Karnataka High Court
State Of Karnataka, vs K Shivan Urmilarao, on 23 September, 2020
Author: V.Srishananda
Bench: V. Srishananda
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 23RD DAY OF SEPTEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRL.A. NO.2812/2011
BETWEEN:
STATE OF KARNATAKA
HONAVAR POLICE STATION,
REPRESENTED BY ADDL.STATE
PUBLIC PROSECUTOR,
ADVOCATE GENERAL'S OFFICE,
HIGH COURT CIRCUIT BENCH UNIT,
DHARWAD
... APPELLANT
(BY SRI.PRAVEEN.K.UPPAR, HCGP)
AND:
K.SHIVAN URMILARAO,
S/O NAGESHWARARAO
AGE: 32 YEARS, DRIVER,
R/O GUNTUR DIST: TALEPALLI,
MANDALAM, ANDRAPRADESH.
... RESPONDENT
(BY SRI.J.BASAVARAJ ADV. APPEARED THROUGH V/C.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1)(B) & 3 OF CR.P.C. SEEKING TO SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL OF ACCUSED-
RESPONDENT DATED 06/07/2011 IN CC.NO.304/2009 ON
THE FILE OF LEARNED JMFC, HONNAVAR AND CONVICT
AND SENTENCE THE ACCUSED/RESPONDENT FOR THE
OFFENCES WITH WHICH HE HAS BEEN CHARGED IN
ACCORDANCE WITH LAW.
2
THIS APPEAL IS COMING ON FOR HEARING, THIS
DAY, COURT DELIVERED THE FOLLOWING:
JUDGMENT
The State is in this appeal challenging the validity of the judgment dated 06.07.2011 passed in C.C. No.304/2009 on the file of Principal JMFC, Honavar.
2. The brief facts which are necessary for the disposal of the appeal are as under :
3. It is contended in the complaint that on 12.03.2009 at about 5.00 p.m. near Gersoppa circle in Hoonavar town on N.H. 17, the respondent being the driver of the lorry bearing No.AP-7/TU-5796 drove the said lorry in rash and negligent manner so as to endanger to human life and dashed to the bicycle which was coming from Gersoppa side, on which two persons were traveling, as a result of which, caused grievous injuries to the rider of the bicycle Harshan and he 3 succumbed to the injuries and thus sought for necessary action.
4. After receipt of the complaint, detailed investigation was conducted by the Investigation Officer and charge came to be filed under Sections 279, 337 and 304A of IPC against the respondent herein.
5. After recording plea, the respondent pleaded not guilty. As such, trial was held.
6. In order to prove the charges leveled against the accused-respondent, the prosecution got examined witnesses as PW1 to 10 and relied on the documentary evidence which were exhibited as Ex.P1 to P9.
7. Pillion rider of bicycle is PW4. He is an eye witness to the incident.
8. After recording 313 statement and after hearing the parties, the learned Magistrate came to the conclusion that the prosecution failed to establish the charges under Section 279, 337 and 304A of IPC and 4 passed an order of acquittal against the respondent- accused.
9. It is that judgment, which is under challenge in this appeal.
10. Heard the learned High Court Government Pleader and Sri. J. Basavaraj, learned counsel for the respondent. Perused the records.
11. Learned High Court Government Pleader contends that the trial court grossly erred in not appreciating the evidence of PW4, who was pillion rider and eye witness to the incident, resulting in erroneous finding.
12. He further argued that mere fact that cycle was on the middle of the road itself would not ipso facto prove that the cyclist was the negligent and there was no negligence on the part of the driver of the lorry.
13. He further argued that the place of accident is Gersoppa circle which is a major junction of Honavar 5 town. As such, the respondent should have taken utmost care in driving the lorry and if such care had been taken by the respondent, the accident would not have occurred. Therefore, finding recorded by the learned Magistrate is erroneous and sought for allowing the appeal.
14. Per contra, learned counsel for the respondent-accused, Sri. J.Basavaraj vehemently contended that after proper appreciation of the entire material on record and by following the dictum in the case of K. Srinivas Vs. State of Karnataka, reported in 2002 (3) KCCR 1961, learned Magistrate has reached the right conclusion and appeal is groundless and sought for dismissal of the appeal.
15. In view of the rival contention urged by the parties, the following point would arise for consideration is:
1. Whether the State makes out a case that the finding recorded by the learned Magistrate in acquitting the accused for the 6 charges under Sections 279, 337 and 304A of IPC is erroneous?
16. Answer to the above point is negative for the following :
REASONS
17. Learned High Court Government Pleader vehemently contended that the entire case hinges the testimony of eye witness, who is examined as PW4.
18. The accident and the death of Harshan is not in dispute in the present case. The cross examination on behalf of respondent clearly shows that he was driving the lorry with all due care and caution, but in the process of overtaking parked lorry, the cyclist (deceased) came on the middle of the road all of a sudden and respondent could not spot the cycle. As such, no negligence attributed to the lorry driver so as to attract charges under Section 279, 337 and 304A of IPC.
19. In the light of such defence, when the material on record is analyze, it is seen that PW4 7 unequivocally admits that the cyclist (deceased) and the cycle was in the middle of the road. The photographs produced before the trial court also depicts the same. Since it is a case under Section 304A of IPC, the doctrine of res ipsa loquitur can also be applied. As such, the opinion expressed by the learned Magistrate that it is the cyclist who was negligent in riding the cycle resulting in the finding that prosecution failed to establish the charges leveled against the accused requires no interference.
20. Except testimony of PW4, no other evidence is available on record to hold that the respondent is guilty of the negligence and such negligence is responsible for the accidental death of Harshan. Further, the dictum in the case of Srinivas K supra is aptly applicable to the case on hand.
21. Under such circumstances, this court is of the opinion that, the State is unable to persuade this court that the finding recorded by the trial court is 8 erroneous and is suffering from legal infirmities or perversity.
22. In view of the foregoing discussions, following order is passed.
ORDER Appeal is merit less and is hereby rejected.
Sd/-
JUDGE MNS/