IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL APPEAL NO.362 OF 2019 BETWEEN:
The State by Police Inspector Bantwala Traffic Police Station Dakshina Kannada District Represented by State Public Prosecutor High Court Building, Bengaluru-560 001. …Appellant (By Sri M.Divakar Maddur, HCGP) AND:
Sri Abdul Razak S/o K.Ahamed Kuye Aged about 39 years Residing at Door No.66/2, 2nd Floor, 3rd Main Road Janatha Colony, Jakkasandra Koramangala, Bengaluru-560 034.
Permanent Address:
Kajuru House, Vittabagilu Village, Killuru Post, Belthangadi Taluk Dakshina Kannada District-574 214. …Respondent (By Sri Vinaya Chandra, Advocate and Smt.Pooja Kattimani, Amicus Curiae for 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 19.11.2018 passed by the Additional Civil Judge and JMFC, Bantwala, Dakshina Kannada in C.C.No.860/2016 acquitting the accused/respondent for the offences punishable under Sections 279, 337, 338 and 304A of Indian Penal Code.
This Criminal Appeal coming on for Orders this day, the Court delivered the following:-
JUDGMENT This appeal has been preferred by the State being aggrieved by the judgment and order of acquittal passed by the Additional Civil Judge and JMFC, Bantwal, D.K., Mangaluru in C.C.No.860/2016 dated 19.11.2018.
2. I have heard the learned High Court Government Pleader for the appellant-State and Kum.Pooja Kattimani, learned Amicus Curiae and Sri.Vinaya Chandra, learned counsel for the respondent-accused.
3. The facts leading to the case are that on 11.10.2015 at about 6.30 p.m. accused being the driver of the car bearing registration No.KA01 AE 2168 drove the same from Mangaluru towards B.C.Road in one way in a rash and negligent manner so as to endanger human life and dashed the complainant and also Dinesh and Richard Fernandez who were standing in the bus shelter, as a result of which, Dinesh and Richard Fernandez sustained grievous injuries. Richard Fernandez while being shifted to Wenlock Hospital, Mangaluru, succumbed to the injuries. Injured Dinesh was shifted to Unity Hospital, Mangaluru and he died while under treatment on 28.10.2015. On the information received, the Police Inspector visited the hospital, recorded the statement and registered the case in Crime No.75/2015. After investigation, charge sheet was filed. The learned Magistrate took cognizance, secured the presence of the accused and after following the formalities, plea of the accused was recorded. The accused pleaded not guilty and claimed to be tried, as such, trial was fixed. In order to prove the case of prosecution, it has got examined 9 witnesses and got marked 16 documents.
Thereafter, statement of the accused was recorded under Section 313 of Cr.P.C. He denied the incriminating materials. He has not led any evidence nor produced any documents. After hearing the learned counsel appearing for the parties, the trial Court acquitted the accused. Against the said order, the State is before this Court.
4. The main grounds urged by the learned High Court Government Pleader are that the judgment and order of acquittal passed is contrary to law, facts and material placed on record. It is his submission that P.Ws.1 and 2, have clearly stated the manner in which the alleged incident has taken place i.e., after hitting the persons, the car has turned turtle, which clearly shows that it is only because of the rash and negligent act of the respondent- accused, the alleged incident has taken place. The trial Court ought to have assessed the said evidence properly and by applying the doctrine of res ipsa loquitur, convicted the accused. It is his further submission that the spot mahazar and sketch Ex.P4 clearly shows that much damage has been caused to the car, which is due to the rash and negligent act of the accused. This aspect has also not been properly considered and appreciated by the trial Court. On these grounds, he prayed to allow the appeal and to convict the accused.
5. Per-contra, learned Amicus Curiae appearing for the respondent-accused has vehemently argued and submitted that the evidence of P.Ws.1 and 2 does not repose any confidence. They have only stated about the speed of the car and not stated anything about the rash and negligent act on the part of the accused. It is her further submission that Ex.P14, the wound certificate clearly shows that the injured got admitted to the hospital with the history of alleged accident due to tyre burst. If the said fact is taken into consideration, it is only because of the mechanical defect and not due to the rash and negligent act of the respondent-accused. It is her further submission that P.Ws.1 and 2 have deposed that the car after hitting has turned turtle and the car also got damaged. If really, it has turned turtle, as per the photographs produced at Ex.P2 the damages would have been caused to the right side portion of the car. But the said photographs indicate that the damage has been caused to the left side front door of the car, which itself shows that the manner in which the accident has taken place is not as alleged by the prosecution. It is her further submission that the principle of res ipsa loquitur is also not applicable to the present case since Ex.P4 itself shows that the accident is due to mechanical defect. On these grounds, she prayed to dismiss the appeal as being devoid of merits.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
7. P.Ws.1 and 2 are said to be the eyewitnesses to the incident. P.W.1 has deposed that on 11.10.2015 at about 6.30 p.m. when he was going by walk, the alleged car came in a great speed and dashed against them and thereafter, it has turned turtle. During the course of cross- examination, he has deposed that immediately after the accident, he lost consciousness and he does not know anything about other aspects. Even P.W.2 reiterates the evidence of P.W.1.
As could be seen from Ex.P11, the Motor Vehicles Accident report, only the mechanical condition of the vehicle is mentioned and there is no mention with regard to the condition of the tyres of the said car. The Inspector has opined that the accident occurred was not due to any mechanical defect of the vehicle, which is contrary to Ex.P14, the wound certificate of P.W.1, wherein the injured himself has given the history that accident occurred due to tyre burst. If really, the said incident has taken place due to the rash and negligent act of the driver of the car, the same ought have been mentioned in Ex.P14. When these two witnesses have not clearly stated the manner in which the alleged incident has taken place and even the documents and evidence is contrary to each other, it creates doubt in the case of the prosecution. Even if the evidence of P.Ws.1 and 2 is taken into consideration, after the accident if the car has turned turtle and as per the sketch, on the left side of the road there is some up gradient, if at all the car has turned turtle, then the right side of the car must have been damaged to a greater extent than the left side and the photographs of the car produced at Ex.P2 is contrary to the same. In that light if the entire evidence is perused, it creates doubt in the case of prosecution. Under such circumstances, I am of the considered opinion that the principles of res ipsa loquitur cannot be made applicable to the case on hand.
8. Insofar as P.Ws.3 and 4 are concerned, they are also eyewitnesses to the alleged incident, but they have not supported the case of prosecution, as such, they are treated hostile to the prosecution case.
P.Ws.5 and 6 are the spot mahazar pancha to Ex.P2.
P.W.7 is the Head Constable who received the notice of the alleged incident and he went to the hospital and recorded the statement of the injured witness.
P.W.8 is the ASI who received the complaint from P.W.7 and registered the case and issued FIR.
P.W.9 is the Investigating Officer who investigated the case and filed the charge sheet against the accused.
9. The evidence of the witnesses does not repose confidence of the Court so as to apply the principles of res ipsa loquitur. As such, the trial Court taking into consideration the said factual matrix has come to a right conclusion in acquitting the accused. There is no perversity or illegality in passing the impugned order.
10. The appeal being devoid of merits, the same is liable to be dismissed and it is accordingly dismissed.
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This Court recognizes the able assistance given by Kum.Pooja Kattimani, learned Amicus Curiae and the registry is directed to pay honorarium of Rs.3,000/- to her on proper identification and acknowledgement.
In view of dismissal of the appeal, I.A.No.1/2019 does not survive for consideration. Hence, it is disposed of .
Sd/- JUDGE bkp