Karnataka High Court
State By Police Inspector vs S. Manoharan on 21 January, 2014
Equivalent citations: 2014 CRI. L. J. 3307, 2014 (3) AIR KANT HCR 55, (2014) 4 ALLCRILR 332, (2014) 3 TAC 122
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 21ST DAY OF JANUARY, 2014
BEFORE:
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL APPEAL NO.2713/2011
BETWEEN
STATE BY POLICE INSPECTOR
OF SOUTH TRAFFIC
POLICE STATION, HUBLI.
REP. BY ADDL SPP, HIGH COURT
CIRCUIT BENCH, DHARWAD. ... APPELLANT
(BY SRI V.M. BANAKAR, ADDL. SPP)
AND
S. MANOHARAN
S/O SUNDAR RAJAN
AGE: 35 YEARS, OCC: GOODS TRUCK DRIVER,
R/O HOUSE NO. 1/10,
SCHOOL STREET, NALLIPALAYAM,
TQ. & DIST. NAMAKAL,
TAMIL NADU ... RESPONDENT
(BY SRI BAHUBALI N KANBARGI, AMICUS CURIAE.)
*****
THIS CRIMINAL APPEAL IS FILED U/S 378(1) &
(3) OF CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL
AGAINST THE JUDGEMENT AND ORDER OF
ACQUITTAL AND BE SET ASIDE THE ORDER DATED
2
25.11.2010 PASSED BY THE I-ADDL. SESSIONS
JUDGE, DHARWAD, SITTING AT HUBLI, IN
CRL.A.NO.61/2009, AND RESTORE THE ORDER
PASSED BY THE JMFC I-COURT, HUBLI, IN
C.C.NO.365/2006 BY THE ORDER DATED 10.06.2009
& CONSEQUENTLY CONVICT THE ACCUSED FOR THE
OFFENCE WHICH THEY HAVE BEEN CHARGED.
THIS CRIMINAL APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The State by Police Inspector of South Traffic Police Station, Hubli, laid a charge sheet against the respondent/accused (hereafter referred to as the 'accused' for the offence punishable under Sections 279, 337 and 304-A of IPC and also for the offence punishable under Section 134 read with Section 187 of the Motor Vehicles Act.
2. The brief facts that emanate from the charge sheet papers are that:
3
On 26.8.2005 at about 8.30 a.m., on Hubli - Dharwad by-pass road, near Bridge No.406/3 in Nekarnagar, Hubli, the accused being the driver of the Goods Truck bearing Registration No.KA-01/AB-4559 drove the vehicle in a rash and negligent manner so as to endanger the human life and while overtaking the other vehicles, dashed against the Tata Sumo vehicle bearing Registration No.KA-05/B-3367 which was coming from the opposite direction. Due to the accident, the driver of the Tata Sumo vehicle and one Naveen an inmate of the Tata Sumo vehicle succumbed to the injuries and CWs.1, 8, 9, 12 and 13 sustained simple injuries. It is alleged that the accused, immediately after the accident ran away from the spot. During the course of the trial, the accused was pleaded not guilty. Therefore, the trial was held by the learned Magistrate. The prosecution in order to bring home the guilt of the accused, examined seven witnesses i.e. PWs.1 to 7 and Exhibits P1 to P14 were got marked. 4 The accused was also examined u/s.313 of Cr.PC, wherein he denied the complicity in the matter. However, he did not choose to lead evidence on his side. On appreciation of the entire oral and documentary evidence on record, the Trial Court has come to the conclusion that the prosecution has proved the case against the accused beyond reasonable doubt. Hence, the trial Court recorded a judgment of conviction for the offence punishable under Sections 279, 337 and 304-A of IPC and also for the offence punishable under Section 134 read with Section 187 of the Motor Vehicles Act.
The Trial Court, sentenced the accused to undergo Simple imprisonment for a period of three months for the offence punishable under Section 279 of IPC and Simple imprisonment for a period of three months for the offence punishable under Section 337 of IPC and Simple imprisonment for a period of one year for the offence punishable under Section 304-A of IPC and one 5 month for the offence punishable under Section 234 read with Section 187 of the MV Act.
3. The said judgment of conviction and sentence was challenged before the I Addl. Dist. And Sessions Judge, Dharwad in Criminal Appeal No.61/2009. The learned Sessions Judge after re-appreciating the entire materials on record, come to the conclusion that the identity of the accused has not been properly established by the prosecution and that the prosecution has failed to establish that the accused was the driver of the Goods Truck and he drove the vehicle in a rash and negligent manner on that particular day. The Appellate Court holding that the prosecution has not proved the guilt of the accused beyond reasonable doubt, acquitted the accused. The State, being aggrieved by the judgment of the Appellate Court, preferred this appeal.
4. I have carefully perused the evidence recorded and the documents produced before the trial Court, 6 appreciation of the evidence by the trial Court and also by the Appellate Court. On overall analysis of the entire materials on record, the point that would arise for the consideration of this Court is:
"Whether the Appellate Court has committed any serious error in reversing the judgment of the trial Court and consequently acquitted the accused."?
5. My answer to the above point is in the 'Negative' for the following reasons:
It is seen from the trial Court records that when the witnesses have examined before the court, it appears that the accused was absent. While examining PWs.3 & 4, Naresh and Hemanth, the learned Counsel for the accused filed an application for exemption submitting that there is no dispute with regard to the identification of the accused.7
6. The learned Addl. SPP strenuously contends that it amounts to an admission on the part of the accused that he was the driver who was driving the Goods Truck at that particular point of time. So far as this aspect is concerned, the said admission even if it is taken as admission on the part of the counsel, at any stretch of imagination, it cannot be said that it is an admission on the part of the accused. Even that strong piece of evidence recorded by the learned Magistrate has to be tested with the other materials on record. On perusal of the cross examination of all the prosecution witnesses, invariably, it is suggested that accused was not driving the offending vehicle and it is suggested that the witnesses are deposing falsehood that, the accused was driving the vehicle on that particular day. The statement of the accused recorded by the learned Magistrate also discloses at page No.9 for the question that -
8
'PW7 has recorded the further statement of the witnesses who have identified the accused person. Whether you wish to say anything in the matter' The accused has answered that -
'the statement of the witness is false and stated that after a week of the accident, the police have secured the presence of the accused to the police station'.
The portion of the evidence of the witnesses regarding identification of the accused have also put to the mouth of the accused and he has specifically denied the identification by the witnesses particularly at page Nos.2, 3, 4 and 5 of his statement under Section 313 of Cr.PC and thus for so many questions put to the accused he has specifically taken up the contention that he was not the driver of the said vehicle on that particular day and he was not driving the said vehicle. Looking to the above said materials available on record, the defence of the accused is unequivocally elicited in 9 the cross examination of the prosecution witnesses, that he was not driving the vehicle on the date of the incident. Therefore, even if the counsel for the accused has stated before the court that he has no dispute with regard to the identification of accused, it cannot be said that such submission can be taken as proof of rash and negligent driving by the driver of the said Goods Truck. Therefore, this argument of the learned Addl. SPP cannot be taken into consideration.
7. Now, coming to the evidence on record, the first Appellate Court has specifically recorded the finding that the prosecution has not placed sufficient materials in order to prove that the accused was driving the vehicle on that particular day. At page 11 of the judgment, the learned Sessions Judge has described as to how the witnesses could see the driver of the offending vehicle. It is stated that the Tata Sumo vehicle in which the witnesses were traveling was 10 proceeding towards Bangalore from Goa on the left side of the road whereas the opposite goods vehicle coming from the opposite direction. The oral evidence of PWs.1, 3 to 5, is that they could not see the driver of the opposite vehicle.
8. Coming to the evidence of prosecution as appreciated by the Appellate Court, it is discussed that all these witnesses were not sitting in the front seats in the Tata Sumo vehicle but they were all sitting on the rare seats. It is also observed that some of the witnesses were sleeping in the Tata Sumo vehicle. Therefore, they had no opportunity to see the driver of the opposite vehicle at the time of actual driving by the driver of the said vehicle. It is also observed by the learned Sessions Judge that the evidence of PWs.3 & 5 in the course of cross examination, it was elicited that on the say of the Police, they came to know that the Goods Truck dashed against the Tata Sumo vehicle. When that being so, the 11 evidence of PWs.1 to 4 that they could see the accused was the driver of the said vehicle was dis-believed. The learned Sessions Judge has also taken into consideration the oral evidence of the witnesses. Apart from the above, the owner of the vehicle has not been examined. No materials have been collected by the Investigation Officer from the owner of the vehicle to show that the accused was actually driving the vehicle on that particular day. On these grounds, the learned Sessions Judge has acquitted the accused persons.
9. Let me have a glance of the evidence of the prosecution witnesses as to whether the observation made by the learned Sessions Judge is proper and correct. PW1 Madhav, in his examination in chief has stated that due to the impact of the accident, the doors of the Tata Sumo vehicle was jammed and these witnesses were drawn out from the windows of the said vehicle. He has further stated that he has seen the 12 lorry which caused the accident and some person was running away from the lorry. But he never stated that he saw the face of the said person at the time when he was running away so that he can identify the said person later.
10. He has also given statement before police wherein, he has stated that he can identify the driver of the said vehicle. In the course of cross examination, he has stated that he saw some person getting down from the right side of the said lorry and running. He cannot say how many drivers were there in the said vehicle and whether the person who got down from the right side of the said vehicle was driving the vehicle or not. Therefore, he has a doubt about the accused was the person getting down from the said vehicle and ran away from the spot. It appears only on the basis of the police information, this witness has stated about the name of the accused.
13
11. PW3 in similar manner of course in the examination in chief has mentioned the name of the accused and stated that he can identify the said accused. But, he never stated that accused was the person who was driving the said lorry on that particular day and he saw the accused driving the vehicle. But he has stated that one Manohar was driving the said vehicle. Specifically it is elicited in the course of cross examination that at the time of the incident he was sleeping in side the Tata Sumo vehicle. This evidence will not help the prosecution. For this sole reason, the evidence of this witness cannot be believed when he has not seen the accused driving the vehicle on that particular day. It is elicited as to how he came to know the name of the accused. He deposed that he came to know the name of the accused from the police and he also said that he does not say how many drivers were there in the offending vehicle. Therefore, the evidence of 14 this witness and PW1 are not helpful to draw a definite inference that the accused was driving the vehicle on that particular day.
12. Likewise, PW4 also deposed in the same manner. In the course of cross examination, he also admitted that he does not know who was the driver of the offending vehicle on that particular day. But he says that the driver of the said vehicle ran away from the spot on that day. He could even say, the features of the person who ran away from the spot. When such being the case, how he can see and how he can identify the accused person was driving the vehicle.
13. PW-5 is the another injured witness. He has stated that the accused was driving the vehicle on that particular day and he ran away from the spot. He also in the course of cross examination admitted that he came to know about the name of the accused from the 15 Police. He admitted that he was sitting on the rare seat of the Tata Sumo vehicle. He deposed about 5 - 10 minutes after the accident, he came out from the vehicle on his own. This evidence runs counter to the evidence of PW1 who said that the doors of the Tata Sumo were jam packed and they were actually drawn out from the window of the said Tata Sumo vehicle. This witness also admit that earlier to the incident, he has not seen the accused at any point of time and he also does not know how many drivers were there in the said lorry etc., As I have already narrated that in so far as the cross examination of this witness, it is suggested to this witness that the accused was not driving the vehicle on that particular day.
14. Looking to the above said evidence, even after re-appreciation, one cannot definitely say that the prosecution has proved the identity of the accused beyond reasonable doubt. Any doubt with regard to the 16 identity of the accused occurs to the mind of the court that benefit always should be given in favour of the accused. In the doubtful circumstances, no court can convict the accused for the offences. In the above said circumstances, I do not find any strong reasons to interfere with the judgment passed by the Appellate Court. Hence, this appeal is liable to be dismissed.
Accordingly, the appeal filed by the State is hereby dismissed. The fee of amicus curiae is fixed at Rs.5,000/-.
SD/-
JUDGE PL