.
15. I have carefully and cautiously gone through the judgment of the trial court. The trial court after considering the facts and circumstances of the case in the right perspective has come to a right conclusion and has rightly acquitted the accused. The state has not made out any good ground so as to interfere with the judgment of acquittal. Appeal is devoid of merits. The same is liable to be dismissed and accordingly, it is dismissed.
Sd/- JUDGE VK