Karnataka High Court
The State By The Royalapad Police vs Suresh @ Surya on 17 October, 2012
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF OCTOBER 2012
BEFORE
THE HON'BLE MR.JUSTICE A.S.PACHHAPURE
CRIMINAL APPEAL NO.641/2008
BETWEEN:
The State by the Royalapad police,
Srinivasapur,
Kolar district. ...APPELLANT
(By Sri.P.Karunakar, HCGP)
AND:
Suresh @ Surya,
S/o Srinivas @ Seenappa,
Aged 24 years,
R/o Pulagukote village,
Srinivaspur taluk,
Kolar district. ...RESPONDENT
(By Sri.C.S.Dwarakanath & Assts., Adv.)
This Crl.A. is filed under Section 378(1) & (3)
of Cr.P.C. praying to set aside the order dated
11.07.07 passed by the Prl.S.J., Kolar in
Crl.A.No.125/06 and confirming the order of conviction
passed in C.C.No.176/04 dated 29.11.2006 on the file of
the Civil Judge (Jr.Dn) & JMFC, Srinivaspur, Kolar
district.
This Crl.A. coming on for hearing this day, the
Court delivered the following:-
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JUDGMENT
The State has filed this appeal challenging the acquittal of the respondent for the charge under Sections 279 and 304-A of IPC in Crl.A.No.125/2006 filed against the judgment and order of conviction by the learned Magistrate, Srinivasapura, Kolar district.
2. The facts reveal that, the respondent was the driver of the auto rickshaw bearing registration No.CAA-6725. One Shankarappa with his wife PW-4 Kamalamma and two others persons were travelling in the said autorickshaw on the road leading from Pulgurkote to Lakshmipura villate on 22.08.2004 at about 5.30 p.m. It is alleged that the auto rickshaw was driven in a rash and negligent manner so as to endanger the human life and thereby, the front wheel of the auto rickshaw broke down and auto rickshaw got topsy turvy. As a result, Shankarappa sustained severe injuries. He was shifted to SNR hospital and he succumbed to the injuries at about 11 p.m. On a complaint by PW-4 his wife, a crime came to be registered and after completion of the investigation, a charge sheet has been filed.
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3. The prosecution examined 18 witnesses and got marked 15 documents. Statements of the accused were recorded under Section 313 of Cr.P.C. No defence evidence was led. The trial court convicted the respondent for the charge under Sections 279 and 304-A of IPC. Aggrieved by the conviction and sentence, respondent preferred an appeal in Crl.A.No.125/2006. The said appeal was allowed on merits and the conviction was set aside. Aggrieved by the acquittal, the present appeal is filed.
4. I have heard learned HCGP for the appellant- State. Counsel for the respondent is absent.
5. All other eyewitnesses except PW-4 Kamalamma who is the wife of the deceased Shankarappa are hostile. So, it is only the evidence of PW-4 and she states in her evidence that the vehicle was driven in a rash and negligent manner and while negotiating a curve, the front wheel of the auto rickshaw was broken down and the vehicle fell topsy turvy. She also states about the injuries sustained by her husband and his death due to the injuries while in the hospital. The scrutiny of her evidence reveals that for the first 4 time, she improves her version and states that despite warning given to the driver-the respondent to slow down the vehicle, he drove it in a rash and negligent manner. This improvement in the prosecution case was not accepted by the lower appellate court.
6. PW-16 is the Motor vehicle inspector and he examined the vehicle on 31.08.2004 i.e., after lapse of about a week and he states in the evidence that the accident was not due to any mechanical defect. As seen from the evidence that has been led by the prosecution, the curve was ahead of the spot of the accident. Thereby, an inference could be drawn that the accident was not while negotiating a curve, but it is before entering into the curve. Admittedly, the road was not in good condition. There were ditches on the road and the auto rickshaw was on the left side of the road at the time of the accident. The front wheel of the auto rickshaw get separated. The separation of the front wheel may be for many different reasons, it may be due to some mechanical defect and it may be also for rash and negligent driving of the vehicle on a bad road. So, there are two views possible, in the context of the defence raised by the respondent that the accident was 5 due to mechanical defect and detachment of the front wheel of the vehicle, a doubt arises as to whether the wheel was broken down due to the mechanical defect or due to rash and negligent driving. When there are two possibilities, the one which is beneficial to the accused will have to be accepted by the court. So, if this aspect is taken into consideration, I do not find any error or illegality in the judgment of the lower appellate court in setting aside the conviction and granting an order of acquittal. In that view of the matter, I do not find any ground warranting interference in the order of acquittal.
7. In the result, appeal fails and is dismissed.
Sd/-
JUDGE Srl.