Karnataka High Court
State Of Karnataka vs Mohammed Muzaraf on 25 November, 2020
Author: Ravi.V.Hosmani
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25 T H DAY OF NOVEMBER 2020
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
CRIMINAL APPEAL NO.100174/2014
BETWEEN
State of Karnataka
Rep.by the Bhatkal Town P.S.,
Through the Addl.State Public Prosecutor,
Advocate General Office,
High Court of Karnataka
Dharwad Bench.
... Appellant
(By Shri A.Venkat Satyanarayana, HCGP)
AND
Mohammed Muzaraf,
s/o Abdul Matin,
aged 31 years, occ: Driver,
R/o Khalifa Street, Bhatkal.
... Respondent
(By Shri Girish S.Hiremath, Amicus Curiae)
This Criminal Appeal is filed under Section 378(1)
and (3) of Cr.P.C. seeking to set aside the judgment
and order of acquittal dated 17.09.2013 passed in
C.C.No.1741/2007 by the learned Principal Civil Judge
and J.M.F.C. Court, Bhatkal and to convict the
respondent/accused for the offences punishable
2
U/secs.279, 337 & 304-A of IPC and U/sec.3(A) r/w
Sec.181 of M.V. Act.
This appeal being reserved for judgment on
11.11.2020, this day, the court, delivered the
following:
JUDGMENT
Challenging the judgment dated 17.09.2013 passed by the Principal Civil Judge and J.M.F.C. Bhatkal (hereinafter referred to as the 'trial Court' for short) in C.C.No.1741/2007 acquitting the accused for the offences punishable under Section 279, 337 and 304A of Indian Penal Code (hereinafter referred to as 'IPC' for short) and Section 3(a) r/w Section 181 of Motor Vehicles Act (hereinafter referred to as 'M.V.Act', for short), the above appeal is filed by the State.
2. The brief facts leading to filing of this appeal is that a complaint was given on 27.08.2007 at 11.00 p.m. by Muktar son of K.P.Hasan stating that at about 10.15 p.m. he closed his shop and was 3 returning home. When he was near the Municipal Garden after Bhatkal Urban Bank, a motorcyclist going infront of him was dashed head-on by another motorcycle coming from Bhatkal bus stand and going towards Old bus stand in high speed. Due to the accident, both the riders fell down. The complainant took care of the bike riders. He saw that the motorcycle going infront of him was a Yamaha bike bearing registration No.KA-30/H-7678 ridden by Asbat Ahammed Khaziya, who had suffered severe head injuries. He was taken to Government Hospital in an auto. After examination, the doctors declared him dead. The complainant also stated that the bike which caused the accident was a Hero-Honda bike bearing registration No.KA-47/E-3327 and that the accident occurred at around 10.30 p.m. The complaint was registered as Crime No.101/2007 by Bhatkal Town Police Station. After investigation, a charge sheet filed for offences under Section 279, 337 and 304A of IPC r/w Section 3(a) and 181 of M.V. 4 Act. Upon appearance of the accused, his plea as not guilty was recorded and the matter was put to trial.
3. The prosecution examined twelve witnesses as PWs.1 to PW12 and marked exhibits P1 to P18. Thereafter incriminating material was explained to the accused and his statement U/sec.313 of Code of Criminal Procedure, 1973 (Cr.P.C.) was recorded. The accused denied the incriminating material and did not offer any explanation nor led any defence evidence.
4. Thereafter the trial Court framed the following points for its consideration:
1. Whether the prosecution proves beyond reasonable doubt that on 27.08.2007 at about 10.30 p.m. near TMC garden, Bhatkal, the accused drove the motorcycle bearing No.KA-47/E-3327 in a rash and negligent manner endangering human life and thereby committed the offence punishable U/s.279 of IPC?
2. Whether the prosecution proves beyond reasonable doubt that on same date, time and place, the accused in pursuance of his rash and negligent driving suddenly came to right side and dashed against the motorcycle bearing No.KA-30/H-7678 and sustained simple injury and thereby 5 committed the offences punishable U/s.337 of IPC?
3. Whether the prosecution proves beyond reasonable doubt that on same date, time and place, the accused in pursuance of his rash and negligent suddenly came to right side and dashed against the motorcycle bearing No.KA-30/H-7678 due to which Asbat succumbed to the injuries and thereby committed the offences punishable U/s.304A of IPC?
4. What order?
5. The trial Court after answering Points No.1 to 3 in the negative proceeded to pass an order of acquittal. Challenging the acquittal, the State has preferred the appeal.
6. Learned High Court Government Pleader (HCGP) appearing for the State submitted that the accident was caused by the accused when he was riding his Splendor motorcycle in high speed without possessing driving licence and talking on a mobile phone caused the accident on the road infront of the Municipal Garden at 10.30 p.m. by going on his wrong side and dashing head-on against the deceased Asbat 6 Ahammed who was coming from the opposite direction by riding his Yamaha motorcycle. The accident occurred at 10.30 p.m. and the complaint given by Muktar son of K.P.Hasan Sheikh at 11.00 p.m. i.e. immediately after the accident. The complainant is also the eyewitness to the accident and was examined as PW1. His complaint is marked as Ex.P1. PW1 has stated the manner of occurrence of the accident and implicated the accused for the offences alleged against him. He has fully supported the prosecution case. The evidence of PW1 is also corroborated by PW2 and 3-pancha witnesses and Ex.P2 is the spot panchanama. PW5 to 8 are other eyewitnesses who have corroborated the evidence of PW1. The owner of the motorcycle which was ridden by the accused at the time of the accident was examined as PW11, who has spoken about the notice given to him U/sec.133 of the M.V. Act marked as Ex.P16 and his reply to the same marked as Ex.P17 in which he admits that the accused did not have driving 7 licence. The learned HCGP further submitted that the motorcycles involved in the accident were examined by the Motor Vehicle Inspector and his report is marked as Ex.P12. The accident spot sketch is marked as Ex.P13. The accident spot sketch at Ex.P13 clearly indicates that accident spot was on the right side of the road i.e. the accused has crossed over to the wrong side of the road in high speed and had dashed against the motorcycle ridden by the deceased.
7. Learned HCGP submitted that the evidence of the complainant and other eyewitnesses, the accident spot as indicated in the spot panchanama-
Ex.P2 and the spot sketch-Ex.P13 and also lack of driving licence by the accused as evidenced by the reply to the notice U/sec.133 issued by the owner of the motorcycle marked as Ex.P17, it was beyond any doubt established that the accused was riding his bike in a rash and negligent manner in high speed 8 endangering human life, on the date and time of the accident leading to the death of Asbat Ahammed Khaziya, though he did not possess driving licence and therefore the prosecution established commission of the offences by the accused U/sec.279, 337, 304A and Section 3(a) r/w 181 of M.V. Act and therefore acquittal of accused by the trial Court was unsustainable. Assailing the judgment of the trial Court, it was submitted that the reasoning of the trial Court regarding the manner of occurrence of accident is contrary to consistent evidence of the eyewitnesses. The trial Court on the basis of evidence of PW8 has chosen to interpret the evidence on record and proceeded to hold that the accident was sudden and unavoidable collision between the bikes. It was contended that the stray evidence of PW8 could not have been chosen to ignore the consistent evidence of other eyewitnesses regarding the rash and negligent driving by the accused.
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8. It was further contended that when there was no dispute regarding the accident spot and when eyewitnesses consistently deposed to the effect that accused had went on his wrong side and collided with the motorcycle of the deceased, merely on the ground that accident spot sketch was not drawn by an engineer, it could not have been ignored and made basis for grant of benefit of doubt to the accused.
9. On the other hand, Sri Girish S.Hiremath appointed as Amicus Curiae submitted that there was serious doubt about the accident spot in this case. Though the case of prosecution was that accused was riding his motorcycle while talking on his mobile phone, the mobile phone is neither seized and produced nor any explanation offered by prosecution regarding its whereabouts. Though prosecution has led evidence to prove the accident, there is no unassailable evidence to connect the accused with the accident. As per prosecution case accident occurred 10 at 10.30 p.m. When the complainant deposed that he closes his shop at 8.00 p.m., his presence at the accident spot on date of the accident at 10.30 p.m. is not explained, casting serious doubts about he having witnessed the accident. None of the witnesses identified the accused as having caused the accident. Apart from the above, prosecution failed to examine the RTO authorities to establish the fact that accused did not possess driving licence to drive the motorcycle. Admission by PW11 cannot be said to establish this fact beyond reasonable doubt. Mere lack of driving licence cannot ipso facto lead to a conclusion that the accident was caused due to the same.
10. It was also contended by learned counsel that place of location of motorcycles after the accident do not corroborate with prosecution case. The motorcycle ridden by accused had fallen behind the accident spot, which casts doubt on the 11 prosecution case. The learned counsel further submitted that the acquittal of accused by trial Court further reinforced his innocence and there was no scope for interference with acquittal.
11. I have heard the learned counsel, perused the impugned judgment and the record.
12. In this case, PW2 and 3, the pancha witnesses who were examined in order to prove the spot panchanama-Ex.P2, have not supported the prosecution. Even PW1, complainant eyewitness, has admitted in his cross-examination that he does not know Kannada language and states that he has not written the complaint and does not know its contents. PW5 examined by prosecution as an eyewitness has stated that the accident occurred at 10.00 p.m. which contradicts with the prosecution case. PW10 who is the Investigating Officer admits in his cross- examination that he has not taken signature of panchas on the spot sketch. He also admits that 12 accused did not run away after the accident. PW6 examined by prosecution as an eyewitness admits that he is a relative of the deceased, which was not stated by him in the examination-in-chief. Therefore, there is some possibility of the prosecution attempting to botch up its case by tutoring him. In view of PW2 and 3 not supporting the prosecution case, it has to be held that the very basis of the prosecution case namely the accident spot panchanama has to held to be not proved.
13. Further, in view of the admission by PW1 in his cross-examination, even evidence of PW1 on the basis of the complaint at Ex.P1 is rendered doubtful. Thus, when the very basis of the prosecution case is taken away, acquittal of accused by the trial Court cannot, in any case be termed as perverse. Hence, there is no merit in the challenge to the impugned judgment. Accordingly, the appeal is dismissed. 13
14. For the assistance rendered by the learned amicus curiae, fee of Rs.10,000/- is fixed, which is ordered to be paid by the High Court Legal Services Authority. Registry to send copy of this judgment to the Legal Services Authority for the said purposes.
Sd/-
JUDGE CLK