Karnataka High Court
The State By Inspector Of Police vs Manjunath S/O Mallikarjuna Lalasangi on 19 September, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 19TH DAY OF SEPTEMBER , 2013
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No.2561/2009
BETWEEN:
The State by
Inspector of Police,
Traffic Police Station,
Dharwad. .. APPELLANT
(By Shri V.M.Banakar, Additional State Public Prosecutor)
AND:
1. Manjunath,
S/o Mallikarjuna Lalasangi,
Aged 20 years,
Occ: Driver,
R/o Pyati Oni, Narendra,
Taluk and District Dharwad.
2. Ninganagouda
S/o Fakkiragouda Patil,
Aged 32 years,
R/o Hosawal,
Taluk and District Dharwad. .. RESPONDENTS
(By Shri M.B.Hiremath, Advocate for Respondent no.1
2
Shri N.P.Vivek Mehta, Advocate for Shri M.M.Khannur, for
Respondent no.2)
This appeal is filed under Section 378(1) and (3) of the Code of
Criminal Procedure, 1973 praying to grant leave to appeal against the
judgment and order of acquittal dated 31.12.2008 passed by the
learned Principal Civil Judge (Senior Division) and CJM, MACT,
Dharwad in CC No.714/2002 for the offences punishable under
Sections 279, 338 and 304A of the Indian Penal Code, 1860.
This appeal coming on for final hearing this day, the Court
delivered the following:
JUDGMENT
Heard the learned Additional State Public Prosecutor and the learned Counsel appearing for the respondents.
2. The present appeal is by the State against the judgment and order of acquittal of accused no.1, namely, respondent no.1 for offences punishable under Sections 279, 337, 338, and 304A of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC', for brevity) and under Sections 181 and 187 of the Motor Vehicles Act, 1988 (Hereinafter referred to as the 'MV Act', for brevity) and as against respondent no.2 for offences punishable under Sections 181 and 196 of the MV Act.
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This appeal is confined insofar as the acquittal of accused no.1 namely, respondent no.1. Insofar as the conviction of accused no.2 - respondent no.2 is concerned, that has attained finality as no appeal is filed against his conviction, either seeking enhancement of the same by the State or for reversal of such conviction by accused no.2.
3. The facts of the case are as follows:-
That on 8.5.2002 at about 11.30a.m., when accused no.1 being the driver of a Maxi Cab vehicle bearing registration No.KA 25/9757 was proceeding from Belgaum to Dharwad in north-south direction. The accused no.1 having lost control of the vehicle, had dashed against a road side tree on the left of the road and moved another 28 feet and dashed against the compound wall of the Mental Hospital, thereby causing injuries to 15 inmates, of whom, two had succumbed to the injuries. It is in this background that a case has been registered against the accused. The allegation against accused no.2 was that accused no.1, who did not possess a valid driving licence, had been 4 permitted by accused no.2 to drive the vehicle and therefore, he was also liable for offences under sections 181 and 196 of the MV Act.
A case having been registered, the accused were charge- sheeted and the charges were framed. The accused having pleaded not guilty and claimed to be tried, the prosecution had tendered evidence and on the basis of the evidence and rival contentions, the court below had framed the following points for consideration:
"1. Whether the prosecution proves that on 8.5.2002 at 11.30a.m. near S.P.Office on P.B.Road, accused no.1 being the driver of Maxi Cab bearing No.KA 25/9757 drove the same in rash and negligent manner so as to endanger human life or personal safety of others and dashed to a road side tree then to the compound wall of Mental Hospital and in the said process, CW.11 to CW.22 sustained simple injuries CW.23 to CW.27 sustained grievous injuries and caused the death of Sanganagouda Patil and Gopal Badiger?
2. Whether the prosecution proves that accused No.1 being drive of Maxicab has failed to prove medical aid to injured persons and failed to report the accident to the police?5
3. Whether the prosecution proves that accused No.1 being driver of said Maxicab bearing No.KA 25/9757 drove the same without driving licence?
4. Whether the prosecution proves that accused No.2 being the owner of Maxicab bearing No.KA 25/9757 allowed accused No.1 to drive the vehicle knowing fully well that accused No.1 had no valid driving license?
5. Whether the prosecution proves that accused No.2 being the owner of Maxi Cab bearing No.KA 25/9757 failed to insure the said vehicle?"
The court below held point no.1 in the negative and points 2 to 5 in the affirmative and accordingly acquitted accused no.1 of offences punishable under Sections 181 and 187 of the MV Act and sentenced him to pay a fine of Rs.500/- and had also convicted accused no.2 for the offences punishable under Sections 181 and 196 of the MV Act. It is only insofar as the acquittal of accused no.1 is concerned, that the present appeal is filed.
4. The learned Additional State Public Prosecutor, while taking this court through the judgment of the court below, would point out 6 the glaring circumstance that in paragraphs - 7 to 28, the court below has merely summarised the statements made by several witnesses and has in a cryptic fashion, proceeded to hold that the prosecution had failed to prove the guilt of accused no.1 for the offences alleged, since PW.4 one of the eye witnesses had turned hostile and PW.12 had not identified accused no.1 and though there was an accident, the prosecution had failed to prove the rash and negligent driving on the part of accused no.1 and hence has extended the benefit of doubt in favour of the accused. The learned Additional State Public Prosecutor would point out that the court below was required to discuss the evidence and arrive at reasons, even if it could acquit the accused and merely on the finding that PW.4 had turned hostile or that PW.12 had not identified the accused by itself was not sufficient to acquit the accused in respect of the ghastly accident, where 15 people were injured and two had died and this results in miscarriage of justice.
5. The learned Counsel for respondent no.1 though seeks to justify the judgment would not be in a position to indicate that the 7 court below had applied its mind in analysing the evidence of the prosecution in the face of a serious accident, which itself could not be denied and therefore, it was necessary for the trial court to have applied its mind to the evidence on record and to have analysed the same in arriving at the conclusion in accordance with law. As it stands, the judgment of the court below is miserably lacking in application of mind and therefore, would have to be set aside insofar as the acquittal of accused no.1 is concerned. Since the conviction of accused no.2 has not been questioned by the State nor by the said accused himself, there is no warrant to reopen the case insofar as accused no.2 is concerned.
Consequently, the appeal is allowed. The judgment of the court below to that extent is set aside and the matter is remanded for a fresh consideration. The court below shall reexamine the evidence on record after hearing the parties concerned, namely, the State and accused no.1 and thereafter proceed in accordance with law. 8
It is stated by the learned Counsel for accused no.1 that since the acquittal the respondent no.1 is set aside, it would be in the fitness of things if the respondent no.1 is permitted to cross-examine witnesses PWs.1 to 3 who were not cross-examined, no doubt there was default on the part of the accused. Having regard to the fact that the matter is being remanded for a fresh consideration, no prejudice would be caused if respondent no.1 is permitted to cross-examine PWs.1 to 3, which would complete the record.
SD/-
JUDGE nv