THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR. JUSTICE B.A.PATIL CRIMINAL APPEAL NO.1189 OF 2019 BETWEEN:
The State by S.H.O., Kapu Police Station, Reptd. By State Public Prosecutor, High Court Building, Bengaluru. …Appellant (By Sri.M.Divakar Maddur, HCGP) AND:
Nandeesh, S/o Satheesh, Aged 31 years, D.No.A/85, 5th Hudco Main, Kunjibettu Post, Doddanagudde, Shivalli Village, Udupi Taluk. … Respondent.
This Criminal Appeal is filed u/s 378(1) and (3) of Cr.P.C., praying to grant leave to appeal against the impugned judgment and order of acquittal dated 12/02/2019, passed by the Court of II Additional Civil Judge and JMFC, Udupi in C.C.No.3545/2016, acquitting the accused/respondent for the offence punishable u/s.279 and 304-A of IPC etc.
This appeal coming on for orders this day, the Court delivered the following;
JUDGMENT Notice to respondent is not necessary and hence the same is dispensed with.
Though this appeal is listed for orders on interlocutory application, with the consent of the learned H.C.G.P appearing for the appellant-State, the same is taken up for final disposal.
2. The present appeal has been filed by the State challenging the legality and correctness of the judgment passed by the II Additional Civil Judge and JMFC in C.C.No.3545/2016, dated 12/02/2019 whereunder respondent/accused has been acquitted of the offences punishable under sections. 279, 304-A of the IPC.
3. The case of the prosecution in brief is that on 11/05/2016 at about 7.30 p.m., accused being the driver of Tempo Traveller bearing Regn. No.KA 20/G -325 drove the same in a rash and negligent manner endangering human life on NH 66 from Kaupu side towards Udupi, dashed to a pedestrian by name Poovappa Puthran. as a result of which, he sustained grievous injuries and on the way to hospital he succumbed to the injuries. On the basis of the complaint, a case has been registered.
4. It is the submission of the learned H.C.G.P for the appellant- State that the judgment and order of acquittal passed by the trial court is contrary to law and facts. He further submitted that the trial Court while passing the impugned order has failed to appreciate the evidence in its right perspective. The oral testimony of P.Ws.2, 7 and 8 clearly indicates that the accused was the driver of the offending vehicle and because of the accident, a pedestrian sustained injuries and on the way to hospital he succumbed to the injuries. He further submitted that the driver of the offending vehicle has not taken proper precaution and hence prayed that the judgment of the trial Court is liable to be set aside.
5. I have carefully and cautiously gone through the submissions of the learned HCGP and perused the evidence and other materials made available by H.C.G.P.
6. P.W.1 is the complainant. He has not supported the prosecution case and has been treated as hostile. Even in his cross-examination, nothing has been elicited so as to substantiate the case of the prosecution. P.W.2 and P.W.3 are also eye witnesses to the alleged incident and they are also spot mahazar witness as well as seizure mahazar witness to Ex.P.3, Ex.P4 and Ex.P.6. During the course of evidence, they have deposed that they have reached the spot after occurrence of the accident and they do not know the contents of Ex.P.3, Ex.P4 and Ex.P.6.
P.W.4 and P.W.12 are the witnesses to the spot mahazar and seizure mahazar. P.W.5 and P.W.6 are also eye witnesses to the incident. They have also not supported the prosecution case and they have been turned hostile. Nothing has been elicited in the cross examination of P.W.2, P.W.3, P.W.4, P.W.5, P.W.6 and P.W.12 to substantiate the case of the prosecution. P.W.7 and P.W.8 are the police officials who were traveling in the vehicle which met with an accident and they have not deposed anything with regard to the rash and negligent act on the part of the accused at the time of the alleged incident.
7. P.W.9 is the A.S.I., who registered the case and issued FIR as per Ex.P18. P.W.10 is the in charge of D.A.R., Udupi. In his evidence, he has deposed that on 11.05.2016, the accused was appointed as a driver of the Tempo Traveler and the said vehicle met with an accident and he has identified the accused. During the course of cross examination, he has admitted that the register will be maintained for having allotted the duties of driver and when he reached the spot, no vehicle was found at the spot.
8. P.W.11 is D.C.I.B, Mangaluru. P.W.12 is the spot and seizer mahazar panchas to Exs.P3 and P6. P.W.13 is the Police Inspector, who investigated the case. All these material witnesses have not supported the case of the prosecution except P.W.13 and they have been treated as hostile.
9. Though, P.Ws.7 and 8 have deposed about the accident, they have not deposed about the rash and negligent act of the accused. When the material witnesses have not supported the case of the prosecution, then the only witness left is official witness.
10. I am conscious of the fact that if the accident has taken place and if the fact discloses about the rash and negligent act, then under such circumstances, the accused can be convicted. But in the instant case, no evidence has taken on record so as to substantiate the case of the prosecution.
11. Looking from any angle, prosecution has utterly failed to prove the guilt of the accused beyond all the reasonable doubts.
12. I have carefully and cautiously gone through the judgment of the lower court, elaborately after discussing the evidence of witnesses, the court below has come to a right conclusion by acquitting the accused. There are no good grounds to interfere with the order of the lower court. The judgment of the trial Court is neither perverse nor illegal and in the light of the discussion held by me above, the appeal is devoid of merits and liable to be dismissed and as such, the appeal is dismissed.
In view of disposal of main appeal, I.A.No.1/2019 for condonation of delay of 34 days does not survive for consideration. Accordingly, the I.A.No.1/2019 is also dismissed.
Sd/- JUDGE Msu/NR