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.610 OF 2019 BETWEEN:
THE STATE BY SAKARAYAPATTANA POLICE, REPT.BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU-01.
... APPELLANT (BY SRI M.DIVAKAR MADDUR, HCGP) AND B. BASAVARAJU, S/O. LATE BADAHUCHANNA, AGED ABOUT 69 YEARS, HEALTH DEPARTMENT, R/O. HOUSE NO.216/B, VINAYAKA NILAYA, KALYANANAGARA, NEAR RURAL POLICE STATION, CHIKKAMAGALURU-577 101.
... 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 07.09.2018, PASSED BY THE COURT OF III ADDITIONAL CIVIL JUDGE AND JMFC AT CHIKKAMAGALUR IN C.C.NO.1074/2016 ACQUITTING THE ACCUSED/RESPONDENT FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 279 AND 304(A) OF IPC AND TO SET ASIDE THE ABOVE SAID ORDER.
THIS CRIMINAL APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Heard the learned HCGP on I.A.No.1/2019. The said application is filed under Section 5 of the Limitation Act to condone the delay of 94 days in preferring this appeal and it is also accompanied with the affidavit.
2. I have heard the learned HCGP. Though this case is posted for hearing on I.A, on perusal of the records, this Court felt that it is not necessary to issue notice to the respondent. Hence, the appeal is taken up for final disposal and is disposed of by this judgment.
3. The present appeal has been preferred by the appellant-State challenging the judgment and order of acquittal passed by the III Additional Civil Judge and JMFC, Chikmagalur in C.C.No.1074/2018, dated 07.09.2018.
4. The factual matrix of the prosecution is that on 31.01.2016 at about 1.30 p.m., the accused being the driver of the Alto Car bearing registration No.KA.18/N-6717 drew the same in a rash and negligent manner so as to endanger the human life and dashed against the brother of the complainant and he suffered with injuries including head injuries and subsequently, he succumbed to the injuries on the spot. On the basis of the complaint, the case has been registered against the accused.
5. After investigation, the charge-sheet was filed against the accused. The trial Court secured the presence of the accused and after following of the provisions of the Section 207 of Cr.P.C., the plea of the accused was recorded. Accused pleaded not guilty and claimed to be tried and as such the trial was fixed.
6. In order to prove its case, the prosecution got examined nine witnesses and got marked 14 documents. After closure of the evidence, the accused was questioned under Section 313 of Cr.P.C. by putting incriminating materials as against him. The accused denied the same. After hearing the learned APP and learned counsel for the accused-respondent, the trial Court acquitted the accused. Challenging the same, the State is before this Court.
7. It is the submission of learned HCGP that the judgment and order of acquittal passed by the trial Court is illegal and contrary to law and facts of the case. He further submitted that though PWs.1, 3 and 6 are the eye-witnesses to the alleged incident, the trial Court without considering their evidence in its right perspective has wrongly acquitted the accused. He further submitted that the Motor Vehicle Inspection report and the panchanama drawn clearly go to show that the alleged accident has taken place due to the rash and negligent act of the accused. Even though there is ample materials, the trial Court without properly appreciating the material on record has erroneously acquitted the accused. On these grounds, he prayed to allow the appeal by setting aside the impugned judgment and order acquittal.
8. I have carefully and cautiously gone through the submissions made by the learned HCGP and perused the records.
9. The learned HCGP also made available the records, evidence of witnesses and other material. On going through the said records, prosecution in order to prove the case has examined nine witnesses.
10. PW.1-Complainant in his evidence has deposed that the deceased-Vasanth Kumar was his brother and he was an agriculturist. Between 1.00 p.m., and 1.30 p.m., when himself and CW.13 were standing near bakery, the deceased-Vasanth Kumar was proceeding to home on mud road, at that time a car came with a great speed and dashed to the deceased. As a result of the same, he sustained injuries on his face, back and the forehead. PW.1 went to the spot and saw that the deceased died on the spot. During the course of cross-examination, he has deposed that he has only signed Ex.P1-complaint as he has been insisted to sign due to the brother’s death and he does not know the contents of the complaint-Ex.P1. He has also admitted that the said vehicle was not proceeding with a great speed. Further, he has deposed that in urgency, his brother tried to cross the road, he came across the said car and as a result of the same the alleged incident took place. He further deposed that by the time he went to the place of accident, it has already taken place and he cannot say whether the vehicles were proceeding slowly or in a speedy manner and he cannot identify the person as to who was driving the vehicle in question on that day.
11. PW.3 is another eye-witness. He has deposed in his examination-in-chief that he know the deceased and about one and half year back, between 2.00 p.m. and 2.30 p.m., he was standing in a bus stop and the deceased was also standing in the said bus stop and at that time, the accused came slowly by driving his car and at the same time a lorry came from opposite direction and the driver of the car took diversion to the left side and there was a ditch and the said car ran in to the ditch and dashed to the deceased and he died because of the accident. He has further deposed that the alleged accident has taken place due to the fault of the accused. This witness has been treated as hostile and when the learned APP cross-examined this witness, he has denied the suggestion that the deceased was going on footpath and has also denied the suggestion that the said car was coming in a rash and negligent manner with a great speed.
12. PW.6 is another eye-witness. He has not supported the case of prosecution and he has been treated as hostile. Even the said witness has been cross-examined and nothing has been elicited from the mouth of this witness.
13. PW.2 was examined as spot mahazar to Ex.P4 and PW.4 was examined as seizure mahazar pancha to Ex.P7.
14. PW.5 is also another seizure mahazar panch witness to Ex.P8. They have also not supported the case of prosecution and they have been treated as hostile.
15. PW.7 is the Head Constable who registered the case on the basis of the complaint and issued the FIR to the jurisdictional Court.
16. PW.8 is the Investigating Officer who investigated the case and filed the charge-sheet against the accused.
17. PW.9 is the Motor Vehicle Inspector who inspected the said vehicle and issued the report as per Ex.P13.
18. On careful perusal of the evidence of PW.1- the complainant and the eye-witness-PW.3, the evidence of PW.1 does not repose any confidence so as to come to the conclusion that the alleged incident has taken place due to rash and negligent act of the driver. He has deposed that he has only signed on Ex.P1-complaint and he does not know the contents and what has been written in the complaint. He has further deposed that the said vehicle was not driven by the accused and when his brother was hurriedly crossing the road, as a result, the alleged accident has taken place. He has further deposed that by that time, he went there, already accident has taken place. On reading of entire evidence, the said witness has given the contradictory statement before the Court and he was not specific that whether the alleged incident has occurred due to the rash and negligent act of the accused-respondent. Even PW.6 is also the eye-witness. He has also not supported the case of prosecution. PW.3 is another eye-witness. He has deposed that the accused was driving the car slowly and the alleged accident has taken place due to the fault of the accused and he has also identified the accused. By going through the said evidence, no where the said witness has stated that the alleged accident has taken place due to the rash and negligent act of the accused and his evidence and the evidence of PWs.1 and 6 is contradictory to each other. When the brother of the deceased himself has deposed before the Court below that the accused was not driving the car in a rash and negligent manner and the deceased himself was crossing the road hurriedly and come across the car and as a result of the same, the alleged accident has taken place. Under such circumstances, it cannot be held that the alleged accident has taken place due to the fault or due to the rash and negligent act of the accused-respondent. The other evidence which has been adduced is not going to substantiate the case of prosecution. Though several contentions are made by the learned HCGP, on detailed discussion held by me above, evidence of the said witnesses does not repose any confidence of this Court and the said evidence is not sufficient to convict the accused.
19. I have carefully and cautiously gone through the judgment and order of the trial Court and perused the records. On close reading of the said judgment, it is neither perverse nor illegal. As the trial Court discussed the evidence in detail and has finally come to the right conclusion, it does not require interference at the hands of this Court. The appeal is devoid of merits, the same is liable to be dismissed.
Accordingly, the appeal is dismissed.
In view of dismissal of the appeal, I.A.No.1/2019 for condonation of delay stands disposed of.
Sd/- JUDGE GBB