IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.303/2019 Between:
The State by Station House Officer, Kaup Police Station Rept. By State Public Prosecutor High Court Building Bengaluru- 01. …Appellant (By Sri.M.Divakar Maddur, HCGP) And:
Sathish K.V Aged about 49 years S/o late Vittal Naik R/at Near Chowki Higher Primary School, Kesawi Post and Village Koppa Taluk Chickmagalur District. …Respondent (By Sri.N.R.Jagadeeswara, Advocate) This Criminal Appeal is filed under Section 378(1) and (3) of Cr.P.C., pleased to grant leave to appeal against the judgment and order dated 12.07.2018 passed by the Court of the II Additional Civil Judge and JMFC, Udupi in C.C No.626/2014 acquitting the accused/respondent for the offence P/U/S 279, 338, 304A of IPC.
This Criminal Appeal is coming on for Orders, this day, the Court delivered the following:
J U D G M E N T This Appeal has been preferred by the State challenging the judgment and order of acquittal passed by the II Additional Civil Judge and JMFC, Udupi in C.C No.626/2014 dated 12.07.2018.
2. I have heard the learned High Court Government Pleader for the appellant-State and learned counsel for the respondent-accused.
3. Though this case is listed for hearing on interlocutory application, with consent of the learned counsel appearing for the parties, the same is taken up for final disposal.
4. The factual matrix of the case are that on 01.02.2014 at about 3.00 p.m, accused being the driver of the bus bearing Registration No.KA 19D 9711, drove the same from Mangaluru towards Udupi side in a rash and negligent manner so as to endanger human life. When the said bus reached near Kamabalagadde, Moodabettu Village, he went and dashed to the Bullet Motor Cycle bearing Registration No.CNX 9540 and as a result of the same the rider and also the pillion rider have sustained grievous injuries and rider succumbed to the said injuries at about 5.00 p.m in Adharsha Hospital at Udupi. On the basis of complaint, a case has been registered and after investigation the charge sheet was filed.
5. The learned Magistrate took cognizance to secure the presence of the accused and after filing of the charge sheet, following the formalities under Section 207 of Cr.P.C., heard regarding recording of the plea.
The plea was recorded. The accused pleaded not guilty and he claims to be tried, as such, trial was fixed.
6. In order to prove the case of the prosecution, it has got examined PWs.1 to 7 and got marked the documents at Ex.P1 to P19. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. and the accused denied the incriminating material. The accused neither led any defence evidence nor got marked any documents. After hearing the learned counsel appearing for the parties, the Court below acquitted the accused. Challenging the legality and correctness of the said order, the State is before this Court.
7. The main grounds urged by the learned High Court Government Pleader are that the judgment and order of acquittal passed by the Court below is contrary to the material placed on record. It is his further submission that the evidence of PW.1 clearly goes to show that the said vehicle has been driven in a rash and negligent manner and went towards the right side of the road and as a result of the same the alleged incident has taken place and the rider of the motorcycle has succumbed to the injuries.
8. It is his further submission that the Court below has wrongly held that PW.1 is an interested witness and it is his further submission that the incident in question is not disputed and the accused drove the bus on the date of the alleged incident is also not disputed. Then under such circumstances, the trial Court ought to have convicted the accused.
9. It is his further submission that the facts themselves clearly go to show that because of the rash and negligent act of the accused alleged incident has taken place. He further submitted that the trial Court without looking into the sketch and other material has come to a wrong conclusion and 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.
10. Per Contra, the learned counsel for the respondent-accused vehemently argued and submitted that though PWs-1 to 3 are eye witnesses, PWs-2 and 3 not supported the case of the prosecution and they have been treated as hostile. Even the evidence of PW-1 does not support the case of the prosecution and he has also not deposed anything with regard to rash and negligent act of the accused.
11. It is his further submission that though the divider was there, the one side of the road was blocked/closed and no vehicle movement was allowed at that side, as such the driver of the bus has taken on the right side of divider of the road. It is his further submission that the width of the road and other material is taken into consideration, it is only because of the fault of the deceased the alleged incident has taken place. The trial Court after appreciating all the material has come to a right conclusion and has rightly acquitted the accused. There are no good grounds to interfere with the judgment of the trial Court. On these grounds, he prays to dismiss the appeal.
12. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
13. PWs-2 and 3 are eye witnesses to the alleged incident. PWs-4 and 5 are spot mahazar and seizer mahazar pancha to Exs.P6 and P8, they have not supported the case of the prosecution and they have been treated as hostile.
14. PW-6 is the A.S.I who received the complaint and registered the case and issued the FIR as per Ex.P13. PW-7 is the investigating officer who investigated the case and filed the charge sheet against the accused.
15. The only evidence which is available before the Court below is that of PW.1. In his evidence he has deposed that while he was proceeding to see Kambla at Katapady at around about 3.30 p.m. the bus came from Mangaluru side to go towards Udupi side and the deceased and the pillion rider came on motor cycle from Udupi side to go to Mangaluru side and at that time the private bus was coming with a great speed and dashed to the two wheeler and as a result of the same they fell down and sustained injuries. He has also identified the accused before the Court. Thereafter, the injured has been sent to the Adharsha Nursing Home for treatment and subsequently the injured succumbed to the injuries. Except that nothing has been stated by the accused.
16. Even during the course of cross examination nothing has been elicited so as to discard his evidence.
17. In order to bring home the guilt of the accused, the prosecution has to clearly establishes that the alleged incident has taken place due to rash and negligent act of the accused. Though PW-1 has deposed that the bus came in a great speed and dashed to the motorcycle, speed is not the criteria to determine that the said vehicle has been driven rashly and negligently.
18. It is the contention of the learned High Court Government pleader that the bus went to the extreme right side of the road and it has hit to the motorcycle. In order to substantiate his contention he relied upon the sketch which is marked as Ex.P14.
19. I have carefully and cautiously gone through the said sketch and the evidence of PW-1. The evidence of PW-1 if it is perused, it indicates that the bus came and hit to the motorcycle and at that time due to the impact of the rider Sudheer Shetty once again came and hit to the bus and thereafter fell down. That itself indicates that it is the rider of the motorcycle who came with a great speed and hit to the bus. If he has came slowly, then under such circumstances, immediately after the impact he again coming second time due to the jump and hit to the bus is not going to happen.
20. In that light, the sketch-Ex.P14 does not come to the rescue of prosecution to come to the conclusion that the alleged incident has taken place due to rash and negligent act of the accused.
21. Be that as it may, when all other evidence do not point out the guilt of the accused, only by relying upon Ex.P14-sketch the principle of res ipsa loquitor cannot be applied. In order to apply the said doctrine the entire materials have to be perused and appreciated.
22. As discussed above, when the rider of the motorcycle has hit the bus for second time after the impact, then under such circumstances, it creates a doubt in the case of prosecution that the alleged incident took place due to rash and negligent act of the accused.
23. In the light of the discussion held above, I am of the considered opinion that the State has not made out any good grounds to interfere with the judgment of the trial Court. The judgment of the trial Court deserves to be confirmed.
The appeal is devoid of merits and the same is liable to be dismissed. Accordingly, the criminal appeal is dismissed.
Sd/- JUDGE HB/-