IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.1186/2019 Between:
The State by Rural Police Station Chikkamagaluru – 572 101. … Appellant (By Sri. M. Divakar Maddur, HCGP) And:
Shanthakumar S/o Manjayya Aged 28 years Auto Driver R/at Galihalli Village Chikkamagaluru Taluk – 572 101. ... 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 03.01.2019, passed by the 1st Additional Senior Civil Judge and J.M.F.C., at Chikkamagaluru in Criminal Case No.532/2017, acquitting the accused/respondent for the offence punishable under Sections 279, 304-A of IPC and Section 187 of M.V.Act.
This Criminal Appeal is coming on for Orders, this day, the Court delivered the following:
J U D G M E N T The present appeal has been filed by the appellant/State being aggrieved by the order of acquittal passed by the 1st Additional Senior Civil Judge and J.M.F.C., Chikkamagaluru in C.C.No.532/2017 dated 03.01.2019, whereunder, the accused was acquitted for the offences punishable under Section 279, 304(A) of IPC and Section 187 of Motor Vehicles Act.
2. I have heard the learned High Court Government Pleader for the appellant.
3. Though this case is listed for orders, notice to respondent has been dispensed with and with the consent of learned High Court Government Pleader, the same is heard for final disposal.
4. The factual matrix of the case of the prosecution in brief is that on 14.04.2016 at about 7.45 p.m., when the deceased Manjunath was proceeding on his motorcycle bearing registration No.KA-46/J-1163 from Chikamagaluru towards Belur along with PW-1, who is a pillion rider and when they came near Magadi Hand-Post, the accused being the driver of Ape auto rickshaw bearing registration No.KA-18/A-8657 drove the vehicle in a rash and negligent manner, dashed against the motorcycle and caused the accident. As a result of the same, the rider of the motorcycle sustained grievous injuries and immediately, he was shifted to M.G.Hospital, Chikkamgaluru and subsequently, shifted to NIMHANS Hospital, Bengaluru and there he succumbed to the injuries. Hence, a complaint has been registered. On the basis of the said complaint, a case has been registered in Cr.No.151/2016. After investigation, the charge sheet has been filed. Learned Magistrate took the cognizance, secured the presence of the accused and supplied the copies of the charge sheet material. The plea of the accused was recorded and the accused pleaded not guilty. As such, the trial was fixed.
5. In order to prove the case of the prosecution, seven witnesses have been examined as PWs.1 to 7 and got marked 19 documents at Exs.P1 to P19. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C., but he denied all the incriminating materials and he has not led any evidence on his behalf. After hearing the learned counsel appearing for the parties, the court below has acquitted the accused. Challenging the legality and correctness of the judgment passed by the court below, the appellant- State is before this Court.
6. The main grounds urged by the learned High Court Government Pleader is that judgment passed by the trial Court is contrary to facts and material placed on record. It is his further submission that the Court below has grossly erred in appreciating the evidence of PW.1, who is none other than the pillion rider and eyewitness to the alleged accident. In his evidence, he has categorically stated that the rider of the Ape auto rickshaw has driven the same in a rash and negligent manner, as a result of the same, the alleged accident has taken place and the rider of the motorcycle succumbed to the injuries. It is his further submission that the panchnama and other documents which has been produced also clearly indicates the fact that the Ape auto came on a wrong side of the road and due to that the alleged incident has taken place. In that light, it is his submission that principles of Res Ipsa Loquitur is applicable to the present case on hand. Without considering the material placed on record, the trial Court has wrongly acquitted the accused. On these grounds, he prayed to allow the appeal and to set aside the impugned order and convict the accused.
7. I have carefully and cautiously gone through the submissions made by the learned High Court Government Pleader including the records which were made available by the prosecution including depositions and other materials.
8. On behalf of the prosecution side, complainant who is the eyewitness to the alleged incident was examined as PW.1. In his evidence, he has deposed that on 14.04.2016 at about 7.15 p.m., when he was in his house, the deceased Manjunath came on his two wheeler and asked to accompany him to go to Belur and accordingly, they were proceeded to Belur. When they came near Magadi hand post, Ape auto rickshaw came rashly and dashed to the two wheeler of the deceased Manjunath. As a result of the same, rider of the motorcycle sustained injuries to right ankle, head and helmet was broken and he has also sustained injuries to his leg. He further deposed that since he jumped from the motorcycle, he did not sustain any injuries. Subsequently, injured was taken to the M.G.Hospital, Chikkamagaluru and thereafter, shifted to NIMHANS Hospital, Benglauru and there the rider of the motorcycle succumbed to the injuries and a complaint was lodged. He is also witness to the spot mahazar at Ex.P5. During the course of the cross- examination, nothing has been elicited to discard his evidence. Though, PW.1 has deposed before the Court about the accident, but he has not said anything with regard to rash or negligent act of the driver of the Ape auto rickshaw. He has only stated that the driver of the said auto rickshaw was driven the same rashly. In order to construe the evidence under Section 279 and 304(A) of IPC, the prosecution has to clearly establish that the alleged accident has taken place due to rash or negligent driving of the driver of the offending vehicle.
9. Be that as it may. The records indicate that due to the said impact, the rider of the motorcycle sustained injuries to his right ankle, head and helmet was broken into pieces. If that is the impact, then under such circumstances, the complainant definitely would have sustained some injuries. But in his evidence, he has stated that he has jumped from the motorcycle and he has not sustained any injuries. When accident had occurred in such a force and as the rider of the motorcycle succumbed to the injuries sustained in the accident, if he jumped also definitely he would have sustained injuries. But he has stated that he has not sustained any injuries. In that light, his presence at the place of going on motorcycle as a pillion rider creates a doubt.
10. Be that as it may. Even in the evidence of PW.1 he has stated that while at the time of occurrence of the accident, the rider of the offending Ape auto rickshaw was coming from the opposite direction and has put signal light to give indication that he is going to take a turn, and at that time all the hotels, shops and commercial complex beside the roads were opened.
Then under such circumstances, it can be assumed that the rider of the motorcycle on seeing the indication also could not stop his vehicle. Hence, it clearly goes to show that the accident occurred due negligence of the rider of the motorcycle but not due to the negligent driving of the driver of Ape auto rickshaw. Except the evidence of PW.1, no other materials have been produced by the prosecution. It is admitted by PW.1 during the course of cross-examination that at the place of accident, there are many commercial complexes, many shops and houses are situated. But the Investigating Officer has not chosen to cite any independent evidence to prove the guilt of the accused in order to substantiate that the accused who is the driver of the offending vehicle caused the accident. Under such circumstances, the evidence of PW.1 do not repose any confidence of the Court to come to a conclusion that because of the rash and negligent act of the accused, the accident has taken place.
11. PW.2 is the Panch witness for spot and seizer mahazar. PW.3 is also one of the panch witness for the spot mahazar and PW.4 is IMV Inspector who inspected the motorcycle and auto rickshaw and had issued the IMV report at Ex.P8. PW.5 is the Investigating Officer and witness to the inquest mahazar - Ex.P9. PW.6 is the ASI is the witness to the photographs, complaint and FIR and who partly investigated the case. PW.7 is the PSI who investigated the case and filed the charge sheet.
12. By taking into consideration the materials and evidence, it indicates that PW.1 is the only eye witness which is available before the Court and other evidence are not trust worthy and reliable. Taking into consideration the above said facts and circumstances, the trial Court after discussing in detail has come to a right conclusion and has rightly acquitted the accused. There are no good grounds to interfere with the order of the trial Court. Hence, the judgment of the trial Court deserves to be confirmed. Accordingly, the appeal is dismissed as devoid of merits.
In view of disposal of the main appeal, I.A.No.1/2019 does not survive for consideration and accordingly, the same is also disposed of.
Sd/- JUDGE NR/-