IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.100 OF 2019 BETWEEN:
The State, By Traffic West Police Station, Mangalore, Rep. by State Public Prosecutor, High Court Building, Bengaluru – 01. ...Appellant (By Sri. M. Divakar Maddur, HCGP) AND:
Narayana Suvarna, S/o. Rukmayya Poojary, Aged 36 years, Residing at Boliyar Site House, Boliyar Village & Post, Mangaluru D.K. District – 575 001. ...Respondent (Respondent Served and unrepresented) This Criminal appeal is filed under Section 378(1) and (3) of Criminal Procedure Code, praying to grant leave to appeal against the judgment and order dated 16.03.2018 passed by the Court of JMFC (III Court) at Mangaluru in C.C.No.800/2014, acquitting the accused/respondent for the offence punishable under Sections 279, 304A of IPC.
This Criminal appeal coming on for Orders, this day, the Court made the following:
JUDGMENT Heard learned HCGP for the appellant-State. Though notice is served, the counsel for the respondent- accused has remained absent.
2. Though this case is listed for hearing on interlocutory application, with the consent of learned HCGP, the same is taken up for final disposal.
3. The present appeal has been preferred by the State aggrieved by the judgment and order of acquittal passed by JMFC (III Court), Mangaluru, in C.C.No.800/2014 dated 16.03.2018, whereunder accused-respondent was acquitted for the offence punishable under Sections 279 and 304(A) of IPC.
4. The factual matrix of the case of the complainant before the court below is that on 30.10.2013 at about 6.45 p.m., accused being the driver of the bus bearing registration No.KA-19-C-3002 drove the same in a rash and negligent manner so as to endanger the human life and dashed against deceased Abdul Lathif, who was standing in the bus stop along with CW-1 and CW-2. Due to the impact, he fell down on the road and sustained severe injuries and was shifted to Yenapoya Hospital and he succumbed in the hospital while under treatment. On the basis of the complaint, the case was registered in Crime No.109/2013. Thereafter, investigated and charge sheet was laid against the accused for the alleged offence.
5. The learned Magistrate took cognizance and secured the presence of the accused and after following the formalities, plea was recorded. Accused pleaded not guilty and claimed to be tried and as such, trial was fixed. To prove the case of prosecution, it got examined 09 witnesses and got marked 13 documents.
Thereafter, statement of the accused was recorded under Section 313 of Cr.P.C. Accused has not led any evidence nor has produced any documents.
6. After hearing the learned counsel appearing for the parties, the Court below has acquitted the accused. Challenging the legality and correctness of the same, the State has preferred the present appeal.
7. It is the submission of the learned HCGP that the judgment and order of acquittal passed by the Court below is contrary to law and the facts of the case. It is further submitted that PW1 and 2 are the eye witnesses to the alleged incident and they have clearly stated that when the deceased was standing to board the bus, at that time, the driver of the bus came with great speed and dashed against the deceased as a result of the same, he succumbed to the injuries. The trial Court without considering the evidence of PW2 has come to a wrong conclusion and has wrongly acquitted the accused. It is further submitted that the records clearly goes to show that the deceased was standing in the bus stop and at that time, the alleged incident has taken place. The said aspect has also not properly been considered and appreciated by the trial court. He further submitted that accused has not disputed the involvement of the vehicle in the alleged accident and he has not given any explanation. Under such circumstances, the trial Court ought to have convicted the accused. On these grounds, he prays to allow the appeal and set aside the impugned order.
8. I have carefully and cautiously gone through the submission made by learned HCGP and he has also made available the evidence of all the witnesses and documents. On going through the records, the prosecution in order to prove its case got examined nine witnesses. PW1 is the complainant and he is also the eye witness to the seizure mahazar of the bus Ex-P2. In his evidence, he has deposed that on 30.10.2013 at about 6.30 p.m., after completing his business, he came to Mangaluru State Bank Service bus stop. When he was waiting for the Aruna bus, at that time CW1, CW2 and deceased Abdul Lathif was also waiting for the bus. At about 6.30 p.m., the bus came from the side of the S.P.Circle with great speed and dashed to Abdul Lathif and at that time CW2 made hue and cry and when he went to the place of the incident, he saw that the deceased has sustained severe injuries to his chest, legs and hands and he was not in a position to speak. CW2 and CW3 took him to Wenlock hospital and for higher treatment, he was taken to Yenapoya Hospital, where the injured succumbed on the same day. He has further deposed that he has filed the complaint as per Ex.P1, subsequently Mahazar was drawn at Ex.P2. This witness is partly treated as hostile. Even during the course of cross-examination, nothing has been elicited so as to substantiate the case of the accused. PW2 is the mother of the deceased and eye witness to the alleged incident. In her evidence, she has deposed that they were waiting for the bus and at about 6.45 p.m., Aruna bus came carelessly and dashed to his son and went ahead and stopped and his son sustained injuries to his head, legs and chest and immediately, he was taken to wenlock hospital and the same was informed over the phone to his wife and about 9.30 p.m., he succumbed to the injuries. During the course of cross- examination, she has deposed that by her right side the deceased was standing and near the place of accident there were shops and many buses will also stop in the said bus stop including the KSRTC bus. Except that nothing has been elicited from the mouth of this witness.
9. PW3 is another eye witness to the alleged incident. He has also deposed that about three years back he was waiting near service bus stop along with CW-2 and deceased Lathif was waiting for the bus and he was also waiting for the bus and at that time, the bus came from Dharga side with great speed and dashed to Lathif and thereafter, the bus stopped little away about 30 mtrs from the accident spot. He has also identified accused before the Court. During the course of examination, he has deposed that many other persons were also waiting in the bus stop and he has admitted that when the said bus enters into the bus stop then, only they can see the bus. He has further admitted that at a distance of 30 mtrs, police station is there and he was standing right to the deceased Abdul Lathif and along with Abdul Lathif, PW2 was standing and deposed that Aruna bus was the last bus to their village and because of that everybody in order to board the bus were waiting, at that time, many people will run to hold the seat. On the date of alleged incident also, people ran to catch the seat. Except that nothing has been elicited from the mouth of this witness.
10. PW-4 is mahazar witness at Ex.P2. PW5 is the owner of the bus bearing registration No.KA-19-C- 3002, who has deposed that at the time of accident, accused was driving the said bus and he has also identified the bus. PW6 is the head constable, who registered the complaint on the basis of Ex.P1 and thereafter, he has issued FIR as per Ex.P2. PW8 the carrier of the FIR, who took the FIR and submitted the same to Jurisdictional Court. PW8 partly investigated the case. PW9 investigating officer investigated the case and filed the charge sheet against the accused.
11. I have carefully and cautiously gone through the submissions made by the learned HCGP and perused the records and evidence made available by the learned HCGP.
12. On close reading of the evidence, which has been discussed above, though PW1 is the eye witness, nowhere he has stated in his evidence that the alleged accident has taken place due to rash and negligent act of the driver-accused. He has only deposed that said bus came with great speed and dashed to Abdul Lathif. Though PW2 is also the eye witness to the alleged incident, in his evidence she has deposed that the said bus came carelessly and dashed to deceased. She has not deposed that the said bus was driven by the accused rashly and negligently. PW3 is also the witness to the alleged accident and he has not spoken with regard to the negligence of the driver of the bus and he has only deposed that the said bus came with a great speed and dashed to deceased and stopped little away from the accident spot.
13. When the entire evidence of PW-1 to 3, if perused, it clearly makes out the case that many persons were waiting to board the bus and as it was the last bus when the bus came near the bus stop and stopped, many were in a hurry to board the bus and get the seat. At that time, the deceased has sustained injuries.
14. Be that as it may, the evidence of PW3 goes to show that he was standing behind the deceased and deceased and PW2 were standing together. If really the bus has come in a rash and negligent manner and dashed to the deceased and thereafter, it went and stopped at a distance of 30mtrs, then under such circumstances, definitely PW2 should have sustained injuries. But the evidence and materials goes to show that PW2 has not sustained any injuries. Under such facts and circumstances, when the evidence of PW3 to the fact that many persons ran to hold the seat in the bus, deceased also went in order to hold the seat for his mother. In that context, he might have sustained injuries and it is not alleged that the said incident has taken place due to rash and negligent act of the respondent-accused. Other witnesses have not substantiated the case of the prosecution to prove the guilt of the accused in any manner. Looking from any angle, the prosecution has not made out good grounds to convict the accused. I have carefully and cautiously gone through the judgment of the trial Court. The trial court have considered the evidence and material placed on record has rightly acquitted the accused. There are no good grounds to interfere with the judgment of the trial Court. The appeal is devoid of merits and liable to be dismissed.
Accordingly, the appeal is dismissed.
Sd/- JUDGE ag