IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.97 OF 2019 BETWEEN:
The State by Police Inspector, Bantwal City Police Station, Bantwal, Dakshina Kannada, Represented by State Public Prosecutor, High Court Building, Bengaluru-560 001.
...Appellant (By Sri. Thejesh P, HCGP) AND:
Hidayuthulla S/o U.M.Ummarrabba, Aged 44 years, Residing at Bhastipaddu House, Dakshina Kannada District-575 001.
...Respondent (By Sri. Dinesh Kumar K. Rao, Respondent – Absent) This Criminal appeal is filed under Section 378(1) and (3) of Criminal Procedure Code, praying to grant leave to appeal against the judgment and order dated 15.06.2018 passed by the Court of Additional Civil Judge and JMFC, at Bantwal in C.C.No.1447/2015, acquitting the accused-respondents, for the offences punishable under Sections 279, 304(A) of IPC.
This Criminal appeal coming on for Orders, this day, the Court made the following:
JUDGMENT This appeal is preferred by the State being aggrieved by the judgment and order of the acquittal dated 15.06.2018 passed by Additional Civil Judge and JMFC at Bantwal, Dakshina Kannada.
2. Though this case is listed for hearing of interlocutory application, with the consent of learned HCGP, the same is taken up for final disposal.
3. Heard the learned HCGP. Though notice is served and represented by the counsel, the counsel for the respondent has remained absent.
4. The factual matrix of the case of the prosecution in brief is that, on 05.04.2015 at about 8 p.m., the accused-respondent being the rider of the motor cycle bearing No.KA-19-EM-2723, drove the same in a rash and negligent manner, so as to endanger human life and dashed against the deceased and as a result of the same, he fell down and sustained injuries. Immediately, injured was shifted to Father Muller Hospital, where he succumbed to the injuries. On the basis of the complaint, the case was registered in crime No.98/2015. After investigation charge sheet was laid.
5. It is the contention of the learned HCGP that the judgment of the trial Court is perverse and not sustainable in law. Though PW1 is the eye witness to the alleged incident and has deposed that the accused drove the motor cycle in a rash and negligent manner and dashed to the deceased and as a result of the same, he sustained injuries and succumbed to the injuries, without considering the said evidence, the trial Court erroneously passed the judgment of acquittal.
6. The learned HCGP for the appellant further submitted that the sketch Ex.P8 and spot mahazar also clearly goes to show that when the deceased and PW1 were standing by the side of the road, accused drove the motor cycle in a rash and negligent manner and dashed to the deceased. He further submitted that the accused has not disputed the involvement of the vehicle in the accident and has not denied that he was the rider of the said motor cycle. Under such circumstances, the trial Court ought to have convicted the accused. On these grounds, he prays to allow the appeal and to set aside the impugned judgment of acquittal and prays to convict the accused.
7. In order to prove the case of prosecution, prosecution got examined eight witnesses and got marked 14 documents. It is the specific contention of the learned HCGP that PW1 is eye witness. His evidence ought to have been accepted by the Court below. PW1 is the son of the deceased. In his evidence, he has deposed that he and his father were standing by the side of the road on 05.04.2015, at about 8 p.m., waiting for a vehicle to go to their house. At that time, the motor cycle came with a great speed and dashed to his father. As a result of the same, his father sustained injuries. Immediately, he was shifted to Father Muller Hospital, Mangaluru and he died due to the injuries. He has further deposed that because of the accused driving the said vehicle in a great speed, the alleged incident has taken place. As per PW1, nothing has been elicited so as to discard the said evidence and the suggestions have been denied. But as could be seen from the evidence of PW1, in his evidence he has deposed that alleged accident has taken place due to the speed of the motor cycle and negligence of the rider of the motor cycle. Nowhere in his evidence, he has deposed that alleged accident has taken place due to rash and negligent act of the accused riding the motor cycle. It is well settled proposition of law that in order to bring home the guilt of the accused under Section 304(A) of IPC., the prosecution has to clearly establish that the alleged accident has taken place due to rash and negligent act of the accused and accused alone. As could be seen from the sketch-Ex.P8, the alleged accident has taken place on the side of the road and not as contended on the mud road and even during the course of cross-examination of PW1, it has been elicited that the distance of the house of the deceased and complainant from the bus stop was ten minutes walk. Then under such circumstances, it is very difficult for anybody to believe that they were waiting for the vehicle to reach their house. It has been elicited during the cross examination that when they were in a hurry to cross the road, at that time, the alleged accident has taken place. The facts and circumstances of PW1 repose the confidence of the Court to come to the conclusion that alleged accident has taken place due to rash and negligent act of the accused. PW2, PW3, spot mahazar witness at Ex.P2, they have not supported the case of the prosecution and are treated as hostile. During the course of cross-examination, nothing has been elicited so as to substantiate the case of prosecution. PW4 is the ASI, who received the death memo and he submitted the same to the jurisdictional Court. PW5 is the PSI, who received the complaint as per Ex.P1 and he registered the case and issued FIR as per Ex.P7. PW5 also partly investigated the case. During the course of cross-examination, nothing has been elucidated from the mouth of this witness. PW6 is the Motor vehicle inspector, who inspected the motor cycle and gave his report as per Ex.P14. PW7 is the investigating Officer, who investigated the case and filed the charge sheet against the accused. PW8 is the PSI, who also partly investigated the case. On going through the evidence of these witnesses, PW1 is the only eye witness available in this case and even his evidence is also not acceptable and it does not repose the confidence of the Court so as to come to the conclusion that the alleged accident has taken place due to rash and negligent act of the accused and the evidence of the other witnesses is not going to substantiate the case of the prosecution in any manner. Looking from any angle there is no material so as to interfere with the judgment of the trial Court and judgment of the trial Court deserves to be confirmed.
8. In the light of the discussion held above, I am of the considered opinion that appeal is devoid of merits and same is liable to be dismissed and accordingly dismissed.
In view of the dismissal of the main appeal, IA.No.1/2019 does not survive for consideration and same is also dismissed.
Sd/- JUDGE ag