Karnataka High Court
The State Of Karnataka vs Yamanappa S/O Siddappa Karigar on 30 November, 2018
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF NOVEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.3528 OF 2012
BETWEEN:-
THE STATE OF KARNATAKA
THROUGH HUTTI POLICE
REPRESENTED BY ITS
ADDL. STATE PUBLIC PROSECUTOR
... APPELLANT
(BY SRI MALLIKARJUN SAHUKAR, HCGP)
AND:-
YAMANAPPA S/O SIDDAPPA KARIGAR
AGE: 29 YEARS, OCC: JEEP DRIVER
R/O HEBBAL, TQ. SHORAPUR
DIST. YADGIR
... RESPONDENT
(BY SRI R.D. SAGAR, ADVOCATE)
THIS CRL.A IS FILED UNDER SECTION 378(1) AND (3)
OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL AGAINST
THE JUDGMENT AND ORDER OF ACQUITTAL DATED 01.12.2011
PASSED BY THE JMFC COURT, LINGASUGUR, IN
C.C.NO.411/2005, ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCES PUNISHALBE UNDER SECTIONS 279 AND
304-A OF IPC AND ALSO SECTIONS 187 AND 192(A) OF
INDIAN MOTOR VEHICLES ACT AND SET ASIDE THE
AFORESAID JUDGMENT AND ORDER OF ACQUITTAL DATED
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01.12.2011 PASSED BY THE COURT OF JMFC AT LINGASUGUR,
IN C.C. NO.411/2005, ACQUITTING THE RESPONDENT/
ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
279 AND 304-A OF IPC AND ALSO SECTIONS 187 AND 192(A)
OF INDIAN MOTOR VEHICLES AT AND ETC.
THIS CRL.A COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The State is in appeal against the judgment of acquittal rendered by the JMFC Court, Lingasugur in C.C.No.411/2005 dated 02.12.2011, whereby the respondent (hereinafter referred to as "accused") is acquitted of the charges under Sections 279 and 304(A) of IPC and Sections 187 and 192(A) of the Motor Vehicles Act.
2. The case of the prosecution is that on 02.05.2005 at about 6.30 p.m., the respondent herein being the driver of the jeep bearing No.KA-24/M-530 drove the said vehicle in a rash and negligent manner and having lost control over the vehicle, the said jeep overturned at the curve road near Patil Granite Company at Gurgunta - Paidoddi road. As a result, Devendramma, the wife of the complainant sustained grievous injuries and died on the spot and other inmates of the jeep sustained simple injuries.
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3. In order to bring home the guilt of the accused, the prosecution examined in all eight witnesses namely, PWs.1 to 8 and got marked Exs.P1 to P8 and MOs.1 to 3. The accused denied all the incriminating circumstances during his examination under Section 313 of Cr.P.C. and did not chose to enter into defence.
4. On considering the above evidence, by the impugned judgment, the learned Magistrate has acquitted the accused of all the charges.
5. Heard the learned High Court Government Pleader and the learned counsel for the respondent/accused.
6. Learned High Court Government Pleader would submit that the Trial Court has committed serious error in acquitting the accused. The evidence let in by the prosecution clinchingly establishes that at the relevant time, the accused was driving the involved jeep in a rash and negligent manner. The material witnesses examined by the prosecution namely, PWs.1, 5 and 7, who were the inmates of the said jeep have consistently stated that at the time of the accident, the accused 4 was driving the vehicle in a high sped and having lost control over the vehicle, the vehicle turned turtle and as a result, the wife of the complainant died on the spot and other inmates suffered injuries. However, the learned Magistrate has acquitted the accused solely on the ground that the test identification parade was not conducted by the Investigating Agency. He contends that the reasoning assigned by the trial Judge is perverse and contrary to the evidence on record and therefore, the impugned judgment requires to be interfered with by this Court in exercise of the jurisdiction under Section 378 of Cr.P.C.
7. Learned counsel for the respondent however has argued in support of the impugned judgment. He contends that the prosecution has failed to establish the identity of the driver of the vehicle and therefore, the trial Court was justified in acquitting the accused. In support of his argument, the learned counsel has placed reliance on the decision of the Hon'ble Supreme Court in Kanan and Ors. Vs. State of Kerala reported in AIR 1979 SC 1127.
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8. Considered the submissions and examined the records.
9. PW.1 is the complainant and the husband of the deceased. He has stated in his evidence that on the date of the incident, he along with his wife, and two children were proceeding in the private jeep driven by the accused. The accused was driving the said jeep in high speed. As a result, the jeep turtled and his wife died on the spot. He has asserted in his evidence that the accident had taken place on account of the fault of the accused. Nothing worthwhile has been elicited in the cross-examination of this witness to disbelieve his evidence. The identity of the accused is not challenged in the cross-examination. The suggestion made to the witness that the accused was not the driver of the said jeep at the time of the accident has been denied. It is also elicited that, except the member of his family, no other persons were travelling in the said jeep. It is also elicited that the said jeep capsized due to sudden applying of brake.
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10. PWs.2 and 3 are the panch witness to the inquest panchanama and spot panchanama- Exs.P2 and P3. Both these witnesses have supported the case of the prosecution.
11. PW.4 is the owner of the jeep. According to him, he knows the accused and he came to know the accident through the accused. In the cross-examination, it is suggested that he has not witnessed the incident. There is no suggestion to this witness that the accused was not driving the vehicle at the time of accident or that the said vehicle was driven by any other person at the time of the accident.
12. PW.5 was the minor child of the deceased and the complainant. This witness has also deposed in conformity with the statement of PW.1 stating that on the date of the accident, she, her deceased mother, her sister and the complainant had gone to Nandihal village for harvesting. On the next day morning they boarded the jeep and were proceeding to their village. The jeep turtled towards left side of the road at a distance of 2 Kms. from Paidoddi village, as a result, her mother died on the spot and two goats also died on the spot. She further deposed that the accused was driving the said jeep 7 in high speed. Her testimony is also not shaken in the cross- examination and the identification made by her is not disputed in the cross-examination.
13. PW.6 was the C.P.I., Lingasugur, who conducted the investigation and collected the M.V.I report - Ex.P6. The report is marked through this witness.
14. PW.7 is the daughter of the deceased. She was also an inmate of the said jeep. This witness has also stated that the accused drove the jeep in high sped and lost control over the jeep, as a result, it turned turtle 1 Km away from their village. In the said accident, her mother died on the spot and two goats also died. This witness has also asserted that the accident occurred due to the fault of the accused, as he drove the vehicle in high speed at the curve.
15. PW.8 is the P.S.I., who registered the F.I.R.
16. The learned Magistrate has recorded a factual finding that the accident occurred on account of the rash and negligent driving of the involved jeep. However, the accused has been acquitted solely on the ground that the test 8 identification parade was not conducted. The relevant observation made by the Trial Court in this regard finds place in para 19 of the impugned judgment, wherein it is noted that the counsel for the accused has seriously disputed the identity of the accused and his rash and negligent act in causing the accident. The learned trial Judge has proceeded to observe that the police have not at all conducted any test identification parade to find out whether the accused was the driver of the jeep. At the time of lodging the complaint, the name of the driver of the jeep was not mentioned and hence, the Trial Court was of the view that the identity of the driver has not been established and consequently the Trial Court has acquitted the accused.
17. The findings of the Trial Court and the reasoning assigned in support thereof in my view are wholly perverse and cannot be accepted. The Trial Court has failed to note that the witnesses examined by the prosecution namely, PWs.1, 5 and 7 were the eyewitnesses to the incident. They were the inmates of the said vehicle. They have consistently stated before the Court that the accused was driving the involved jeep at the 9 time of the accident. They have identified the accused in the witness box. The identification made by these witnesses during their examination before the Court has not been shaken in the cross-examination. Even the owner of the said vehicle has nowhere stated in his evidence that the accused before the Court was not the driver of the said jeep and that the said jeep was driven by any person other than the accused. On the other hand, in his evidence, he has stated that the accused himself informed him about the accident, which implies that the factum of the accident was witnessed by the accused and the same was informed to PW.4 by the accused as he was the owner of the said jeep. If for any reason the accused was not the driver of the said vehicle, there was no reason for him to inform the accident to PW.4 and PW.4 would have been the first person to state before the Court that accused was not engaged by him to drive the involved jeep on the date of the accident. From the tenor of his evidence, it can be safely concluded that accused was driving the involved jeep at the time of the accident.
18. It is trite law that identification parade does not constitute substantive evidence. As explained by the Hon'ble 10 Supreme Court in the case of Daya Singh v. State of Haryana (2001 SCC (Cri) 553), "...... the purpose of test identification is to have corroboration to the evidence of the eyewitnesses in the form of earlier identification and that substantive evidence of a witness is the evidence in the court. If that evidence is found to be reliable then absence of corroboration by test identification would not be in any way material." In the case of State of Maharashtra v. Suresh reported in (2000) 1 SCC 471, it was observed thus:-
"We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the with the said occurrence."
19. In the instant case all the witnesses have clearly identified the accused person in the open Court. The facts brought out in their evidence leaves no manner of doubt that the accused was on the wheels at the time of the accident. The 11 evidence of PWs.1, 5 and 7 indicates that the said jeep was engaged by them for the travel of the entire family and they had traveled quite a distance in the said vehicle. The fact that even their goats were taken in the said vehicle suggest that there was sufficient time for all these witnesses to see and identify the accused. Even otherwise, no circumstances are bought out in the cross-examination of any of these witnesses to show that the identification made by them in the Court suffers from any defects. Therefore, having regard to their evidence, I have no hesitation whatsoever to hold that the accused has been duly identified by all the witnesses. The identification made by these witnesses clearly establish that at the time of the accident, the accused was driving the involved vehicle.
20. In the light of the above finding, it follows that the Trial Court has committed patent error and manifest perversity in acquitting the accused for want of test identification parade. The Trial Court has overlooked the evidence of the eyewitnesses with regard to the identification of the accused. No reasons are assigned by the Trial Court as to why the 12 identification made by these witnesses could not be believed. Therefore, the finding recorded by the Trial Court being opposed to the evidence on record, the said finding and the consequent acquittal of the accused cannot be sustained.
21. The evidence of PWs.1, 5 and 7 clearly establish that alleged accident was caused on account of rash and negligent driving of the jeep by the accused. All these witnesses have consistently stated that the vehicle got turtled on account of the driving of the said vehicle in high speed. The spot sketch Ex.P7 indicates that the accident occurred at the curve. The evidence of the witnesses suggest that the accused could not control the vehicle due to overspeed. From these facts it could be inferred that the accused failed to exercise reasonable care which was expected of him as the driver of a transport vehicle. A duty was cast on the accused to drive the vehicle with more care and caution especially when he was carrying children in the said jeep. The carrying of goats in the said vehicle without necessary precaution adds to the negligence of the accused. PW.7 has specifically stated that due to the sudden application of the brake, the vehicle turned 13 turtle, which indicates that the accused was rash and negligent in driving the vehicle and he could not control the vehicle. There is no evidence to show any mechanical failure or breakdown. The evidence let in by the prosecution in my view satisfies the ingredients of Sections 279 and 304(A) of IPC and Section 187 of the Motor Vehicles Act, thereby rendering the accused liable for conviction for these offences.
22. The decision relied upon by the learned counsel for the respondent has no application to the facts of this case. The said decision was rendered in an appeal arising out of the conviction of the accused for the offence punishable under Section 120-B read with Section 308 of IPC and Sections 147 and 148 of the Motor Vehicles Act. Having regard to the circumstance in which the incident had taken place, the Hon'ble Supreme Court in the fact situation of the said case has held that, non-conducting of the test identification was fatal to the case of the prosecution. In the instant case, substantive evidence is available on record with regard to the identification of the accused. Therefore, the principles laid down in the said decision cannot be applied to the facts of this case. The Trial 14 Court has overlooked the substantive evidence with regard to the identification of the accused. Hence, its findings being perverse and erroneous are liable to be set aside.
23. For the above reasons, the appeal is allowed. The impugned judgment dated 02.12.2011 in C.C.No.411/2005 is set aside. The respondent/accused is held guilty of the offences punishable under Sections 279 and 304(A) of IPC and Section 187 of the Motor Vehicles Act. The accused is acquitted of the charge under Section 192(A) of the Motor Vehicles Act.
24. Having regard to the manner in which the above offence has taken place and on account of the rash and negligent act of the accused precious life of a woman is lost and two goats having died, in my view, it would be just and appropriate to sentence the accused to simple imprisonment for a period of two years and a fine of Rs.25,000/- for the offence punishable under Section 304(A) of IPC. Since the offence under Section 279 of IPC is a minor offence arising out of the same transaction, separate sentence is not necessary. Hence, no separate sentence is passed for the said offence. For the 15 offence punishable under Section 187 of the Motor Vehicles Act, he is sentenced to pay fine of Rs.1,000/-.
25. The respondent/accused is entitled for the benefit of Section 428 of Cr.P.C. The bail bond of the respondent stands cancelled. He shall be taken into custody to serve the sentence.
The appeal stands allowed as indicated above.
Sd/-
JUDGE LG