IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B.A. PATIL CRIMINAL APPEAL NO.99/2019 BETWEEN:
THE STATE BY SUBRAMANYA CIRCLE POLICE, SULYA, DHAKSHINA KANNADA, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU – 01.
(BY SRI.M. DIWAKAR MADDUR, HCGP.) AND:
...APPELLANT RAMESH K., S/O LATE VISHWANTH POOJARY, AGED 43 YEARS, RESIDING AT KELEMBERI HOUSE, NEAR RAILWAY GATE, BELANDUR VILLAGE, PUTTUR TALUK, DAKSHINA KANNADA DISTRICT – 574 201.
…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 OF ACQUITTAL DATED 23.02.2018 PASSED BY THE COURT OF THE CIVIL JUDGE AND JMFC, SULYA IN C.C.NO.694/2011 ACQUITTING THE ACCUSED/RESPONDENT FOR THE OFFENCE P/U/Ss.279, 337, 338, 304(A) OF IPC AND SECTIONS 134(A)(B), 146 R/W 196 OF IMC ACT.
THIS CRIMINAL APPEAL COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The present appeal has been preferred by the State being aggrieved by the judgment and order of acquittal passed by the Civil Judge and JMFC, Sulya, in C.C.No.694/2011 dated 23.02.2018, wherein, the accused has been acquitted of the offences punishable under Sections 279 and 304(A) of IPC and Sections 134(A) and (B), Section 146 read with Section 196 of I.M.V.Act.
2. I have heard the learned High Court Government Pleader for the appellant - State.
3. Though this case is listed for order on I.A.No.1/2019 filed for condonation of delay, on perusal of the record, it is felt that the notice to respondent – accused is not necessary and the same is dispensed with.
4. The case of the prosecution as per the complaint is that, on 11.09.2010, at about 6.45 a.m., the accused being the driver of the Tipper Lorry bearing registration No.CNB-6392 came loaded with Ithachi drove from Kadapa towards Panja, in rash and negligent manner and dashed to a motorcycle which was coming from opposite direction. As a result, the rider of the motorcycle died on the spot. On the basis of the same, the complaint has been registered in crime No.72/2010. Thereafter, after investigation, the charge sheet has been filed. The learned Magistrate took cognizance, secured the presence of the accused and after recording his plea, the case was fixed for trial.
5. In order to prove the case, the prosecution examined 13 witnesses as PWs.1 to 13 and got marked 11 documents as Exs.P.1 to P.11. Thereafter, the statement of the accused was recorded by placing incriminating material against him. He denied the same and neither lead any defense evidence nor documents were produced. After hearing the learned counsel for the parties, the trial Court came to the conclusion that there is no incriminating material or circumstance against the accused and by its judgment and order, acquitted the accused of the offences. Challenging the legality and correctness, the State is before this Court.
6. Learned Government Pleader contends that the judgment of the trial Court is not sustainable as it is perverse and illegal and the trial Judge has not properly appreciated the evidence of PW.3, who is the eyewitness and other materials on record. It is further submitted that the entire evidence of all the witnesses ought to have been appreciated and proper decision ought to have taken. Without looking into all the material has erroneously passed the order of acquittal. It is his further submission that the complainant and other witnesses have identified the accused is the driver of the said Tipper Lorry. He submits that the manner in which the accident has taken place attracts Doctrine of Res Ipsa Loquitur and without applying the proposition of law, that the trial Court has erroneously acquitted the accused. On these grounds, he prays to allow the appeal by setting aside the judgment of acquittal.
7. I have heard the learned Government Pleader and perused the records including the depositions and other materials made available by him.
8. The prosecution in order to prove the case got examined 13 witnesses. PW.1 is a circumstantial witness who has admitted the alleged accident. His evidence is not going to substantiate the case of the prosecution. PW.2 is the complainant, who came to the spot after the accident has taken place. He immediately informed the police about the accident and has filed the complaint as per Ex.P.1. He is as also an witness to the spot mahazaar at Ex.P.2. His evidence will not progress the case of the prosecution.
9. PW.3 is the eyewitness to the alleged accident. In the first instance, he has not supported the case of the prosecution and he has been treated as hostile. Subsequently, when the Assistant Public Prosecutor cross-examined, he has admitted the fact that he was coming by walk and the Tipper Lorry was coming by carrying Hitachi. He does not know the deceased Naveen but he knew Rickshaw driver Dayanand as he is his neighbour. He has stated that at the time of the incident, he has not seen Tipper Lorry dashing the motorbike but towards the southern side of the road a motor bike had fallen near the house of said Dayanand. When he made an enquiry, he came to know that the Tipper Lorry which was carrying the Hitachi has hit to the motor bike and one person has died. It is admitted by PW.3 that the said accident has taken place due to the fault of the driver of the said Lorry. A close reading of the evidence of PW.3 makes it clear that in the cross-examination he has stated that he does not know the person who was driving the Lorry as he has not observed it. But nowhere during the course of cross-examination by Assistant Public Prosecutor that it has been brought on record to show that the alleged accident has taken place due to rash and negligent driving of the respondent – accused. In that light, the evidence of PW.3 is not of much helpful to progress in the matter.
10. PW.4 is an hearsay witness and he came to know about the incident by other general public. PW.5 is also one of the hearsay witness. PW.6 is the witness to the spot mahazar at Ex.P.2. PW.7 is the father of the deceased Naveen, who came to know about the incident over phone and he is an elderly person in the village. PW.8 is also an hearsay witness. PW.9 is a witness to seizure mahazaar at Ex.P.3. PW.10 has not supported the case of the prosecution and he has been treated as hostile and during the course of cross-examination, nothing has been elicited from the mouth of this witness. PW.11 is the owner of the vehicle, who has not supported the case of the prosecution. PWs.12 and 13 are the investigating officers who investigated the case and filed the charge sheet against the accused.
11. On close reading of all the material which has been produced, indicates that the evidence which has been produced before the Court is not cogent and acceptable evidence so as to bring home the guilt of the accused beyond reasonable doubt. After going through the judgment of the trial Court and other material on record, it is clear that the trial Court has come to the right conclusion and has acquitted the accused of the offences. There is no good ground to interfere with the well considered judgment and order of the trial Court.
12. In that light, I do not find any illegality or perversity in the judgment and order of acquittal of the trial Court. Hence, the appeal is devoid of merit is dismissed.
13. I.A.No.1/2019 is also disposed of. as it does not survive for consideration.
Sd/- JUDGE nvj