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.349/2019 Between:
The State by Mangaluru Rural Police Station Rept. by State Public Prosecutor High Court Building Bengaluru – 560 001. …Appellant (By Sri.Vijay Kumar Majage, Addl.SPP) And:
Shamshuddin Sab S/o Hussain Sab Aged 42 years Residing at Agasimane Budihala House Shirahatti Taluk Gadag District-582 120. …Respondent (By Sri.K.Prasanna Shetty, Advocate) This Criminal Appeal is filed under Section 378(1) and (3) of Cr.P.C., pleased to grant leave to appeal against the judgment and order dated 03.10.2018 passed by the Court of the JMFC (III Court) at Mangaluru in C.C.No.3653/2013 acquitting t he accused/respondent for the offences p/u/s 279, 337, 304A of IPC.
This Criminal Appeal is coming on for Orders, this day, the Court delivered the following:
J U D G M E N T This Appeal has been preferred by the appellant-State challenging the judgment and order of acquittal passed by the JMFC (III Court), Mangaluru in C.C.No.3653/2013 dated 03.10.2018.
2. I have heard the learned Additional SPP for the appellant-State and learned counsel appearing for the respondent-accused.
3. The gist of the case as per the case of the prosecution is that on 12.11.2012 at about 1.00 p.m the accused being the driver of KSRTC bus bearing registration No.KA-19-F-2911, drove the same in a rash and negligent manner so as to endanger human life and when the said bus came near Kanakanady Village of Naguri opposite to Sowmya Wood Works, the driver of the bus overtook the tempo and came on extreme right side and dashed to auto- rickshaw bearing registration No.KA-19-C-5317, which was coming from opposite side from Pumpwell towards Kanakanady Railway Station and as a result of the same, the driver of the auto-rickshaw and inmates of the auto- rickshaw sustained injuries and immediately they were shifted to the hospital and there the deceased succumbed to the injuries. On the basis of complaint, a case has been registered in Cr.No.314/2012 and after investigation the charge sheet was filed.
4. The learned Magistrate took cognizance to secure the presence of the accused and after filing of the charge sheet, following the formalities of serving the copies his plea was recorded. The accused pleaded not guilty and he claims to be tried, as such, trial was fixed.
5. In order to prove the case of the prosecution, it has got examined 10 witnesses and 18 documents. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. and the accused denied the incriminating material. After hearing the learned counsel appearing for the parties, the impugned judgment of acquittal was passed. Challenging the legality and correctness of the said order, the State is before this Court.
6. The main grounds urged by the learned Additional SPP are that the learned trial Judge without considering the material placed on record has come to a wrong conclusion and wrongly acquitted the accused. It is his further submission that PW.1 in his evidence has clearly stated that the driver of the bus took the bus with great speed by overtaking the tempo came to extreme right side and dashed to the auto-rickshaw. The said evidence is corroborated with the spot mahazar and sketch as per Exs.P6 and P7. It is his further submission that the accident is not in dispute. The only contention which has been taken is that the driver of auto has drove the said vehicle in right side and alleged incident has taken place. But the said accident has not taken on the right side.
7. It is his further submission that the trial Court only by relying upon Ex.P7 that the alleged incident has taken place in the mid of the road. But actually, if the evidence of PW.1 is taken and that Exs.P6 and P7 if they are looking into the doctrine of res ipsa loquitur is made applicable. It is his further submission that the trial Court has also observed that PW.1 being the driver of the auto- rickshaw has not filed any complaint. But the complaint has been filed by the husband of the deceased and it is well settled proposition of law that anybody can set the criminal law into motion. Under such circumstances, the observation made by the trial Court is not justifiable.
8. He further submitted that there is no delay in filing the complaint. It is his further submission that even PWs-1, 3 and 4 they have also supported with regard to alleged incident. The driver of the bus came to be examined as DW.1 and he has also admitted the alleged incident. Then, under such circumstances, the trial Court ought to have given conviction to the accused.
9. It is his further submission that the trial Court without looking into the evidence and material placed on record has wrongly acquitted the accused. On these grounds he prays to allow the appeal and to set aside the impugned order and convict the accused.
10. Per-contra, the learned counsel for the respondent vehemently argued and submitted that the evidence of PWs.1 and 2 goes to show that while overtaking the tempo the alleged incident has taken place but actually the driver of the auto was intending to take a turn towards Kankanady railway station and in that context the alleged incident has taken place. It is his further submission that Ex.P7-sketch clearly goes to show that the alleged incident has taken place in the middle of the road. The trial Court has rightly taken into consideration the said fact and has rightly acquitted the accused.
11. It is his further submission that there are so many contradictions in the evidence of the prosecution.
PW.1 in his evidence has deposed that immediately after the impact the auto rickshaw turned and rotated and stood there itself. But PWs.4 and 7 have deposed that immediately after the impact of the said Auto has gone and fell in a ditch that itself creates a doubt in the case of the prosecution.
12. It is his further submission that if any doubt arises in the case of the prosecution, then the benefit of the doubt has to be given to the accused. In the trial, by considering all the evidence and material placed on record, the trial Court came to the conclusion that the prosecution has not proved the guilt of the accused beyond all doubts. On these grounds, he prays to dismiss the appeal.
13. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records and even the learned Additional SPP made available all the records of evidence and documents got marked before the Court below.
14. On the close reading of the said records, the prosecution in order to establish its case got examined 10 witnesses. PWs.1 to 4 are material witnesses who were traveling in auto-rickshaws which met with an accident. As could be seen from the evidence of PW.1, he was the driver of the auto-rickshaw which met with an accident. In his evidence, he has deposed that as per the request made by PW.2, the husband of the deceased, he has hired two auto- rickshaws and one auto-rickshaw in which wife and daughter were sitting and in another auto-rickshaw his mother and himself were sitting and the said auto- rickshaw was reaching Naguri at that time the KSRTC came by overtaking the tempo and dashed on the front side of the auto-rickshaw and in order to avoid the same he tried to take the auto-rickshaw on the left side but the right side portion of the bus hit the auto and as a result of the same the auto turned around and alleged incident took place. Immediately, the injured were taken to the Wenlock hospital and there the injured succumbed to the injuries and he has suffered injuries to the eye. During the course of cross-examination, he has admitted that in order to go to Kankanady junction railway station he has to take a turn by putting the indicator.
He has further deposed that at that time no vehicle have proceeded in front of the said auto-rickshaw. He has further deposed that he could not avoid the accident by taking auto on the left side as there was a ditch. He has further deposed that the driver of the bus applied the brake and came and hit the auto-rickshaw and alleged accident took place near Kankanady railway station. He also deposed that there were shops around two sides of the road. Other suggestions have been denied by this witness.
15. PW.2 is the husband of the deceased and he is the complainant but he has not said anything with reference to the alleged incident is concerned. He has deposed by the time he reached already the people have gathered and the auto-rickshaw in which the wife and the daughter were traveling, it was standing on the left side of the road and they have suffered with injuries.
16. It is further deposed that he has not seen the accident with his eyes. The said witness is treated as hostile. Even during the course of cross-examination nothing else has been elicited.
17. PW.3 is the daughter of PW.2 she is also injured witness, she has deposed that herself and the deceased were going in the said auto and the KSRTC Bus by overtaking the tempo came and hit to the said auto- rickshaw and she felt that the said auto-rickshaw is falling and she sustained injuries and she was in semi consciousness and the said accident has taken place because of the speed of the bus. This witness has also been treated as hostile. During the course of cross- examination, nothing has been else elicited and other suggestion which has been made them have denied except admitting that the alleged incident has taken place in front of Soumya Wood works.
18. PW.4 is another Auto driver in which PW.2 was proceeding. He has also deposed that the driver of the KSRTC bus by overtaking the tempo came and dashed to the auto-rickshaw and as a result of the same the said auto-rickshaw turtled and the inmates sustained injuries. He has further deposed that due to overtaking the bus the alleged accident took place. During the course of cross- examination nothing has been else elicited so as to discard the evidence of the said witness.
19. PW.5 is the panch witness to Ex.P6 spot mahazar and P7-Sketch. PW.6 is the conductor of KSRTC Bus he has not supported the case of the prosecution and he has been treated as hostile. PW.7 is the manager of the shop Soumya Wood Works. He has deposed that when he came out of the said shop a rickshaw was fallen into drain and the auto driver and two female members were there they have sustained injuries and he has sent them to the hospital. Except that nothing has been elicited from the mouth of this witness.
20. PW.8 is the traffic controller KSRTC bus that he has spoken with regard to the accused was a driver and to the notice reply was given as per Exs.P14 and P15. PW.9 is the police inspector who investigated the case and filed the charge sheet against the accused. PW.10 is the head constable who received the complaint and registered the case and issued the FIR as per Ex.P18 and they have also conducted the spot mahazar and inquest mahazar and the sketch. During the course of cross examination nothing has been else elicited so as to discard the evidence. With the above evidence let me consider whether prosecution has proved the guilt of the accused.
21. With the above evidence, let me consider whether the accused has committed the alleged offence as contended by the prosecution.
22. It is well settled proposition of law that in order to constitute an offence either under Section 279 or under Section 304(A) of IPC there must be rash or negligent act on the part of the driver of the auto rickshaw/KSRTC bus driver.
23. As per the case of prosecution, the driver of the KSRTC bus by overtaking the tempo, came to the extreme right side and dashed to the auto rickshaw, in which, the deceased and P.W.3 were proceeding.
24. P.W.1 is the injured auto driver whose auto met with an accident. Nowhere in his evidence he has deposed that the alleged incident has taken place due to the rash and negligent act of respondent-accused, the driver of the KSRTC bus. All the three eyewitnesses have deposed consistently that the driver of the bus overtook the tempo and dashed to the rickshaw which was coming on the opposite side. But it is the case of the accused that when the driver of the auto rickshaw wanted to take a turn to go to Kankanady Railway junction, at that time, the alleged accident has taken place. It is not in dispute that the bus in question was coming from Padil junction to Pumpwell circle and the said auto rickshaw was coming from Pumpwell side to go to the Kankanady Railway Station and at that time, the alleged incident has taken place.
25. During the course of evidence of P.W.1 he has deposed that the bus overtook the tempo and at that time no vehicles were there on the front of the said auto rickshaw and only some two wheelers were proceeding. In order to avoid the impact he tried to take the auto to the left side, but since there was ditch, the bus hit to the rickshaw. The manner in which the explanation given by P.W.1 itself indicates that the autorickshaw has come to the right side of the road intending to take a turn towards Kankanadi railway station. The said railway station turn was approximately at a distance of half a kilometer from the place where the alleged incident has taken place. As could be seen from Ex.P7 sketch, it indicates that on both sides there is a mud road and thereafter, there is a ditch and the alleged incident has taken place at a further distance of approximately six feet from that place. Under such circumstances, the accident has taken place as contended by the accused and not in the manner in which the prosecution has made out.
26. Even as could be seen from the evidence of P.W.7 he has deposed that immediately after hearing the sound he came and saw that the said rickshaw had fallen into a drainage and the inmates have sustained injuries. However, as per the evidence of P.Ws.2 and 3, the auto rickshaw turned turtle and P.W.1 has stated that due to the impact the auto rickshaw turned and stopped. As such, the prosecution has not come up with clean hands. Looking from any angle, the prosecution has not clearly established the fact that the alleged accident has taken place in the manner as alleged by the prosecution. Even the principles of res ipsa loquitur cannot be made applicable to the facts and circumstances of the case.
27. Though it is contended by the learned Additional State Public Prosecutor that the Court below has wrongly come to the conclusion that the alleged incident has taken place on the middle of the road, but the evidence of P.W.1 if taken into consideration, he has deposed that he tried to take the rickshaw to the left side of the road and if he was already there on the left side of the road, the question of again further taking the auto rickshaw to the left side does not arise.
28. Taking into consideration the above facts and circumstances, the trial Court has rightly exercised its discretion and has given the benefit of doubt to the accused since it is well settled proposition of law that if any doubt arises in the prosecution case, the benefit of doubt should go to the accused. No good grounds are made out by the State to interfere with the judgment of the trial Court. The judgment of the trial Court deserves to be confirmed.
The appeal being devoid of merits, the same is liable to be dismissed and accordingly, it is dismissed.
Sd/- JUDGE Hb/bkp