IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B.A. PATIL CRIMINAL APPEAL NO.1188/2019 BETWEEN:
THE STATE BY UDUPI TOWN POLICE STATION, UDUPI. PROSECUTOR, HIGH COURT BUILDING, BENGALURU – 01.
...APPELLANT (BY SRI DIWAKAR MADDUR, HCGP.) AND:
PRAKASH, S/O MANJEGOWDA, AGED 34 YEARS, R/O PREMA NAGARA, BEHIND APMC, SAKALESHAPURA, HASSAN DISTRICT – 573 134.
…RESPONDENT 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 11.01.2019 PASSED BY THE ADDITIONAL CIVIL JUDGE AND J.M.F.C., UDUPI IN C.C.NO.149/2013 ACQUITTING THE RESPONDENT/ACCUSED OF THE OFFENCE P/U/Ss.279 AND 304(A) OF IPC AND SECTION 66 R/W 192(A) OF IMV 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 dated 11.01.2019, passed by the Additional Civil Judge and JMFC, Udupi, in C.C.No.149/2013, wherein, the accused has been acquitted of the offences punishable under Sections 279 and 304(A) of IPC and Sections 66 read with 192(A) of I.M.V. Act.
2. I have heard the learned 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 of 49 days in filing the appeal, on perusal of the record, it is felt that notice to respondent – accused is not necessary and the same is dispensed with.
4. The factual matrix of the case of the prosecution is that, on 14.10.2012, at about 8.45 p.m., the accused being the driver of the bus bearing registration No.KA- 25C-8547 drove the same in a rash and negligent manner and suddenly, stopped the bus. After boarding the passengers, the driver without giving any signal or horn, and without confirming through the cleaner of the said bus about any person was behind the bus, took the bus in a reverse direction and as a result, the bus hit one Raghuram Shetty, who was standing behind the bus by talking with one Tharesh. Due to the impact, said Raghuram Shetty fell on the ground and rear wheel of the bus passed over the head of Raghuram Shetty and sustained grievous head injuries and died on the spot. In this regard a complaint has been filed and the same has been registered in crime No.372/2012. Thereafter, after investigation, the charge sheet has been filed. The learned Magistrate took cognizance, secured the presence of the accused and thereafter, after following the formalities and by recording his plea, the case was fixed for trial.
5. In order to prove the case, the prosecution examined 11 witnesses as PWs.1 to 11 and got marked 14 documents as Exs.P.1 to P.14. Thereafter, the statement of the accused was recorded and the accused got examined one witness, who was the cleaner of the bus as DW.1. After hearing both the sides, the Court below acquitted the accused. Being aggrieved by the same, the State is before this Court.
6. Learned Government Pleader contends that the Court below without looking into the material on record has erroneously acquitted the accused. It is his submission that the impugned judgment and order of acquittal is nothing but miscarriage of justice. He submits that PWs.1 to 4 are the eyewitnesses to the alleged incident and they have categorically stated with regard to the alleged incident and the manner in which he took the vehicle in a reverse manner and caused the accident. Without looking into the evidence, the trial Court has erroneously acquitted the accused. It is further submitted that while taking the vehicle in the reverse direction, he could have taken all the precautions etc., that itself amounts to nothing but driving the bus in a rash and negligent manner. In that light, he prays to allow the appeal by setting aside the impugned judgment and order 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 11 witnesses. PW.1 is an eyewitness to the incident. He has stated that he is working in restaurant as a supplier which belongs to the deceased Raghuram Shetty and on 14.10.2012, at about 8.45 p.m., the deceased Raghuram Shetty and Vasanth Shetty were having a conversation at the bus stand and they were standing outside. He was talking with one Tharesh, who is having his own booking office. At that time, one VRL bus bearing registration No.KA 25C 8547 came to service bus stand. The bus moved front and moved to backside and dashed to Raghuram Shetty. As a result of the same, he sustained injuries and the driver of the bus escaped from the spot. He has seen the driver and has identified the accused before the Court. During the course of cross- examination, he has deposed that at about 8.00 p.m., he was talking to one Tharesh and there is a platform space of 6 feet and he was standing outside the shop. He has deposed that all the buses have moved from the spot and he has seen his owner fallen under the wheels of the bus. He has deposed that the said accident has occurred about 7 to 8 feet distance form the platform and on the same night there was no electricity supply in the said spot. Other suggestions were denied.
9. PW.2 is the eyewitness who has deposed that he has not seen the driver of the said bus and do not know whether the accused was driving the said bus. He has been treated as partly hostile and cross-examined him. He has admitted that he has seen the accused driving the bus who is present before the Court. But when the said witness was cross-examined, he has deposed that he do not know as on the date of the accident, whether the accused was driving the said bus or not.
10. PW.3 is one of the eyewitness to the accident.
He has deposed that he knew the deceased and he has seen the said accident. On 14.10.2012, at about 8.30 to 8.45 p.m., when he closed his shop and about to go home, at that time, the said deceased Raghuram Shetty was talking with CW.1 in the Bus Stand. At that time, one VRL bus moved front and without giving any signal moved backwards and dashed to the deceased Raghuram Shetty and Vasanth Shetty. As a result, Raghuram Shetty fell on the left side of the back portion of the bus and the rear wheels passed over on his head. He has also identified the accused. During the course of cross-examination, he has admitted that after the accident he has seen the accused running out of the bus and it was raining during the time of the accident. He do not know whether there was electricity supply on that day at the said spot. Other suggestions have been denied.
11. PW.4 is an eyewitness. In his evidence, he has reiterated the evidence of PWs.1 to 3. During the course of cross-examination, he has admitted that three buses were there in the platform and there was no electricity supply on the said date. When the bus was moving backwards, the lights of the buses were on and the said bus moved 30 feet forward and 20 feet moved backwards suddenly and when the bus was moving backwards, the public started screaming and at that time, the bus dashed to the said Raghuram Shetty. Because of this sound, he came to know that the accident has occurred in the said spot.
12. PW.5 is the spot mahazar pancha to Ex.P.1.
PW.6 is also a mahazaar witness to Exs.P.3 and P.4, the photographs. PW.7 is Inspector of Motor Vehicle, who inspected the vehicle involved in the accident and has given a report as per Ex.P.6. PW.8 is the Assistant Manager of VRL company. In his evidence he has deposed that the alleged bus had involved in the accident and he has given the reply to the notice issued by the police, stating that accused was the driver of the said bus on the date of the alleged accident. PW.9 is a hearsay witness. He has deposed that on 14.10.2012, the cleaner of the bus informed him that when the accused while taking the bus in reverse direction caused the accident. PW.10 is the Investigating Officer, who after investigation has filed the charge sheet. PW.11 is the police official who has registered the FIR as per Ex.P.14 on the basis of the complaint at Ex.P.13.
13. On behalf of the respondent – accused, the cleaner of the bus has been examined as DW.1. During the course of his evidence, it has been elicited that when the driver was taking the bus in reverse, he checked from the backside and at about distance of 10 to 15 feet, he saw one person was lying on the road and immediately, he informed the same to the driver and the driver stopped the bus by putting hand-brake and informed the same to his office. He has further stated that the bus in question has not at all caused any accident and all other suggestions were denied.
14. On close reading of all the material which has been produced and the submissions of the learned Government Pleader, it indicates that PWs.1 to 4 are the eyewitnesses to the alleged accident. In their evidence, they have deposed that the deceased was standing at the bus stand and he was having conversation with one Tharesh. At that time, the bus moved front and moved back and while taking reverse, it hit to the deceased and as a result of the same, he sustained injuries and died. During the course of cross-examination, PW.1 has admitted that when he saw the said accident, three buses were there on the platform and there was no electricity supply on the said date and when the bus was taken reverse, the light of the bus was on. PW.2 in his evidence has also deposed that he has not seen the driver of the said bus and subsequently, treated as hostile and in his cross-examination, he has admitted that he has seen the accused driving the bus. During the course of cross- examination he has stated that he do not know whether the accused was driving the said bus. In that light, deposition of evidence of PW.2 is not credit worthy so as to accept the same.
15. PW.3 has reiterated the evidence of PW.1.
During the course of cross-examination, he has deposed that it was raining at the time of accident and he does not remember whether there was electricity supply at the spot.
PW.4 has admitted that three buses were there on the platform and there was no electricity supply on the said date and when the bus was moving backward, the light of the bus were on. If this evidence is looked into with the evidence of DW.1, in his evidence he has deposed that when the driver of the bus was taking the bus in a reverse to stop the bus on the platform, he observed that one person was sleeping behind the bus. Immediately, the driver of the bus put the hand brake and stopped the bus. He has further deposed that the person who was sleeping was unconscious and the same was informed to his office. But taking into consideration the evidence of DW.1, it indicates that prior to the bus in question taking the reverse direction, three bus were already there on the platform and the cleaner of the bus has checked it from backside and at about 10 feet to 15 feet, he saw one person was lying on the road and immediately, he has informed the same to the driver and the driver stopped the bus by putting the hand brake. He also informed the alleged fact to the office. PW.4 has admitted in his cross- examination that there was no electricity supply on the said date and that the bus was moving backwards. All these materials if it is looked into the prosecution has utterly failed to prove that it is the bus which has been driven by the accused caused the death of the deceased.
16. In the absence of any such material and when the doubt has been created in the case of the prosecution, under such circumstances the benefit of doubt should be given to the accused.
17. Be that as it may, even the evidence discloses that the accident has occurred 7 to 8 feet distance from the platform and the deceased was standing by talking with some other person and at that time, the alleged incident has taken place. It is also brought on record that the cleaner looked from backside and checked it as to whether there was any hurdle and when he gave the signal, the bus was taken in reverse. That indicates that the driver of the bus has taken the reasonable care which an ordinary deligent driver ought to have taken. When conductor by observing behind the bus and giving signal to take the bus reverse, then he cannot be held responsible for the act of conductor. Be that as it may, the placed where the deceased was standing was not a place for him to stand and ought to have been stood on the platform. In that light also, no explanation has been given by the prosecution.
18. Looking from any angle I am of the considered opinion that the prosecution truly failed to prove that the accused has driven the bus in a rash and negligent manner and caused the alleged accident.
19. In the light of the discussions held above, I find no ground to interfere in the impugned judgment of the trial Court as it is neither perverse nor illegal. In that light, appeal is devoid of merit and the same is liable to be dismissed. Accordingly, the appeal is dismissed.
I.A.No.1/2019 is also disposed of as it does not survive for consideration.
Sd/- JUDGE nvj