Karnataka High Court
State Of Karnataka vs Bangarashetty on 11 June, 2018
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
1
Crl.A. No.53/2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JUNE 2018
BEFORE:
THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL No.53/2011
BETWEEN:
STATE OF KARNATAKA,
THROUGH CHAMARAJANAGAR,
TOWN POLICE. ... APPELLANT
(BY SRI. CHETAN DESAI, HCGP)
AND
BANGARASHETTY,
S/O. DHOOMA SETTY,
AGED ABOUT 34 YEARS,
R/O. HARADANAHALLI-
HANDIGERE VILLAGE,
CHAMARAJANAGAR TALUK. ... RESPONDENT
(BY SRI. M. VINOD KUMAR &
SRI. K. BALA SUBRAMANYAM, ADVS.)
***
THIS CRL.A IS FILED U/S. 378(1) & (3) CR.P.C PRAYING
TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE
JUDGEMENT DT: 17.3.10 PASSED BY THE DIST., AND S.J.,
CHAMARAJANAGAR IN CRL.A.NO.2/08 - ACQUITTING THE
RESPONDENT FOR THE OFFENCE P/U/S 279, 338 AND 304A
OF IPC AND CONFIRM THE ORDER DT:29.12.07 PASSED BY
THE PRL. CIVIL JUDGE (JR.DN.) AND JMFC,
CHAMARAJANAGAR IN C.C. NO.359/04.
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Crl.A. No.53/2011
THIS CRIMINAL APPEAL COMING FOR HEARING ON
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal filed by the State is directed against the Judgment and Order dated 17.03.2010, passed in Crl.A. No.2/2008 on the file of the Court of the District and Sessions Judge at Chamarajanagar, wherein by the said Judgment and Order, the learned Sessions Judge set aside the Judgment and Order of conviction and sentence passed by the learned Principal Civil Judge [Jr. Dn.] and JMFC., Chamarajanagar, in C.C. No.369/2004 and acquitted the accused/respondent of the offences charged under Sections 279, 338 and 304-A of IPC.
2. I have heard the learned High Court Government Pleader appearing for the appellant/State.
3. The case of the prosecution is that;
On 17.01.2004, at 7.00 p.m., in front of Siddeshwara Medical Stores, on Ramasamudra double road, the accused being the driver of the tractor bearing reg. No.KA- 3 Crl.A. No.53/2011 10-T/7000 and trailer bearing reg. No.KA-10-T/1636, drove the same in a rash and negligent manner and dashed against the Hero Honda motorcycle bearing reg. No.KA-10-H/3998. On account of which, the rider of the said motorcycle viz., one Venkataramanaika fell down and succumbed to the injury. It is the further case of the prosecution that the said tractor and trailer driven by the accused also hit another vehicle-TVS victor motorcycle bearing reg. No.KA-10-J/3393 and caused grievous injuries to the rider of the said motorcycle viz. K.V. Vijayakumar [P.W.2] and thereby the accused committed the offences punishable under Sections 279, 338 and 304-A of IPC.
On the complaint at Ex.P1 lodged by P.W.1 i.e., the father of the deceased, Chamarajanagar Town Police registered a case in Crime No.8/2004 and after completion of the investigation, charge-sheet was filed for the aforesaid offences. The accused pleaded not guilty to the accusation made against him.
4Crl.A. No.53/2011
The prosecution in all examined P.Ws.1 to 12 and got marked Exs.P1 to 12. The accused denied all the incriminating materials against him while he was examined under Section 313 Cr.P.C. However, he has not chosen to lead any evidence on his behalf.
The trial Court considering the evidence and materials on record, convicted the accused by Judgment and Order dated 29.12.2007 for the offence punishable under Sections 279, 338 and 304-A of IPC. The accused was sentenced to undergo simple imprisonment for a period of 3 months for the offence punishable under Section 279 of IPC and simple imprisonment for a period of 3 months for the offence punishable under Section 338 of IPC. Further, the accused was sentenced to undergo simple imprisonment for a period of one year for the offence punishable under Section 304-A of IPC.
Challenging the said Judgment and Order of conviction passed by the trial Court, the accused preferred Crl.A. No.2/2008 before the learned District and Sessions 5 Crl.A. No.53/2011 Judge, Chamarajanagar. The learned Sessions Judge by Judgment and Order dated 17.03.2010 was pleased to acquit the accused. Against the said Judgment and Order of acquittal, the present appeal has been preferred by the State.
4. It is the contention of the learned High Court Government Pleader that the name of the accused has been mentioned in the First Information Report. The evidence of P.Ws.2, 3 and 6 are material since they are the eye-witnesses to the incident and P.W.2 is an injured as well. There is no dispute with regard to the identity of the accused. He further submits that P.W.9 being the owner of the tractor and trailer has also supported the case of the prosecution confirming that the accused was working as a driver and he was driving the said tractor. It is the contention of the learned High Court Government Pleader that P.Ws.2, 3 and 6 have categorically stated regarding the accident in question and involvement of the tractor and trailer, which was driven by the accused. He further submits that the trial Court after considering all these 6 Crl.A. No.53/2011 materials, by a reasoned Judgment and Order has rightly convicted the accused and the reasons assigned by the first appellate Court acquitting the accused is not in accordance with law and accordingly, he prays for reversal of the said Judgment and Order passed by the learned Sessions Judge.
5. I have gone through the entire evidence and the materials on record and also the Judgment and Order passed by the trial Court as well as the first appellate Court. The following points arise for my consideration:
1) Whether the prosecution proves that on 17.06.2004 at about 7.00 p.m. in the evening, the accused drove the tractor bearing reg. No.KA-10-T/7000 and trailer bearing reg. No.KA-10-T/1636 in a rash and negligent manner so as to endanger human life and dashed the said vehicle against the vehicle driven by the deceased as well as P.W.2. On account of which, the deceased viz., Venkataramanaika succumbed to the grievous injuries sustained by him and further P.W.2 sustained grievous injuries?
7 Crl.A. No.53/2011 2) Whether the Judgment and Order dated 17.03.2010 passed in Crl.A. No.2/2008 by the learned District and Sessions Judge, Chamarajanagar is in accordance with law? 3) Whether the Judgment and Order
passed by the learned Magistrate in C.C. No.359/2004 needs to be confirmed?
4) What Order?
6. Having gone through the entire evidence and materials on record and having re-appreciated the same, I answer the above points in the following:
7. It is the case of the prosecution that;
On 17.01.2004 at 7.00 p.m., the accused being the driver of the tractor bearing reg. No.KA-10-T/7000 and trailer bearing reg. No.KA-10-T/1636 drove the same in Chamarajanagar double Road in a rash and negligent manner, in such a way to endager human life and dashed against the Hero Honda motorcycle, which was being 8 Crl.A. No.53/2011 ridden by the deceased and also dashed against a TVS Victor motorcycle, which was being ridden by P.W.2. On account of the said accident, the rider of the motorcycle bearing reg. No.KA-10-H/3998 viz., Venkataramanaika sustained injuries and succumbed to the injuries and further P.W.2 also sustained grievous injuries. The perusal of Ex.P1-complaint shows that said complaint is lodged by P.W.1, who is none other than the father of the deceased. However, said P.W.1 is not an eye-witness to the incident. Ex.P1 discloses that P.W.1 came to know about the incident which was witnessed by one Govindanaika, s/o. Ramanaika and another Kellamballi Somanaika. F.I.R. is lodged against the unknown persons. P.W.1 is also a witness to Ex.P2-spot mahazar. In the cross-examination it has been elicited that he has not given the tractor and trailer number which is mentioned in the F.I.R. and not stated that the accident has been caused by a particular person.
8. P.W.2 is said to be an eye-witness and an injured. According to him, he was riding a scooter. He has deposed 9 Crl.A. No.53/2011 that the tractor in question dashed the vehicle ridden by the deceased from behind and thereafter it also dashed against his scooter and he fell down and sustained injury. However, he denies that he has given the name of the accused. He was treated as hostile. From his evidence it cannot be gathered that the accused was driving the vehicle in question.
9. P.W.3 is said to be another witness to the incident. However, he has not specifically stated the manner in which the accident occurred and he has also not stated as on whose fault the accident occurred. It has been elicited in his cross-examination that in few cases, he is a witness and he is also accused in some cases. P.W.4 is an attester to Ex.P2-spot mahazar. P.W.5 is another panch-witness to the spot mahazar, which is marked as Ex.P2.
10. P.W.6 is said to be an eye-witness to the incident. He has stated that the deceased was riding his motorcycle in front of one Siddeshwara Medical Stores at 10 Crl.A. No.53/2011 about 7.00 p.m. and at that time, the tractor in question came in a high speed and dashed the motorcycle of the deceased from behind and also dashed against another vehicle and after causing the accident, the driver of the tractor stopped the tractor and ran away from the spot. It is elicited from the cross-examination that during the evening, normally there will be people near the spot where the accident took place.
11. P.W.7 is the owner of TVS Victor motorcycle. He has deposed that he got released the said vehicle and in this regard a mahazar was drawn as per Ex.P6. P.W.8 is the witness to the mahazar at Ex.P4, under which the tractor and trailer were released.
12. P.W.9 is the owner of the tractor and trailer, who has deposed that as per the order passed by the Court, he got the said vehicle released. He has further deposed that the accused was a driver of the said vehicle. P.W.10 is the mother of the deceased. Her evidence does not reflect regarding the accident in question nor any rash and 11 Crl.A. No.53/2011 negligent driving by the accused, even if the identity of the accused is not disputed.
13. P.W.11 is the C.P.I., who recorded the statement of P.W.1 and registered the case and submitted FIR-Ex.P11 to the Court. He has conducted the investigation and filed the charge-sheet.
14. For considering the involvement of the accused and his rash and negligent act, the evidence of P.Ws.2, 3 and 6 are relevant. As far as the evidence of P.W.2 is concerned, he has been treated as hostile with regard to the identity of the accused. He has denied having given another statement mentioning the name of the accused. According to him, the tractor in question came from behind and dashed against the motorcycle, which was ridden by the deceased and the tractor ran over the head of the deceased. Thereafter, the said tractor has also dashed against his vehicle.
15. The evidence of P.W.3 does not indicate as to the rash and negligent driving by the accused. He has only 12 Crl.A. No.53/2011 stated that there was an accident and at that time, he was near Siddeshwara Medical Stores and in the said accident the rider of the motorcycle died. He has only deposed that the accident was on account of the driver of the tractor.
16. The evidence of P.W.6 discloses that the tractor came in a high speed and dashed against the motorcycle from behind and also dashed against another vehicle. He did not identify the accused as he was not present in the Court.
17. The perusal of the evidence on record reveals that the said evidence does not conclusively hold that the accused was driving the tractor in question at the time of the accident. Further do not conclusively establish the rash and negligent driving by the accused. According to the witnesses, the tractor in question came from behind in high speed and dashed against the motorcycle and also the vehicle of P.W.2. But, on perusal of the motor vehicle report-Ex.P8, as observed by the learned Sessions Judge, there are no severe damages caused to the rear end of the 13 Crl.A. No.53/2011 motorcycle of the deceased. The witnesses have further deposed that after dashing against the motorcycle, the tractor ran over the head of the deceased. If it so, there would have been more severe injuries caused to the head of the deceased than the injuries noted in the post-mortem report-Ex.P10.
18. On an overall appreciation of the entire evidence and the materials on record, it cannot be said that the prosecution is able to establish the guilt of the accused beyond all reasonable doubt. The appreciation of the evidence by the learned Magistrate in the light of the above discussion of the evidence, is not proper. The learned Sessions Judge having re-appreciated the evidence on record, by giving reasons, has come to the conclusion that two views are possible and accordingly, the view which was in favour of the accused has been taken into account and acquitted the accused by giving the benefit of doubt. I see no reason or legal infirmity to reverse the said Judgment and Order of acquittal passed by the learned Sessions Judge. Accordingly, the following:
14Crl.A. No.53/2011
ORDER The appeal is dismissed.
Sd/-
JUDGE Ksm*