IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL No.69 OF 2019 BETWEEN:
The State by Lingadalli Police, Represented by State Public Prosecutor, High Court Building, Bengaluru – 01. …Appellant (By Sri. Vijayakumar Majage, Addl. SPP) AND:
C.K. Kumar, S/o. Kengathimmaiah, Aged 38 years, Residing at Chikkarampura, Chikknayakanahalli Taluk, Tumkur District – 572 101. …Respondent (By Sri. Anup Raj, Advocate – Amicus Curiae) 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 10.05.2018 passed by the Court of the Additional Civil Judge and JMFC, Tarikere in C.C.No.135/2016 acquitting the accused/respondent for the offence P/U/S 279, 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 This appeal has been preferred by the State challenging the legality and correctness of the judgment passed by the Addl. Civil Judge & JMFC, Tarikere, in C.C.No.135/2016 dated 10.05.2018, whereunder the respondent/accused was acquitted for the offence punishable under Sections 279 and 304A of IPC.
2. I have heard the learned Addl. SPP for the appellant and Sri. Anup Raj, who has been appointed as Amicus Curiae to the respondent/accused.
3. The brief facts of the case as per the complaint are that:
On 10.11.2015 at about 04.00 P.M. the complainant along with deceased were coming from Deviramma Temple on Activa Honda. At that time, the respondent/accused being the driver of KSRTC Bus bearing number KA-18/F-211 came from Lingadahalli side and dashed to the Activa Honda, due to which the pillion rider sustained grievous injuries and immediately he was shifted to the Government Hospital at Lingadahalli and thereafter, for further treatment he was shifted to Sahyadri Narayana Hrudayala, Shivamogga and he succumbed to the injuries on 11.11.2015.
4. On the basis of the complaint, a case has been registered in Crime No.103/2015 and after investigation, charge sheet has been filed. The learned Magistrate took cognizance and secured the presence of the respondent/accused. The plea of the accused was recorded and accused pleaded not guilty and claimed to be tried and hence, trial was effected.
5. In order to prove the case, prosecution got examined 10 witnesses as PW1 to PW10 and got marked 17 documents as per Ex.P1 to Ex.P17. Thereafter, the statement of accused was recorded on the incriminating materials as against him. Accused has not lead any evidence nor got marked any documents. After hearing the learned counsel appearing for the parties, the Court below acquitted the accused. Challenging the same, the State is before this Court.
6. The main grounds which have been urged by the learned Addl. SPP are that the judgment of acquittal passed by the Court below is contrary to the facts and materials placed on record. It is his further submission that PW1 is the complainant and is an eye-witness to the alleged incident and in his evidence he has categorically deposed about the rash and negligent act of the respondent/accused and he has withstood the cross examination. Even then, the Court below without properly appreciating his evidence has come to the wrong conclusion and has wrongly acquitted the respondent/accused. It is further submitted that PW2 is the rider of the Activa Honda and he is also an eye witness and he has also corroborated with the evidence of PW1. Even the said evidence has also not been properly appreciated and the impugned order of acquittal came to be passed. It is further submitted that the sketch produced along with the Spot Mahazar Panchanama (Ex.P8) clearly goes to show that the bus in question has gone to the wrong side of the road and hit to the two wheeler. Under such circumstance, principles of Res Ipsa Loquitor will be made applicable. It is further submitted that the IMV Report produced at Ex.P13 indicates that the damage has been caused to the front portion of the bus and the front right side body of the two wheeler has also been damaged. That itself goes to show that the accused has driven the bus rashly and negligently and because of his act, the alleged incident has taken place. On these grounds he prays to allow the appeal and set aside the impugned order and convict the accused.
7. Per contra the learned Amicus Curiae vehemently argued and submitted that the evidence produced before the Court below does not substantiate the case of the prosecution. PW2 has not spoken with regard to the rash and negligent act of the accused though PW1 has deposed regarding the rash and negligent act. Hence, his evidence is not trust worthy and reliable. At one stretch of his evidence, he has stated that hind portion of the bus has been touched to the two wheeler and at another stretch he has stated that front portion of the bus has been touched to the two wheeler. Under such circumstance, the evidence of PW1 is not acceptable in law. It is further submitted that the Sketch and the IMV Report does not match with each other. Under such circumstance, the accused is entitled to the benefit of doubt.
8. It is his further submission that merely because the bus has been driven with high speed that does not attract the principles of rash and negligence and in the absence of any material on record, no presumption of rashness or negligence could be arrived and the maxim Res Ipsa Loquitor cannot be made applicable under such circumstance. In order to substantiate his contention, he has relied upon the decision in the case of State of Karnataka Vs. Satish reported in (1998) 8 SCC 493. It is his further submission that the trial Court after considering the materials placed on record has come to a right conclusion and has rightly acquitted the accused. On these grounds he prays to dismiss the appeal.
9. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records including the Lower Court Records.
10. In order to establish the case of the prosecution, prosecution got examined 10 witnesses. PW1 is the complainant and he is also an eye-witness to the alleged incident. He has identified the accused. He has further deposed that the accused drove the KSRTC bus bearing No.KA-18/F-211 with great speed negligently and dashed to the Activa Honda, which was coming from opposite direction and as a result of the same, the alleged accident has taken place. Further, he has deposed that the driver of the bus did not give any way to the two wheeler and right side hind portion of the bus dashed to the said Activa Honda. He has further deposed that he has given complaint as per Ex.P1. During the course of cross examination nothing has been elicited so as to discard his evidence. PW2 is the rider of the motor cycle and he is an eye-witness to the alleged incident and he has deposed that the accused, who is present before the Court drove the bus with great speed and dashed to the right side handle of his Activa Honda motor cycle. As a result of the same, he has also sustained minor injuries and he was also taken to the Government Hospital at Lingadahalli, where he was treated and the deceased had sustained injuries to the head and other parts of the body and after the first aid he was taken to Narayana Hrudayala at Shivamogga, where he expired. He has also deposed with regard to drawing of the Spot Mahazar as per Ex.P2 and Ex.P3. During the course of cross examination nothing has been elicited. PW3 is the Panch witness to the Spot Mahazar as per Ex.P8, Ex.P2 and Ex.P3. PW4 is another eye-witness to the alleged incident, but he has not supported the case of the prosecution and he has been treated as hostile. PW5 is the Panch witness to Ex.P8. He has also not supported the case of the prosecution and he has also been treated as hostile. PW6 is the PSI, who received the further complaint as per Ex.P11 and after obtaining necessary permission from the Court issued fresh FIR by including Section 304A of IPC. PW7 is the Panch witness. He has not supported the case of the prosecution. He has been treated as hostile. PW8 is the Assistant Motor Vehicle Inspector. He has deposed with regard to examination of both KSRTC Bus and Activa Honda and has given a Report as per Ex.P13. In his evidence he has deposed that front shape at right side of the bus is dented at the level of head light and rest all parts are in order. Insofar as the Activa Honda is concerned, front right side body is scrubbed and rest all parts are in order. During the course of cross examination nothing has been elicited from the mouth of this witness so as to discard his evidence. PW9 is the Head Constable who received the complaint and registered the case and issued FIR as per Ex.P14. PW10 is the Investigating Officer who investigated the case and filed the charge sheet against the accused.
11. Keeping in view the above said evidences, let me consider whether the prosecution has proved the guilt of the accused beyond all reasonable doubts. PW1 and PW2 are the eye-witnesses to the alleged incident. Though PW1 in his evidence has deposed that the driver of the KSRTC bus came with great speed negligently and dashed to Activa Honda but in his evidence he has deposed that without leaving any way to the Activa Honda right side hind portion of the bus has touched to the Activa Honda. As a result of the same, they have fallen on the left side and sustained injuries. As could be seen from the said evidence, it is not corroborative with the contents of the complaint and even this evidence is not trust worthy and reliable. If the hind portion of the right side of the bus is touched to the said Activa Honda, then in the said circumstance, it indicates that already the Activa Honda has crossed more than 90% of the bus and thereafter, it has hit to the bus. Then under such circumstances, the rider of the Activa Honda would be held negligent at the time of riding. It indicates that it is the driver/rider of the Activa Honda who had faulted. Under such circumstance, the evidence of PW1 will not help the case of the prosecution in any manner. Insofar as the evidence of PW2 is concerned he has spoken nothing with regard to the alleged act of negligence on the part of the accused even though he has identified the accused. In his evidence, nowhere he has deposed that the driver of the bus was rash and negligent in driving the said bus.
12. Be that as it may, even as could be seen from the sketch at Ex.P8 it indicates that the said road is a straight road and the injured/complainant and the deceased were coming in a down gradient and the KSRTC bus was coming through hillock area in up gradient way. Under such circumstance, KSRTC bus coming with great speed and dashing to the Activa Honda itself is not acceptable. Even as could be seen from the sketch which has been produced along with Ex.P8 it indicates that the tar portion of the road width is 12 feet and on both sides of the said road 3 feet mud road is also existing. Under such circumstance, there is a very possibility of avoiding the accident by the Activa Honda, since, the bus was coming on the up gradient. Then under such circumstance, it cannot be attributed that the accident has taken place due to rash and negligent act of the driver of the KSRTC bus. Even as could be seen from Ex.P13, it indicates that the front shape at right side is dented at the level of head light of KSRTC bus and insofar as the motor cycle Activa Honda is concerned, front right side body is scrubbed. That itself indicates the fact that the accident has not taken in the manner in which the allegations have been made. Actually the front shape at right side is dented at the level of head light of the KSRTC bus, then under such circumstance, the front portion of the Activa Honda must have completely get damaged, but the damage which has been caused to Activa Honda is that the front right side body has been scrubbed. That itself goes to show and substantiate the evidence of PW1 to the effect that the said Activa Honda went ahead and thereafter hit to the hind portion of the bus.
13. Taking into consideration the above facts and circumstances, I am of the considered opinion that the evidence which has been produced before the Court below is neither reposing confidence of the Court nor there are good grounds made out so as to interfere with the judgment of the trial Court. I have carefully and cautiously gone through the judgment of the trial Court. The trial Court after taking into consideration all the material facts and possible view has rightly come to the conclusion and has acquitted the accused. Therefore, I find no reasons to interfere with the orders of acquittal passed by the trial Court. Appeal is devoid of merits and the same is liable to be dismissed.
Accordingly, the appeal is dismissed.
At the beginning, this Court felt that there is some material and since, the accused remained unrepresented though notice had been served on him, Sri. Anup Raj, was appointed as Amicus Curiae. This Court praises the valuable services rendered by the said Amicus Curiae.
Registry is directed to pay Honorarium of Rs.5,000/- to the said Amicus Curiae, for having rendered the services, on proper identification and acknowledgment.
Sd/- JUDGE SV