Karnataka High Court
State By Bidadi Police Station, ... vs S.B. Marigowda on 26 November, 1998
Equivalent citations: 1999CRILJ2171, ILR1999KAR1498, 2000(1)KARLJ163
Author: B.K. Sangalad
Bench: B.K. Sangalad
ORDER
1. The State has preferred this appeal against the acquittal dated 26-5-1993 passed by the Civil Judge and JMFC., Ramanagaram, acquitting the respondent for the offence punishable under Sections 279 and 304-A of the Indian Penal Code, CPI-PW. 3, Ramanagaram Circle, has filed the charge-sheet against this respondent (who shall be referred to hereinafter as 'accused'), for offences punishable under Sections 279 and 304-A of the Indian Penal Code.
2. Deceased-Madaiah is the brother of CW-2 by name Shivaji. On 5-4-1992 CW-2 along with his brother had come to Mudavadi cross in order to go over to Bidadi. It was at about 7.30 a.m. P.W. 1-Rajanna and P.W. 2-Rajgopal were also with them. At that time, the accused was driving his Matador bearing No. KA 11 651 and came from Ramanagaram side in high speed driven rashly and negligently so as to endanger human life and at Mudavadi cross the driver suddenly overtook the lorry and came to the extreme right side of the road and dashed against Madaiah who was waiting for the bus. Madaiah fell down and sustained bleeding injuries. The accused stopped his vehicle at about a distance of 60 feet from the accident spot. P.Ws. 1 and 2 immediately rushed to the spot and gave water to the injured. The injured died at the spot. At about 8.15 a.m. P.W. 1 went to the Bidadi Police Station and gave a complaint which was registered in Crime No. 71 of 1992. The investigation of the spot mahazar was prepared and the vehicle involved in the accident was seized. The inquest on the dead body was also prepared and then it was sent for the post-mortem examination. The seized vehicle was subjected to the inspection by the Motor Vehicle Inspector. The CPI took up further investigation and after the receipt of the PM report and IMV report submitted the charge-sheet after the completion of the investigation.
3. For the prosecution, P.Ws. 1 to 4 are examined and Exs. P-1 to P-5 are marked. For defence no witnesses were examined much less any document is marked.
4. The learned Government Pleader Mr. Parvin submitted that the observation of the learned Magistrate that the evidence of P.Ws. 1 and 2 cannot be relied upon is erroneous. According to him, there is enough material to show that they witnessed the incident which has taken place on the wrong side of the road, that too, while overtaking the lorry. It is also submitted, that the accident took place at 7.30 a.m. and the complaint was filed at 8.15 a.m. at Bidadi Police Station without any loss of time. The prompt complaint has not been considered properly. On the other hand, Mr. Rajagopal, learned Counsel for the respondent streneously submitted that, non-examination of the Motor Vehicle Inspector is fatal. P.Ws. 1 and 2 who claimed to be the eye-witnesses cannot be treated as eye-witnesses and relied upon the judgments in the case of Veerabhadrappa v State of Karnataka, and also relied upon a judgment in Criminal Revision Petition No. 82 of 1987, decided on 26-8-1988. Further relied upon a decision in the case of State of Karnataka v Saibanna.
5. It is in the evidence of P.W. 1 that the deceased-Madaiah was coming with Shivaji and Rajagopal a little away behind him by the side of the road. He observed a lorry going towards Bangalore side. A tempo was following the said lorry from its behind. The driver of the tempo overtook the lorry by coming on his right side. In the said attempt the driver of the tempo hit against the deceased-Madaiah.
6. It is pertinent to note that the alleged incident took place at 7.30 a.m. The complaint was filed at 8.15 a.m. In a span of 45 minutes, the complaint has been filed. Hence in my opinion within such small span of time, it is not possible to cook up a false case against the accused. In the cross-examination of P.W. 1, it is elicited that he came to know of the accident only when he heard the sound and shouts raised by the deceased and others. Relying upon this Mr. Rajagopal, learned Counsel for the respondent submitted that P.W. 1 could not have witnessed the accident. Literal translation would be something else from the actuality i.e., seeing the accident. The accident takes place in a split of seconds. Sometimes after hearing the sound only, the person will turn down and would see about the happening. This does not mean that he is not a eye-witness out and out. This witness might not have been able to give the whole graphic picture of the accident. Nevertheless he speaks of his presence and would also speak of the manner of accident and place of accident. He has immediately filed the complaint as per Ex. P-1. So it is elicited in the cross-examination of P.W. 2, that when he heard the sound, he turned back and saw the accident. This does not mean by the time he turned back, he could not see anything. It is possible to see the dashing of the Matador van against the person. Sometimes in many cases, there is dragging of the body also. P.W. 2 in the examination-in-chief itself says that himself and deceased Madaiah and Shivaji were going towards Bidadi from their village. This is not challenged in the cross-examination nor any material is brought on record to show that this witness was not at all going along with the deceased and another person by name Shivaji. When their presence is believed, the version of P.Ws. 1 and 2 that they could see this accident could never be discarded totally as it is stated that the accident took place in a split of seconds.
The whole graphic picture might not be available. But the other circumstances and facts remain on record.
7. Now it is to be seen what is the circumstance against this accused. It is not denied in the cross-examination that he was overtaking the lorry, it is not denied that he was not the driver of the Matador van. When it is on the record that he was overtaking the lorry, it goes without saying that he must have driven the vehicle in high speed otherwise it is not able to overtake another vehicle. While doing so, he has come to the extreme wrong side of the road. Both the vehicles were moving towards Bangalore and the deceased and this witness were also going towards Bangalore on the right side of the road. To hit the deceased the Matador had come to the wrong side of the road. This can never be said that there is error of judgment. This observation by the Magistrate was fatal to the prosecution.
8. Mr. Rajagopal, learned Counsel for the respondent relied upon a decision in the case of Saibanna, supra, wherein it is stated as follows.-
"Penal Code, 1860 (Central Act 45 of 1860), Section 304-A -- Rash and negligent driving -- Factors for consideration; brake marks, side of the road where accident occurred and manner in which deceased hit.
Held: The three important circumstances viz., (i) the brake marks to a distance of about 105 feet from the spot probabalising the evidence of the eye-witnesses that the vehicle was driven at high speed; (ii) that the accident on the offside of the road with reference to the direction in which the car was proceeding then; (iii) that the vehicle went from behind and knocked down the deceased; show that the accused was rash and negligent in driving the vehicle at the time of the accident and it is due to that he caused the death of the deceased.
Having regard to the circumstances of the case, upon conviction sentence of 3 months R.I. and fine of Rs. 500-00 awarded".
9.1 must say that the learned Counsel for the respondent is very fair enough although this decision is against his interest. It is also in the evidence that after dashing against the deceased-Madaiah, the van moved to a considerable distance before it came to halt. This is also another added circumstance against the accused. In the case on hand, the testimony of P.Ws. 1 and 2 is available. The fact that the driver was overtaking the lorry is not denied. The fact that the alleged accident took place on the wrong side of the road is very well established. Hence I fail to understand as to how the lower Court came to the conclusion that the prosecution was not able to establish the case against the accused.
10. Mr. Rajagopal, learned Counsel for the respondent also relied upon the decision in the case of Veerabhadrappa, supra, and also order dated 26th August, 1988 passed in Criminal Revision Petition No. 82 of 1987. Especially relying upon the order in Criminal Revision Petition No. 82 of 1987, Mr. Rajagopal submitted that even in the decided cases, the driver had gone to the wrong side. The facts of the each case varies. But in the case on hand it has to be seen that the deceased was pedestrian. He was walking on the right side of the road that too in mud portion. This accused-driver was overtaking the vehicle. After dashing he has travelled to a considerable distance. In view of these facts, the order in the above said Criminal Revision Petition cannot come to the rescue of the respondent. Mr. Rajagopal relying upon the decision in the case of Veerabhadrappa, as stated supra, submitted that if the Motor Vehicle Inspector is not examined, the conviction and sentence passed by the Court are liable to be set aside. In the same case it is observed as follows.-
"Indian Penal Code, 1860, Sections 279 and 338 -- Section 89-B of Motor Vehicles Act, 1939 -- Accident -- Whether as a result of rash and negligent driving -- Conviction based on testimony of witnesses not present during the accident -- Eye-witnesses not deposing about rashness or negligence -- Non-examination of Motor Vehicles Inspector -- Conviction and sentence passed by Courts below setaside".
11. But in the case on hand, there are eye-witnesses who witnessed the accident and there is quick filing of the complaint. Nothing is elicited in the cross-examination to disbelieve their version. When such is the case, without looking into that, conviction should be set aside. Of course in the case on hand, the appeal is filed against the order of acquittal. Non-examination of the Motor Vehicle Inspector is one thing and not disputing of the Vehicle Inspector's report is another thing. Unless there is something on the record that in spite of the protest by the defence, if the Inspector's report is marked and then if it is relied upon, it would tell a different story.
12. Hence I am of the opinion the contention that non-examination of the Motor Vehicle Inspector is fatal, cannot be accepted.
13. At the cost of repetition, it has to be stated that the presence of P.Ws. 1 and 2 was probable and they have spoken of the place and time of accident. P.W. 1 was quick in filing the complaint without loss of time. Hence in my opinion the prosecution has made out a case against the accused person.
14. Mr. Rajagopal further submitted that the accused should be released by giving the benefit of Probation of Offenders Act. In my opinion this cannot be accepted. In the light of the observations made above, the following order is passed:
In the result, the appeal is allowed. The judgment of acquittal dated 26-5-1993 passed in C.C. No. 631/92 by the learned Civil Judge, JMFC, Ramanagaram, is set aside. The respondent is convicted for the offence punishable under Sections 279 and 304-A of the Indian Penal Code and he is sentenced to undergo 3 months' S.I. and 6 months S.I. respectively and further the respondent is sentenced to pay a fine of Rs. 1,000/- (Rs. one thousand only) under Section 304-A of the Indian Penal Code in default to serve another two months S.I. Both the sentences shall run concurrently. The learned JMFC, Ramanagaram, shall secure the accused to serve the sentences. The sentence already undergone as under-trial prisoner shall be given set off.