IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16th DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL APPEAL No.134/2018 BETWEEN :
STATE BY TRAFFIC NORTH POLICE STATION, SURATHKAL, MANGALURU CITY, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU-560 001.
(BY SRI M.DIVAKAR MADDUR, HCGP) AND ANIL, S/O YADAVA POOJARY, AGED ABOUT 42 YEARS, R/O MITTABAILU HOUSE, KAKKAMBA, B.C.ROAD, BANTWAL-574 211.
... APPELLANT ... RESPONDENT (BY SRI K.RAVISHANKAR, ADVOCATE) 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 DATED 07.08.2017 IN C.C.NO.1697/2016 PASSED BY THE JMFC (III COURT), MANGALURU, THEREBY ACQUITTING THE RESPONDENT FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 279 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 appeal is directed against the judgment and order passed by JMFC (III Court) at Mangaluru in C.C.No.1697/2016, dated 7.8.2017 whereby the respondent-accused was acquitted of the offences punishable under Sections 279 and 304-A of IPC.
2. Learned counsel for the respondent-accused has remained absent. There is no representation on behalf of the respondent. I have heard the learned High Court Government Pleader for the appellant-State.
3. Though this matter is posted for admission with the consent of the learned High Court Government Pleader, the same is taken up for final disposal and is disposed of by this judgment.
4. The case of prosecution in brief is that on 14.1.2016 at about 9.45 a.m., the accused being the driver of tanker bearing registration No.KA-19-D-5958 drove the same in a rash and negligent manner, so as to endanger the human life and dashed to Kanthappa Shetty, who was standing by the side of the road in front of Karavali college to cross the road. Due to the said accident, he sustained severe injuries and died on the spot. On the basis of the complaint, the case has been registered and after completion of investigation, the charge sheet was filed. Thereafter, the learned Magistrate took cognizance, secured the presence of the accused and recorded his plea. Accused pleaded not guilty and claimed to be tried and as such the trial was fixed.
5. In order to prove its case, the prosecution has got examined five witnesses as PWs.1 to 5 and marked twelve documents as Ex.P1 to P12. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. However, the accused has not led any evidence on his behalf and did not mark any documents.
The trial Court after hearing both the parties, passed the impugned order acquitting the accused-respondent herein. As against the same, the State is before this Court.
6. The main grounds urged by the learned High Court Government Pleader are that PWs.1 and 2 who are the eye witnesses, have categorically deposed that it is due to rash and negligent act of the respondent-accused, the accident has taken place. PW.3 is the owner of the lorry who has also supported the case of the prosecution and he identified the accused as a driver. Though there is ample material as against the accused-respondent, the accused has been acquitted. The trial Court is not justified in acquitting the accused by giving benefit of doubt. On these grounds, he prayed to allow the appeal by setting aside the impugned order and to convict the accused.
7. In order to prove its case, the prosecution got examined five witnesses as PWs.1 to 5 and marked twelve documents as Exs.P1 to P12. On behalf of the accused no evidence was led. PW.1 is complainant who filed the complaint as per Ex.P1. He has deposed that the deceased is his father and he died in a road accident on 14.1.2016. He has further deposed that the deceased was standing on the side of the road, at that time, the accused being the driver of the vehicle bearing registration No.KA-19-D-5958 drove the same in a rash and negligent manner and dashed to his father, due to which he fell down on the road and caused grievous injuries and died. During the course of cross- examination, PW.1 has deposed that he goes to attend the work at about 8.00 a.m., and comes back to the house only around 6.00 p.m. He has admitted in the cross-examination that he has seen the said accident only after the vehicle hit. He has further deposed that he did not know which portion of the tanker dashed to his father and he has not seen the same. He has further deposed that he does not know as to what has been written in the complaint at Ex.P1 and the spot mahazar at Ex.P2. He has further deposed that his father used to move alone for the purpose of sankramana pooja and on the date of accident also it was sankaramana festival. On going through the said evidence of PW.1 it indicates that though he has deposed before the trial Court that he was accompanying his father as per the version of PW.1, he was standing on the side of the road along with the deceased and if a tanker lorry comes and hits definitely either he could have also fallen or he could have cautioned if he really seen the alleged accident. Be that as it may, even during the course of cross-examination, PW.1 has deposed that he came to know about the accident only when tanker hit his father. He has further deposed that he did not know which portion of the lorry hit to his father. Under such circumstances, his presence at the place of accident creates a doubt. In that light, the evidence of PW.1 is not going to help the case of the prosecution in any manner.
8. PW.2 is another eye witness, who has also deposed that on 14.01.2016 he was proceeding to Mangaluru in his autorikshaw and when he reached to Kodikal, 4th cross, the deceased and PW.1 were standing on the road side, by that time the accused being the driver of the tanker, drove his tanker in a rash and negligent manner and dashed to the deceased Kanthappa Shetty and he rushed to sport and found that the deceased sustained grievous injuries and the accused took the injured to the hospital. But during the course of cross-examination he has deposed that by the time he went to the place of accident, the tanker came and stopped. He has further deposed that he does not know the registration number of the tanker and by the time he went to the place of the accident, the accident had already taken place and he was called at the time of spot mahazar-Ex.P2. He has further deposed that he did not know as to what was written in Ex.P2. On going through the evidence of this witness, though he has been quoted as eye witness, his evidence clearly goes to show that he has not witnessed the alleged accident as deposed by him. Hence, the evidence of PW.2 does not repose confidence of this Court to hold that he is a material eye witness to the alleged incident.
9. PW.3 is the owner of the lorry bearing registration No. KA-19-D-5958. He has deposed that the Traffic North Police have seized his Tanker by giving notice as per Ex.P9 and he replied to the said notice as per Ex.P10. During the course of his cross-examination, though it has been elicited something, he is not the witness to the alleged accident and therefore his evidence is not helpful to the case of the prosecution.
10. PW.4 is the Head Constable who received the complaint as per Ex.P1, registered the case and issued the FIR to the jurisdictional Court.
11. PW.5 is the Investigating Officer who investigated the case and filed the charge sheet against the accused.
12. On perusal of the evidence on record, though the prosecution has got examined PWs.1 and 2, their evidence is not trustworthy and reliable. Even their evidence is not reposing confidence of this Court to hold that they have seen the alleged accident as alleged by the prosecution. When the evidence of PWs.1 and 2 is not corroborating with each other, then under such circumstance, the evidence of PWs.3 to 5 is not going to help the prosecution case in any manner. The trial Court after considering the case of the prosecution, has come to a right conclusion and has rightly acquitted the accused. There are no good grounds to interfere with the judgment and order of acquittal passed by the trial Court and the same deserves to be confirmed.
- 10 -
Accordingly, the appeal is dismissed being devoid of merits.
Sd/- JUDGE *gbb/-ck/-