IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B. A. PATIL CRIMINAL APPEAL No.119 OF 2019 BETWEEN:
The State by Traffic East Police Station, Mangalore.
Represented by State Public Prosecutor, High Court Building, Bengaluru – 01.
... Appellant (By Sri.Vijayakumar Majage, Addl.S.P.P.,) AND:
Joyson Menezes, S/o Lawrence Menezes, Aged 26 years, Residing at No.3-835, Neerumarga, Adyarpadavu, Adyar village, Mangalore - 575 001.
... Respondent (By Smt. Nalina K, Amicus Curiae appointed vide order dated 20.11.2019) This Criminal Appeal is filed under Section 378(1) and (3) of Cr.P.C. praying to grant leave to file an appeal against the Judgment and Order of acquittal dated 16.04.2018 passed by the J.M.F.C. (III Court), D.K., Mangaluru in C.C.No.2570/2016, acquitting the respondent/accused For the offence P/U/S 279, 337 and 304-A of IPC.
This Criminal Appeal coming on for admission this day, the Court delivered the following:-
J U D G M E N T This petition has been filed by the State challenging the legality and correctness of the judgment and order of acquittal passed by the learned JMFC, III Court, Mangalore in C.C. No.2570/2016 dated 16.04.2018.
2. I have heard the learned Additional State Public Prosecutor for the appellant and the learned Amicus Curiae for respondent.
3. The factual matrix of the case of the prosecution in brief is, on 26.02.2016 at about 3:30 p.m. accused being the rider of the motorcycle bearing registration No.KA-19-EQ-4979 drove the same in a rash and negligent manner so as to endanger human life, when he reached near Prafulla Medical Shop he dashed against the pedestrian and as a result of the same he also fell down along with motorbike. She sustained grievous injuries, subsequently succumbed to the injuries in A.J. Hospital while she was in treatment. On the basis of the complaint a case has been registered in Crime No.33/16, after investigation the charge sheet was filed. Learned Magistrate took the cognizance, secured the presence of the accused. Thereafter, after hearing the plea of the accused, as the accused did not plead guilty and claims to be tried as such the trial has been fixed.
4. In order to prove the case of the prosecution, it has got examined 10 witnesses and got marked 16 documents. Thereafter the accused was examined under Section 313 of Cr.P.C. by putting incriminating materials as against him. He denied the said evidence. Accused has not led any evidence on his behalf. After hearing the learned counsel appearing for the parties the trial Court acquitted the accused. Challenging the same the State is before this Court.
5. The main grounds urged by the Addl. SPP is that the judgment and order of acquittal passed by the Court below is contrary to the facts and material placed on record. The Trial Court has erroneously acquitted the accused and it has resulted into miscarriage of justice. It is his further submission that the evidence of PW-1 clearly goes to show that the complaint has been filed by the son of the deceased and PWs-2 and 3 are the eye-witnesses. They have categorically deposed that because of the negligent act of the accused the alleged incident has taken place. Though there is ample material to connect the accused to the alleged crime, the trial Court has wrongly acquitted the accused. It is his further submission that the eye-witnesses are the natural eye-witnesses and they were present even while shifting the injured to the hospital in another autorikshaw, that itself goes to show that they were present at the place of incident and because of the said fact the presence of the eyewitnesses can be proved by the prosecution. Further the evidence also goes to show that the pedestrian- deceased has crossed 90% of the road and at that time alleged incident has taken place. By going into the material it goes to show the act of the accused is nothing but the negligent driving. It is his further submission that both PWs-1 and 3 have categorically stated about the negligent act of the accused. On these grounds he prayed to allow the appeal and to set aside the impugned order and to convict the accused.
6. Heard the learned Amicus Curiae for the respondent – accused.
7. It is her submission that the trial Court after considering the material placed on record has come to a right conclusion and has rightly acquitted the accused. It is her further submission that PW-1 has not stated anything about the rashness. He only deposed about the speed and negligency. Even when the entire evidence, if it is looked into, the pedestrian was intending to cross in a place wherein the human or any one is not permitted to cross the road. It is her further submission that even the evidence of PW2 goes to show that the rider of the motorcycle-accused has tried to save the deceased by applying the brake. But inspite of that they also fell and pedestrian also fell.
8. She further submitted that taking into consideration the above said facts and circumstances, the benefit of doubt has to be given to the accused. On these grounds, she prayed to dismiss the appeal.
9. I have carefully and cautiously gone through the submissions made by the learned Addl.SPP and perused the records including the lower Court records which have been secured in this regard.
10. In order to prove the case of the prosecution, it has got marked 10 witnesses. PW-1 is the complainant. On 26.02.2016 he received the information about the accident over the phone. Immediately he went to the hospital and an auto rikshaw driver was there and he told that the bike bearing No. KA-19-EQ-4979 was dashed to his mother and he also told that because of excessive speed and negligent act of the accused the alleged incident has taken place when his mother was crossing the road. He has filed complaint as per Ex.P1 and all other suggestions which have been made to this witness have been denied.
11. PW-2 is an eye witness to the alleged incident and he is also an auto-rikshaw driver. In his evidence he deposed that along with passengers he was proceeding and he stopped his auto- rikshaw in front of Prafulla Medical Shop as the passenger was intending to purchase some medicines and it was about 3:30 pm. At that time a motor cycle bearing registration No. KA-05-EQ-4979 came with great speed and driven negligently, dashed to a pedestrian who was crossing the road and the alleged incident took place. As a result of the same she sustained grievous injuries to her head and other parts of the body and she lost consciousness. On the said motorcycle two persons were there and they also fell down also sustained injuries. Immediately he sent the injured in another auto-rikshaw. He has further deposed that next day at about 10:00 to 10:45 he came to the spot and there the spot mahazar was drawn as per Ex.P2, and sketch has been prepared and he signed the same.
12. During the course of cross examination it has been elicited that accused was at about 25 mtrs. far from the place of incident and the deceased was crossing the road. There was no bus stop and accused was riding the motorbike 60 km. speed. Other suggestions have been denied by this witness. PW-3 is another eye witness. He has also deposed that he was taking passengers in autorikshaw, at about 3:30 p.m. when he was proceeding near the place of incident, accused came on motorbike bearing registration No.KA-05-EQ-4979 with a great speed and negligently dashed to a pedestrian who was crossing the road and as a result of the same she fell down and lost the consciousness. The accused and the pillion rider also fell down and they also sustained injuries to face and other parts of the body. The injured sent to hospital in another autorikshaw. During the course of cross examination he has deposed that he had seen the alleged accident from 50mtrs and he has not informed the accident to the police, except that nothing has been elicited from the mouth of this witness.
13. PW-4 is the injured pillion rider and he has not supported the case of the prosecution. He deposed that when they were proceeding on a motorbike on 26.02.2016 at about 3.30 p.m. they came near Kaikamba, at that time a lady was crossing the road, by looking at her accused applied brake, at that time accused and himself fell down and the said lady also fell down. As a result of the same he sustained injuries and he do not know what has happened to the lady as he could not see her. He was taken to Kankanadi Father Mullar Hospital and lady was taken to AJ Hospital and later he come to know that she succumbed to injuries.
14. PW-5 is the spot mahazar pancha to Ex.P2 and P3. PW- 6 is also seizure mahazar pancha to Ex.P7. He has not supported the case of the prosecution and he has been treated as hostile. PW- 7 is also a witness to Ex.P7. He has also not supported the case of the prosecution. PW-8 is the Head Constable who carried the FIR and produced before the jurisdictional Magistrate as per Ex.P16. PW-9 is the Head Constable who received the complaint as per Ex.P1, issued FIR as per Ex.P16 and he also partly conducted investigation. PW-10 is the Police Inspector who investigated the case and filed charge-sheet as against the accused.
15. On close reading of the evidence, prosecution got examined PWs-2 and 3 who are the eye witnesses to the alleged incident and in their evidence they have clearly deposed before the Court that because of the speed and negligent act of the accused, the alleged accident has taken place. Though PW-4 turned hostile and he has also deposed before the Court that alleged incident has taken place at about 3:30 p.m. and the rider of the bike applied brake as a result of the same himself and rider have fell down, at that time a lady also fell down, she also sustained injuries and they have also sustained injuries. All these material goes to show that the alleged incident has taken place as contended by the prosecution. On going through the evidence they have categorically deposed before the Court that because of the speed and negligent act of the accused the alleged incident has taken place. As could be seen from Section 279 of IPC it reads as under:
“279. Rash driving or riding on a public way. – Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.”
If any person drives any vehicle or rides, on a public way in such a manner so rash or negligent so as to endanger human life, then under such circumstances the ingredients of Section 279 of IPC are going to be satisfied. No doubt the word “Negligence” means breach of duty caused by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent or reasonable man would not do. In order to amount criminal rashness or criminal negligence, it must be found that the rashness has been of such a degree as to amount to taking hazard knowing that the hazard was of such a degree that injury was most likely to be occasioned thereby.
16. The material placed on record indicates that the road where the accident has taken place is a public road. Both the sides shops and other establishments are there and even the spot mahazar also goes to show that the lady has come from the side of Prafulla Medical Shop and she has crossed 90% of the road and at that time alleged incident has taken place. Though PW-4 has deposed before the Court that the rider of the motorbike had applied brake, inspite of that they fell down and lady also fell down and sustained injuries. If the road is a main road and he might have seen the lady crossing the road, then under such circumstances he could have taken reasonable care to prevent such act. The criminality lies in running the risk or doing such an act with recklessness and indifference to the consequences. This proposition of law has also been laid down by the Orissa High Court in the case of Rajib Netra Panigrahi, Vs. State of Orissa reported in 1991(2) CrI.L.J. 1026 wherein at para No.7 it has been observed as under:
“7. During the hearing of the case, I was taken through the impugned judgment and the material evidence on record. The learned counsel for the petitioner also argued at length on different contentions raised by him. The main thrust of the argument of the learned counsel for the petitioner was that there was no criminal rashness or negligence on the part of the petitioner, and there were also no evidence that the vehicle was moving in a high speed, and even assuming that it was in a high speed, the speed itself does not go to prove the rashness on the part of the petitioner. On a perusal of the evidence on record, and agreeing substantially with the contentions raised by the learned counsel for the petitioner that the speed of the vehicle was not expressively high, yet the evidence of the witnesses examined on the side of the prosecution namely, P.W.s 4 to 7 and also considering the evidence of D.W.1., it cannot be said that the petitioner did not at the material time drive the vehicle rashly and negligently resulting in the incident which caused the loss of a human life and caused injury to three persons.
As to the speed of the vehicle, D.W.1 and occupant of the vehicle on the rear seat has deposed that the vehicle was moving at a speed of 40 k.m. per hour. According to P.W.s 4 and 5, the vehicle was in a high speed, although the speed in kilometer per hour was not deposed to. The Junior Engineer, P.W.4 in charge of the vehicle was supposed to be acquainted with the speed of the vehicle, as he was in charge of the vehicle and was regularly moving in the vehicle in course of his duty, P.W.5, the wife of P.W.4 was also supposed to be acquainted with the speed. They have categorically stated in their evidence that they asked the accused- driver not to drive in such a high speed, but the driver did not pay any heed to their words. The admitted facts of the case are that when the vehicle took a turn near Pathara Junction, the drive could not control the vehicle, as a result of which the vehicle took a turn to the left and fell down after taking three turns, P.Ws.6 and 7 who are the children of P.Ws 4 and 5 have also spoken regarding the high speed in which the vehicle was moving. It is no doubt true, as contended on behalf of the petitioner and as supported by authorities, that high speed in driving of a vehicle does not by itself amount to rash and negligent driving. If the accused-driver was driving the vehicle on the highway and had negotiated the distance safely, it could not have been said that he was driving rashly or negligently because of the high speed. It is only because of the turning where the accident took place, and it is because of the speed that the accused could not control the vehicle and met with the accident, that the question of high or low speed becomes material for consideration. Even assuming for the sake of argument that the vehicle was moving at 40 k.m. per hour at the material time as deposed to by D.W.1, the accident is directly attributable to the fact that the petitioner could not control the vehicle in turning to the right from the main road. As a driver of the vehicle the petitioner was supposed to know at what speed he was to negotiate to turn the vehicle to the right so as to avoid any accident. The presence of skid mark on the road would also go so show that the petitioner applied brake to slow down, but the vehicle could not be controlled and it moved to extreme left and then turned turtle thrice and injured the occupants of the vehicle. It would thus appear from the foregoing discussions, that even assuming that the vehicle was moving at a normal speed, be it 40 k.m. per hour or even 60 k.m. per hour, the fact remains that as the petitioner failed to negotiate the turning in a proper manner and as he could not properly control the vehicle in the process of turning, the accident took place. It would thus be noticed that irrespective of the question of speed, the accident is directly attributable to the rash and negligent driving of the petitioner.
A few authorities have been cited at the Bar as to what amounts to criminal rashness and criminal negligence. In the Law of Crimes by Ratanlal and Dhirajlal’s (23rd Edn.1988) at page 1196 it is stated in the following words:
“Criminal rashness” is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has been arisen, it was the imperative duty of the accused person to have adopted.”
In one of the decisions of this Court in the case of Ladukishore Panigrahi v. The State, (1971) 37 CLT 1142, it is held that:-
“In order to amount to criminal rashness or criminal negligence, it must be found that the rashness has been of such a degree as to amount to taking hazard knowing that the hazard was of such a degree that injury was most likely to be occasioned thereby. The criminality lies in running the risk or doing such an act with recklessness and indifference to the consequences.”
In the said decision it is also held that merely from the speed of the vehicle, without other considerations of adverse surroundings, situation and circumstances existing at the time of the occurrence, it cannot be said that the act of the accused would amount to a criminal rashness or criminal negligence.”
17. On close reading of the said decision it has been discussed that the high speed in driving of vehicle does not itself amount to rash and negligent driving. If a driver is driving a vehicle on highway and negotiates the distance safely, it cannot be said that he was driving rashly and negligently because of the high speed. It is only because of the turning, where accident takes place and it is because of the speed that the accused cannot control the vehicle and meets with an accident, that the question of high or low speed becomes material for consideration. In that light even the evidence of PW-3 supports the case of prosecution. During the course of cross examination it has been elicited that the said vehicle was coming with 60 kms. Speed, PW4 also deposed that rider applied the brake but did not stop, both fell down and deceased also fell down. This act showing that he did not control the vehicle and has met with accident. In that light, I am of the considered opinion that the prosecution has proved the guilt of the accused beyond all reasonable doubt. The trial Court without looking into the said aspect and without consideration of the above facts and circumstances, has erroneously acquitted the accused. Here it requires interference.
Taking into consideration the above said facts and circumstances, appeal is allowed and judgment and order of acquittal passed by J.M.F.C. (III Court) D.K. Mangaluru in C.C.No.2570/2016 dated 16.04.2018 is set aside and the accused is convicted for the offence punishable under Sections 279, 337 and 304A of IPC and accused is sentenced to pay a fine of Rs.1,000/- (Rupees One Thousand Only) for the offence punishable under Section 279 of IPC and in default he is liable to undergo Simple Imprisonment for a period of 3 months. Accused is convicted and sentenced to pay a fine of Rs.500/- (Rupees Five Hundred Only) in default Simple Imprisonment for 15 days for the offence punishable under Section 337 of IPC. Accused is also convicted and sentenced to undergo Simple Imprisonment for a period of 6 months and he has to pay a fine of Rs.10,000/- in default he has to undergo Simple Imprisonment for a period of 6 months.
For having given the valuable assistance in disposal of this case, the said services of learned Amicus Curiae have been placed on record and registry is directed to pay an amount of Rs.5,000/- as a honorarium to Amicus Curiae on appropriate identification and acknowledgement.
Sd/- JUDGE BVK