Karnataka High Court
State By Traffic Police Station, Bidar vs Shivashankarappa S/O Siddaramappa on 11 January, 2013
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 11TH OF JANUARY, 2013
BEFORE
THE HON'BLE MR.JUSTICE MOHAN SHANTANAGOUDAR
CRIMINAL APPEAL NO.3505/2008
BETWEEN :
State by Traffic
Police Station
Bidar
.. APPELLANT
(By Sri Sanjay A.Patil, Addl.SPP)
AND :
Shivashankarappa
S/o.Siddaramappa
Aged 38 years
R/o.Basaveshwar Colony
Chincholi Road
Sedam District
Gulbarga
.. RESPONDENT
(By Sri Ashok G.Mulge, Amicus Curiae)
This appeal is filed under Section 378(1) & (3) of
Cr.P.C. by the advocate for the appellant praying that this
Hon'ble Court may be pleased to grant leave to appeal
against the judgment of acquittal dated 10.4.2008 in
CC.No.390/2007 recorded by the learned Prl.JMFC(II),
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Bidar, acquitting the accused-respondent of the offences
p/u/s.279, 337, 304-A IPC r/w. Section 187 of MV Act.
This appeal coming on for hearing, this day the Court
delivered the following:-
JUDGMENT
Sri Ashok Mulge is requested to assist the Court as Amicus Curiae.
Heard Sri Sanjay Patil, learned Additional SPP for the appellant and the learned Amicus Curiae for the respondent.
2. This appeal is filed by the State against the judgment and order or acquittal dated 10.4.2008 passed by the Principal JMFC (II), Bidar in CC.390/2007. The respondent-accused was tried for the offences punishable under Sections 279, 337, 304A IPC r/w. Section 187 of IMV Act.
3. Case of the prosecution in brief is that at 11.00 a.m. on 3.12.2006, the respondent being the driver of the lorry bearing Regn.No.KA-25-B-1809 drove the lorry in a rash and negligent manner on -3- Bidar-Chidri Road and dashed against the back portion of Tom Tom (mini door auto) bearing Regn.No.KA-38- 1486. Due to impact Jagadevi who was travelling in Tom Tom fell on the road and the lorry ran away on her body. Certain other persons who were travelling in Tom Tom also sustained injuries. Thereafter the accused ran away from the scene of offence without informing the same to the concerned police. Jagadevi succumbed to the injuries sustained during the accident while taking the treatment.
Respondent was charged with the offences punishable under Sections 279, 337, 304A of IPC r/w. Section 187 of IMV Act.
4. In order to prove its case, the prosecution in all examined 10 witnesses and got marked 9 exhibits. On completion of trial and upon hearing, the Court below acquitted the accused giving the benefit of doubt to the accused.
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5. PWs.1, 4, 5 and 6 are the eye witnesses to the incident. Out of them, PWs.1 and 4 were co- passengers along with the deceased Jagadevi. All the eye witnesses have deposed that the lorry which came from back side, dashed against the back portion of Tom Tom, due to which Jagadevi succumbed to injuries sustained to her. It is also admitted by them that the entire back portion of Tom Tom was damaged because of the impact. Thus, according to the eye witnesses, the accused-respondent has driven the lorry in a rash and negligent manner and dashed against the back portion of Tom Tom. The evidence of these witnesses is consistent and cogent.
But the effect of the evidence of these witnesses is completely washed out by the evidence of PW.9, the Motor Vehicle Inspector. He is a Government Official and an independent witness. His evidence reveals that no damage has occurred to the back portion of Tom Tom. The evidence of PW.9 is totally contrary to -5- the evidence of PWs.1 and 4 to 6. As aforementioned, the eye witnesses have deposed that the entire back portion of Tom Tom was damaged, whereas the evidence of PW.9-Motor Vehicle Inspector reveals that no damage has occurred to the back portion of Tom Tom. If really the lorry had hit the back portion of Tom Tom, definitely there would have been huge damage to the back portion of Tom Tom, particularly when lorry was fully loaded with cement bags. Ex.P7 is the report of Motor Vehicle Inspector, which also indicates that there is no damage to the back portion of Tom Tom. Under such circumstances, the Court below is justified in disbelieving the evidence of PWs.1 and 4 to 6. In this view of the matter, the trial Court is justified in concluding that the prosecution has failed to prove that the lorry has dashed against Tom Tom from behind and that the driver of the lorry- respondent herein has driven the vehicle in a rash and negligent manner. Though the evidence of PWs.1 and -6- 4 to 6 supports the case of the prosecution to prove the accident, their evidence does not support that the alleged accident was due to rash and negligent driving of the lorry by the respondent-accused.
6. The doctor who conducted the postmortem examination over the dead body of the deceased Jagadevi, has admitted that injury Nos.1 to 5 and 6 to 9 can happen if a person falls to the ground from a moving vehicle. Since the prosecution has failed to prove that the lorry has dashed the back portion of Tom Tom, the only presumption would be that the deceased must have fallen from moving Tom Tom and lost her life. There is nothing on record to show that any of the wheels of the lorry were stained with blood. Neither in the report of the Motor Vehicle Inspector nor the evidence of Motor Vehicle Inspector, such a material is found. In the absence of such material, the trial Court is justified in coming to the conclusion -7- that the prosecution has failed to prove the charges levelled against the respondent.
7. This an appeal against an acquittal. It is by now well settled that the appellate Court must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Trial Court.
If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.
In view of the shaky material on record, the Court below is justified in coming to the conclusion -8- that the prosecution has failed to prove its case beyond the reasonable doubt. Even on re- appreciating the material on record, this Court does not find any ground to interfere with the order of acquittal.
Hence, appeal fails and accordingly, the same stands dismissed.
This Court places on record the valuable assistance rendered by Sri Ashok Mulge, learned Amicus Curiae.
Office is directed to pay Rs.4,000/- (Rupees four thousand only) to the learned Amicus Curiae as honourarium.
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JUDGE *ck/-