IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL APPEAL No.133/2018 BETWEEN :
STATE BY KONAJE POLICE STATION REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU-560 001.
... APPELLANT (BY SRI K. NAGESHWARAPPA, HCGP.,) AND MOHAMMAD THASRIJ AGED ABOUT 33 YEARS S/O ABDUL KHADER R/O SAJIPAPADU VILLAGE BANTWALA TALUK, D.K.-574 211.
(SERVED, BUT UNREPRESENTED) ... 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 DATED 26.07.2017 IN C.C.NO.1954/2014 PASSED BY THE III- JMFC, MANGALURU THEREBY ACQUITTING THE RESPONDENT FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 279, 337, 338, 304A OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Though the present appeal is listed for admission, with the consent of the learned HCGP for the appellant- State, the same is taken up for final disposal and accordingly it is disposed of by this judgment.
2. Though the respondent is served with notice, he has remained absent.
3. The present appeal is preferred by the State challenging the judgment and order of acquittal passed by the JMFC (III Court) at Mangaluru in C.C.No.1954/2014, dated 26.07.2017.
4. The case of the prosecution in brief is that on 24.10.2013 at about 10.00 p.m., accused being the rider of the motorcycle bearing registration No.KA-19-EK-255 drove the same in a rash and negligent manner and dashed first to one pedestrian and thereafter he lost control and dashed to another motorbike bearing registration No.KA-19-EE-1610 which was coming in the opposite direction from Yenepoya Hospital towards Boliyaru village and due to the said impact, the rider and pillion rider of the said motorbike sustained grievous injuries. Immediately, they were shifted to Yenapoya Medical College Hospital and subsequently, the injured Balakrishna died in the hospital on 25.12.2013.
5. It is the submission of the learned HCGP for the appellant-State that the evidence of PW.1 clearly goes to show that because of the rash and negligent act of the accused-respondent, the deceased died. Without proper consideration of the said evidence, the trial Court has acquitted the accused. It is his further submission that the IMV report-Ex.P24 clearly goes to show that there was no mechanical defect, that itself indicates the fact that it is due to the rash and negligent riding of the accused-respondent, the alleged accident has taken place. It is his further submission that the trial Court without proper appreciation of the evidence on record, has come to a wrong conclusion and acquitted the accused. On these grounds, he prayed to allow the appeal by setting aside the impugned judgment and order of acquittal and to convict the accused.
6. In order to prove its case, the prosecution got examined 13 witnesses as PWs.1 to 13 and got marked the documents at Exs.P1 to P28. On behalf of the accused no witness was examined and no document was marked.
7. PW.1 is the brother of the deceased. He was the rider of the motorbike in question. He has deposed that on the date of the accident, he and his brother came from Yenepoya Hospital after looking their mother who was admitted in the said hospital and at that time his brother was sitting as a pillion rider. He has further deposed that at about 10.00 p.m., when they reached Maji Circle, the accused came on his motorbike along with pillion rider and dashed to one pedestrian and thereafter dashed to his bike. Due to the said accident they fell on the road along with bike. Due to the accident his brother sustained grievous injuries, whereas PW.1 sustained simple injuries and they were admitted to Yenepoya hospital. On the next day, police have taken his complaint as per Ex.P1. During the course of cross- examination, he admits that motorcycle of the accused dashed firstly to a pedestrian and then dashed to his bike. Further, he admits that after seeing the accused hitting to pedestrian, he tried to stop his motorcycle, but he could not stop. Even in his cross-examination he has not specifically stated that the said accident has taken place due to rash and negligent act of the respondent- accused. In this behalf, the evidence of PW.1 is not acceptable and it does not help to the case of the prosecution.
PW.2 is the witness to spot mahazar at Ex.P8. He has not supported the case of prosecution and he has been treated as hostile.
PW.3 is an eye-witness to the accident in question. He has deposed about the accident and involvement of both the vehicles and injuries caused to riders of both vehicles and pillion riders as well as the injuries of the deceased. But he has deposed that he did not know that on whose negligence the accidence has occurred and he also does not know the registration numbers of the vehicles. He has further deposed that he has only put his signature on Ex.P8. When he himself has not deposed about the rash and negligent driving of the accused, then under such circumstances, his evidence is also not helpful to the case of prosecution.
PW.4 is the pillion rider of the motorcycle of the accused. However, he has not supported the case of prosecution and he has been treated as hostile.
PWs.5 and 7 are the eye witnesses, but they have not supported the case of the prosecution and they have been treated as hostile.
PW.6 is another eye witness to the alleged incident. He has deposed that the motorcycle of the accused came with great speed and dashed to the pedestrian and within a second dashed to the another bike on which deceased was sitting as a pillion rider. He has further deposed that by the time he went to the spot, people were already gathered and auto-rickshaw was standing near the said accident. He has seen the accident from 10 meters away from his place. He has further deposed about his ignorance that who were the persons gathered there and he does not know the name of the accused. But after enquiry he came to know about the name of the accused. He has further deposed that he has seen only when the pedestrian fell down. If the evidence of this witness is scrutinized carefully, he has nowhere deposed about the great speed and rash and negligent riding of the accused.
But it is well settled proposition of law that speed is not a criteria for assessing the rash and negligent act of the accused. In this behalf also, the evidence of PW.6 is not coming to the aid of the case of the prosecution.
PW.8 is the police official who received the complaint and registered the case and issued the FIR.
PW.9 is the IMV Inspector who inspected both the vehicles and given his report as per Ex.P24.
PW.10 is the Investigating Officer who investigated the case in part.
PW.11 is the owner of the motorcycle who has deposed about the ownership of the motorcycle of the accused.
PWs.12 and 13 are the Investigating Officers who investigated the case and filed the charge sheet as against the accused.
8. As discussed above, the only evidence which is available before this Court is that of PW.6. Even the evidence of PW.6 as stated above, does not inspire the confidence of this Court to come to the conclusion that it is because of rash and negligent act of the accused- respondent, the alleged accident has taken place. Even PW.6 has reached the said place only after the accident and in that light, the evidence of this witness is not acceptable. But other witnesses have not supported the case of the prosecution and they have treated as hostile. Under such circumstances, I feel that the appellant-State has not made out any good grounds so as to interfere with the impugned judgment and order of acquittal passed by the trial Court and the same deserved to be confirmed.
Accordingly, the appeal being devoid of merits, is dismissed.
*ck/gbb/-
Sd/- JUDGE