IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.1310/2019 BETWEEN:
State of Karnataka by by Lingadalli Police Station, Chikkamagaluru District, Represented by State Public Prosecutor, High Court Building, Bengaluru – 560 001.
(By Sri Vijayakumar Majage, Addl. SPP) AND:
T.K. Prathap, S/o T.K. Kariyappa, Aged about 33 years, Lorry Driver, R/o Gulladamane Village, Tarikere Taluk – 577 228.
... Appellant ... Respondent This Criminal Appeal is filed under Section 378(1) and (3) of Cr.P.C., praying to grant leave to appeal against the judgment and order of acquittal dated 16.03.2019 in C.C. No.742/2017 passed by the Additional Civil Judge and JMFC, Tarikere acquitting accused/respondent for the offences punishable under Sections 279, 337 and 304(A) of IPC r/w 187 of IMV Act.
This Criminal Appeal coming on for Orders this day, the Court delivered the following:
J U D G M E N T This appeal has been filed by the appellant-State being aggrieved by the judgment and order of acquittal passed by the Additional Civil Judge and JMFC, Tarikere in C.C. No.742/2017 dated 16.03.2019, where under the accused was acquitted for the offences punishable under Sections 279, 337 and 304(A) of IPC and also Section 187 of IMV Act.
2. I have heard the learned Additional SPP for the appellant-State. Though this case is listed for hearing – interlocutory application, after hearing the learned Additional SPP, this Court felt that the notice to respondent is not necessary. Hence, the same is taken up for final disposal.
3. The factual matrix of the case as per the complainant is that on 01.03.2017 at about 7.00 p.m., the complainant was coming in a Autorickshaw along with his wife and daughter from Tarikere to go to Lingadahalli. At that time, accused being the driver of the water tanker bearing No.KA-18-TA-7576, drew the same in a rash and negligent manner, came from opposite direction and dashed to the Autorickshaw. As a result of the same, all the three suffered with injuries but the daughter of the complainant subsequently, succumbed to the injuries. On the basis of the complaint, a case has been registered and thereafter, after investigation, charge sheet has been filed.
4. Learned Magistrate took cognizance and secured the presence of the accused and also plea was recorded. Accused pleaded not guilty and he claimed to be tried as such, the trial was fixed.
5. In order to prove the case of the prosecution, it has examined 12 witnesses and got marked 24 documents. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. and neither the accused has not led any evidence nor got marked any evidence. After hearing the learned counsel appearing for the parties, the trial Court acquitted.
6. The main grounds urged by the learned Additional SPP are that the Court below without looking into the material placed on record has come to the wrong conclusion and has wrongly acquitted the accused. It is his further submission that PWs.1 to 4 is the eye-witnesses, they have supported the case of the prosecution and even, they have not disputed the spot mahazar – Ex.P4. That itself clearly goes to show that the driver of the tractor has gone to the wrong side of the road and has hit to the Autorickshaw, as a result of the same, the deceased sustained injuries and died. It is his further submission that the circumstances, if it is entirely taken into consideration, it indicates that the prosecution has proved the guilt of the accused beyond all reasonable doubt. In that light, he prayed to allow the appeal and convict the accused by setting aside the impugned judgment and order.
7. I have carefully and cautiously gone through the submissions made by the learned Additional SPP and perused the records. He has also made available the evidence and got marked the documents, which ever available with him.
8. On conscious consideration of the said records, it indicates that PW.1 is the driver of the Autorickshaw and PW.4 is his wife, in their evidence, they have deposed with regard to the manner in which, the accident has taken place. But unfortunately, they have not stated anything about the rash and negligent act of the driver of the said water tanker. They have only stated that the driver of the said tractor came with great speed and dashed to the Autorickshaw. In that light, the evidence of PWs.1 and 4 is not going to be held in any manner so as to come to the conclusion that the alleged accident has taken place due to the rash and negligent act of the accused. Though it is contended by the learned Additional SPP that the spot mahazar, which also contains the sketch, indicates that the tractor has gone to the wrong side of the road and hit to the Autorickshaw that itself sufficient to bring home the guilt of the accused but unfortunately, Ex.P4 – Spot mahazar itself has not proved by the prosecution since PWs.2, 3 and 11 are the spot mahazar panchas, they have not supported the case of the prosecution and they have been treated as hostile. Under such circumstance, even the contention which has been urged by the learned Additional SPP is not having any force so as to bring home the guilt of the accused. Even though Additional SPP contended that on basis of Doctrine of res-ipsa-loquitur accused can be convicted, but when facts does say so and other witnesses not supported, it cannot be held that it has been proved and accused can be convicted. But no such circumstances have been produced by the prosecution to accept the said doctrine and convict the accused. Insofar as the other witnesses are concerned, PW.6 is the Doctor, who conducted the post mortem report and has given the report as per Ex.P12.
9. PW.7 is the motor vehicle inspector, who examined the vehicle and has given the report as per Ex.P17.
10. PW.8 is the WPSI, who received the complaint as per Ex.P1 and issued FIR as per Ex.P20.
11. PW.9 is a panch witness for the seizure mahazar of the vehicle Ex.P9.
12. PW.10 is the owner of the vehicle.
13. PW.11 is the Panch witness to Ex.P4 – Spot Mahazar and PW.12 is the Investigating Officer, who investigated the case and has filed the charge sheet.
14. Looking from all the evidences, which have been produced, indicates that the entire evidence does not repose any confidence so as to bring home the guilt of the accused as alleged.
15. In the light, I am of the considered opinion that the appeal is being devoid of merits, the same is liable to be dismissed and accordingly, it is dismissed.
I.A. No.1/2019 does not survive for consideration.
Accordingly, the same is disposed off.
Sd/- JUDGE VBS