Karnataka High Court
The State Of Karnataka vs R K Venkatesh on 16 January, 2014
Author: N.Ananda
Bench: N. Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16TH DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR.JUSTICE N. ANANDA
CRIMINAL APPEAL No.116 /2008
BETWEEN :
THE STATE OF KARNATAKA
BY BELTHANGADY P.S.,
D.K.DISTRICT. ... APPELLANT
(BY SRI B VISWESWARAIAH, HCGP)
AND
R K VENKATESH
S/O LATE KRISHNAPPA
AGED ABOUT 36 YEARS,
RAMAPURA MANE
BIDRALLI HOBALI
HOSAKOTE TQ
BANGALORE- 49. ... RESPONDENT
(By SMT.PARINEETHA S CHANAL )
THIS APPEAL IS FILED U/S.378(1) & (3) CR.P.C., AGAINST
THE JUDGMENT DATED 24.07.2007 PASSED BY THE
PRINCIPAL SESSIONS JUDGE, MANGALORE IN
CRL.A.NO.307/2004 ACQUITTING THE RESPONDENT/ACCUSED
FOR OFFENCES PUNISHABLE UNDER SECTIONS 279 AND
304-A IPC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The respondent was tried and convicted for offences punishable under Sections 279 and 304-A IPC, by the learned trial judge. Therefore, he was before the I-appellate court. The learned judge of the I-appellate court on reappreciation of evidence has reversed the judgment of conviction and acquitted the respondent (accused). Therefore, the State is before this court.
2. I have heard the learned Government Advocate for the State and learned counsel for accused.
3. In brief, the case of prosecution is as follows :
On 20.05.2002 at about 5.30 p.m., the accused being the driver of Lorry bearing registration No.KA-01/7914, drove the Lorry on Bantwal-Belthangady road at high speed, in a rash and negligent manner, as a result, the lorry dashed against the deceased Babu Poojary who was standing by the side of road near Madanthyar of Malady village. After causing the accident, accused was able to stop the lorry at a distance of 250 feet from the place of accident. The first 3 information of accident was lodged by PW.1-Thaniyappa Poojary (an eyewitness). The investigation officer visited the place of accident, prepared spot mahazar and rough sketch of scene of occurrence.
4. The learned trial judge relying on the eyewitness account of PW's.1 and 2, evidence of investigation officer and the contents of rough sketch and spot mahazar has held that accident took place due to rash and negligent driving of the accused.
The involvement of lorry bearing No.KA-01/7914 in the accident has not been disputed. It is also not disputed that accused was driving the lorry involved in the accident.
The learned trial judge considering the distance between place of impact and the place where lorry was stopped (250 feet) has recorded a finding that the lorry was driven at a high speed. Therefore, the accused was guilty of rash and negligent driving.
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5. The learned judge of the I-appellate court has reversed the judgment of conviction for following reasons:
I There is inconsistent evidence regarding place of accident.
II The accident took place on the edge of tar road when accused had swerved the lorry to its left side to pave way for a vehicle coming from the opposite direction. III The accused was proceeding on the proper side of the road.
IV The deceased had no reasons to stand on the edge of the tar road leaving the Kacha road (mud road). V The eyewitness account of PW's.1 and 2 does not inspire confidence.
VI The contents of postmortem examination report (marked as Ex.P2) is not consistent with the eyewitness account given by PW's.1 and 2.5
6. From the evidence of PW's.1 and 2, we find that the lorry driven by accused was proceeding on proper side of the road; the accused had swerved the lorry to it's left side to pave the way for a vehicle which was coming from the opposite direction; at the time of accident, the lorry was proceeding from Bantwal to Belthangady; the road near the place of accident turns in the direction of West to East; the accident had occurred on the northern edge of tar road.
7. The evidence of PW's.1 and 2 that deceased and PW.1 were talking beneath a tree and they were away from the tarred portion of the road cannot be accepted in view of the contents of rough sketch (marked as Ex.P9) wherein, it is shown that accident had taken place on the edge of tar road. The accused on seeing a vehicle coming from the opposite direction had swerved the lorry to it's left side to avoid collision with the vehicle coming from opposite direction. The deceased appears to have entered the tar road unmindful of vehicles plying on the road. In the circumstances, it is not possible to hold that there was culpable rashness or negligence on the part of the accused. 6 It is also not possible to rule out the error of judgment on the part of accused.
8. The learned trial judge has held that the lorry had travelled a distance of 250 feet from the place of impact, therefore, the accused was driving the lorry at a high speed. The evidence on record or contents of rough sketch do not disclose that there were any tyre marks. The rough sketch was prepared on the following day. In the circumstances, much importance cannot be given to the distance between place of impact and the place where Lorry had been stopped.
9. The postmortem examination report (marked as Ex.P2) would reveal that the deceased had suffered following injuries:
1) Left ear lobe of deceased was completely torn
2) Lacerated injury with blood clots on the right side of forehead
3) Lacerated injury with blood clots measuring 3 cm x 3 cm on the right side of hind portion of the head 7 The postmortem examination report was admitted in evidence with the consent of learned counsel for accused.
Considering the nature of injuries, it was incumbent for the prosecution to examine the Doctor who had conducted the postmortem examination to prove that deceased had suffered aforestated injuries when he was hit by the lorry.
The evidence on record does not disclose that the lorry dashed against the deceased from his front side or from his back side. The evidence on record does not disclose that there was any sharp object on the lorry which had cut the left ear lobe of the deceased.
10. In a decision reported in AIR 1975 SC 1324 (in the case of Mrs.Shakila Khader etc., -vs- Nausher Gama and another) the Supreme Court has held:
"The main criterion for deciding whether the driving which led to the accident was rash and negligent is not only the speed at which the car was running but the width of the road, the density of the traffic"8
11. In the case on hand, the accident took place on a State Highway. There was much traffic on the road; the driver (accused) had swerved the lorry to it's left side to avoid collision with a vehicle coming from the opposite direction; the accident had taken place on the edge of tar road; the evidence of PW's.1 and 2 that deceased was standing away from the edge of tar road cannot be accepted. The deceased had no reason to stand on the tar portion. It appears he deceased had suddenly darted on the road and this could not have been foreseen by the accused. The error of judgment on the part of accused cannot be completely ruled out.
12. The evidence on record is not sufficient to hold that there was culpable rashness or negligence on the part of accused. Therefore, the learned judge of the I-appellate court was justified in reversing the judgment of conviction.
13. There are no reasons to interfere with the impugned judgment. The appeal is dismissed.
Sd/-
Np/- JUDGE