IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE B.A. PATIL CRIMINAL APPEAL NO.161/2018 Between:
The State by P.S.I Puttur Rural P.S., Puttur, D.K. Dist, Represented by State Public Prosecutor Bangalore. … Appellant (By Sri M. Divakar Maddur, HCGP) And:
Danapala Naik J.S Son of Samya Naik Aged about 35 years R/at Gollara Halli B Thanda Post, Karagunda Arasikere Taluk Hassan District. … Respondent (Smt. Haleema Ameen, Adv. For Sri S. Vishwajith Shetty, Advocate ) This Criminal Appeal is filed under Section 378(1) and (3) of the Cr.P.C., praying to grant leave to appeal against the judgment and order of acquittal dated 30.08.2017 passed by the learned Additional Senior Civil Judge and JMFC, Puttur, D.K., in C.C.No.1661/2015 acquitting the respondent-accused for the offence p/u/s 279 and 304-A of IPC.
This Criminal Appeal coming on for Admission this day, the Court delivered the following:
J U D G M E N T The present appeal has been preferred by the State being aggrieved by the judgment and order of acquittal passed by the Additional Senior Civil Judge and JMFC, Puttur, D.K., in C.C.No.1661/2015 dated 30.08.2017.
2. I have heard the learned counsel for the respondent and the learned High Court Government Pleader for respondent-State.
3. Though this case is posted for admission with consent of the learned High Court Government Pleader and the learned counsel for the respondent, the same is taken up for final disposal by this judgment.
4. The case of the prosecution in brief is that on 09.06.2015 at about 7.30 a.m., the respondent/accused being the driver of the KSRTC bearing registration No.KA-19-F-2131 drove the same in a rash and negligent and while proceeding at Bylady in Irde village due to rash and negligent act of the driver, the conductor of the bus was thrown out from the said bus as the door was open and he sustained grievous injury, later he succumbed to the injury. On the basis of the complaint the case has been registered and after investigation, charge sheet has been filed.
5. After filing of the charge sheet, the learned Magistrate took cognizance and secure the presence of the accused who was on bail and after compliancy of 207 of Cr.P.C., plea was recorded and the accused pleaded not guilty, claimed to be tried for the alleged offence, as such, the trial was fixed.
6. In order to prove the case of the prosecution, it examined 8 witnesses and got marked 18 documents. After closure of the prosecution evidence, the accused was examined under Section 313 of Cr.P.C., by putting incriminating material as against him and he denied the same. The accused not chosen to lead any evidence nor he marked any documents on his behalf. After hearing the learned Assistant Public Prosecutor and the learned counsel for the accused, the Court below acquit the accused. Challenging the legality and correctness of the said judgment of acquittal, the State is before this Court.
7. The main grounds urged by the learned High Court Government Pleader are that the impugned judgment is erroneous and contrary to the facts and circumstances and material placed on record. The reasoning assigned by the Court below is not just and proper. The alleged accident has taken place due to rash and negligent act of the accused/respondent.
8. PW.3 is the eyewitness, who was also travelling in the said bus. He has categorically stated that because of excessive speed the accident has occurred. There was a speed breaker, due to high speed, the bus was shaken. At that time the conductor was thrown out of the bus and suffered with grievous injury and subsequently, he succumbed to the injury. He further submitted that the Court below without considering the said aspect has come to a wrong conclusion and has wrongly concluded the case. On these grounds, he prays to allow the appeal and set- aside the impugned judgment and order of acquittal.
9. Per contra, learned counsel for the respondent by justifying the judgment and order submitted that PWs.2 and 4 are eyewitnesses and they have not supported the case of the prosecution. Though PW.3/complainant was travelling in the bus, his evidence was not trustworthy as he cannot be treated as eyewitness to the alleged incident. The trial Court, after considering the material placed on record has given a findings, the State has not made out any good grounds to interfere with the judgment of the trial Court. On these grounds, she prays to dismiss the appeal.
10. I have carefully and cautiously gone through the submissions of both the parties and even the learned High Court Government Pleader made available all the deposition of the witnesses.
11. In order to prove the case of the prosecution, the prosecution has to establish that the alleged accident has taken place due to rash and negligent act of the respondent/accused who is the driver of the KSRTC bus and he drove the same in a rash and negligent manner so as to endanger the human life.
12. With the above said principle, if we peruse the evidence of prosecution, PW.1 is a spot mahazar pancha, he has not supported the case of the prosecution. PWs.2 and 4 are eyewitnesses to the alleged incident, they have also not supported the case of the prosecution and they have been treated as hostile. During the course of cross-examination of these witnesses nothing has been elicited so as to substantiate the case of the prosecution. PW.3 is the complainant. He is the star witness in this case. He deposed that on 9.06.2015 at about 7.00 a.m., when he was travelling in the KSRTC bus driven by the respondent/accused from Mithadka to Puttur, when the said bus reached near Bylady, the driver of the bus with great speed, due to high speed, the bus was shaken and the conductor of the bus fallen down and sustained injury, then he filed a complaint as per Ex.P.4. On next day, he visited the spot and at that time, the spot mahazar and sketch has been drawn as per Ex.P.1 and P.5.
13. During the course of cross-examination, he has admitted that he has not stated in his complaint with regard to rash and negligent act of the driver near the speed breaker, he has not mentioned in the complaint that he and others have sustained injury, accused was standing on foot board. Other suggestions have been denied. PW.5 is the spot mahazar witness deposed regarding drawing of mahazar at Ex.P.1. He has not supported the case of the prosecution. PW.6 is the Motor Vehicle Inspector, who examined the said bus and issued the IMV Report at Ex.P.12 and PW.7 is the Investigating Officer, who registered the case and partly investigated the case. PW.8 is also police Inspector, who took further investigation and after completion of the investigation, he filed final report against the accused.
14. On close reading of the evidence of PW.3, it reveals that the deceased was standing on the footboard at the time of the alleged incident and even PW.3 has only stated that the driver of the bus was driving the said bus with high speed. But he has not specifically stated that the said bus was driven rashly and negligently by the accused. It is well settled proposition of law that the speed is nor a criteria to assess the rash and negligent act of the accused person. The prosecution has to establish that the driver of the bus has not driven the bus by taking reasonable care in the ordinary course of business, what reasonable care he ought to have taken under the said facts and circumstances. But the peculiar facts and circumstances is that admittedly the deceased who is the conductor of the bus was standing at the door step of the bus and the driver of the bus was driving the bus. Admittedly, the deceased was working as a conductor, then under such circumstances, closing of door properly is the duty of the conductor and it is the conductor, who gives the signal to move the vehicle, after closing of the door. No duty cost on the accused driver to close the door property. No imputation can be attributed to the accused.
15. Be that as it may, even the footboard is not meant for standing of either the conductor or any other passenger that itself is construed to be illegal. The conductor has to be their inside the bus for the purpose of collection of money and issuance of ticket. For the reasons best known to him, for what reason he was standing at the footboard and whether he has properly closed the door or not is also within the knowledge of deceased and no material brought on record. Under the said facts and circumstances, it is not the respondent/accused who was rash and negligent. Under these circumstances, I feel that the contentions raised by the learned High Court Government Pleader are not having any force and the same are liable to be rejected and the same is rejected.
The appeal is devoid of merits and the same is liable to dismissed. Accordingly, the appeal is dismissed.
Sd/- JUDGE nms