Karnataka High Court
State By Circle Inspector vs Jayarama on 23 January, 2023
Author: P.N.Desai
Bench: P.N.Desai
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CRL.A No. 706 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE P.N.DESAI
CRIMINAL APPEAL NO. 706 OF 2014 (A)
BETWEEN:
STATE BY CIRCLE INSPECTOR
OF POLICE,
PANAMABUR CIRCLE,
NEW MANGALORE,
D.K. DISTRICT- 575 010.
...APPELLANT
(BY SMT. K.P. YASHODHA, HCGP)
Digitally signed by
NAGARATHNA M
Location: HIGH AND:
COURT OF
KARNATAKA
JAYARAMA,
AGE 23 YEARS,
S/O VENKATAPPA POOJARY
AGED ABOUT 23 YAERS
R/O KALLANAGADI HOUSE
BARYA VILLAGE AND POST
BELTHAGADY TALUK-574214
...RESPONDENT
(BY SRI. JEEVAN. K, ADVOCATE)
THIS CRL.A. IS FILED U/S.378(1) AND (3) CR.P.C BY THE
STATE P.P. FOR THE STATE PRAYING TO GRANT LEAVE TO APPEAL
AGAINST THE JUDGEMENT AND ORDER OF ACQUITTAL DATED
1.6.2014 PASSED BY THE JMFC (II COURT), MANGALORE IN
C.C.NO.2477/2012-ACQUITTING THE RESPONDENT/ACCUSED NOS.2
TO 4 FOR THE OFFENCE PUNISHABLE UNDER SECTION 279 AND
304(A) OF IPC.
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CRL.A No. 706 of 2014
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal arises out of the judgment of acquittal dated 01.06.2014 passed by learned JMFC(II Court), Mangalore in C.C.No.2477/2012, wherein, the Trial Court acquitted the accused for the offences punishable under sections 279 and 304(A) of Indian Penal Code, 1860 (for short referred as 'IPC').
2. The brief case of the prosecution is that on 18.04.2012 at about 6.15 a.m., the accused being the driver of TATA 207 pick-up vehicle bearing registration No.KA-19/MB-0762 drove the vehicle in a rash and negligent manner so as to endanger human life from Mangaluru to Udupi side and dashed against the motor cycle bearing No.KA-19/X-2519, which was driven by one Sirajuddin coming from Surathkal side towards Mangalore alongwith his wife Khathija as pillion rider. Due to the said impact, both Sirajuddin and Khathija fell down from the motor cycle impact and the rider-Sirajuddin succumbed to the injures and his wife Kathija was taken to A.J. Hospital and later she also succumbed to the injuries in the hospital. In this regard, a complaint came to be filed before the jurisdictional police as -3- CRL.A No. 706 of 2014 Ex-P5. The police registered the case, visited the spot, conducted the spot panchanama and also drew the sketch, recorded the statement of the witnesses and after completing the investigation, filed the charge sheet against the accused.
3. In order to prove its case, the prosecution examined 11 witnesses as PW-1 to PW-11 and got marked fourteen documents as Ex-P1 to P14 and Ex-D1 and Ex-D2 were marked during the cross examination by the defence side. After hearing the arguments, learned JMFC acquitted the accused. Aggrieved by the same, the State has preferred this appeal.
4. Heard learned HCGP Smt. K.P. Yashoda, for the appellant-State and learned counsel Sri. Jeevan K, for the respondent.
5. Learned HCGP for the appellant-State argued that the impugned judgment and order of acquittal recorded by the Magistrate is contrary to the law and facts. The Magistrate failed to consider the evidence of PWs-1 to 10 who have stated that they have seen the accused at the time of the accident and accused was the person who was driving the said vehicle. -4- CRL.A No. 706 of 2014 Immediately, FIR was lodged at 7.30 a.m. Respondent/accused has not disputed that he was driving the Pick Up vehicle. Ex-P1 spot mahazar, Ex-P2 sketch tallies with each other. The defence taken by the respondent/accused is contrary to the evidence on record. Learned Magistrate ought to have convicted the accused. Though the witnesses have supported the prosecution, the learned JMFC without appreciating the evidence in proper perspective has acquitted the accused. Hence, prayed to set-aside the acquittal of the accused and convict the accused.
6. Against this, learned counsel for the respondent/accused argued that PW-1 and PW-2 are the auto-rickshaw drivers and they are interested witnesses. Their evidence indicates that they have not at all seen the accident. The spot panchanama is not proved as the witnesses have stated that the accident has taken place on the bridge. There is no material to show that the accident took place on the bridge. There are two sketch maps one is at Ex-P2 and another at Ex-D2. That itself creates doubt about the scene of offence place. There are contradictions in the evidence of PW-1 and PW-2. PW-1 states that he along with -5- CRL.A No. 706 of 2014 PW-2 were at the spot itself from morning 6.15 a.m. till 12.30. p.m. Therefore, the question of lodging the complaint and going to the police at 7.30 a.m. by PW-2 does not arise. Learned counsel also argued that evidence of PW-10 also cannot be believed. Though prosecution case is that in order to over take the lorry, the pick up vehicle driver came in a high speed and dashed to the motor cycle of deceased, but none of the witnesses have stated so. Therefore, the very nature of the accident, place of accident itself is not proved. The accused is not identified by any of the witnesses and the owner of the vehicle has also not supported the prosecution case. Therefore, as there is no evidence to show that the accused drove the vehicle in rash and negligent manner, the trial court after considering the evidence has rightly acquitted the accused and it needs no interference by this Court.
7. I have perused the evidence of the prosecution and records of the case.
8. PW-1 -K. Fakruddin has never stated in his examination-in-chief as to how they were proceeding. He -6- CRL.A No. 706 of 2014 simply states the driver of the Tata Pickup vehicle came in a wrong direction and dashed to the two wheeler and deceased died. He states in the cross examination that he was also auto rickshaw driver and the deceased was also a auto rickshaw driver and they were friends also. Why, he came there is not known. He himself states that when they went to the spot, no other persons were present there. He has admitted that the place of accident is a National Highway and there will be lot of vehicles moving there in the early morning and no other vehicles were coming in front of the pick up vehicle. He has also admitted that there are two sketch maps and he has signed both the sketch maps. It appears he is a chance witness.
9. PW-2 Shabbir has stated he was also going on the motor vehicle and at that time, the driver/accused of the pick up vehicle drove the vehicle in rash and negligent manner and dash to the motor cycle. He also not stated in order to over take the lorry by the pick up vehicle, the accident occurred. He do not know who has taken the injured and deceased to the hospital. He states immediately, after one and half hour, he -7- CRL.A No. 706 of 2014 went to the police, which is contrary to the evidence of PW-1. He states by the time, they went to the spot, already 20 -30 persons had gathered which is contrary to the evidence of PW- 1 because PW-1 states that on his way, there were no other public present and there were 10-15 persons present when the accident occurred. So it appears doubtful as to whether these witnesses haves seen the accident and why he picked up PW-2 is not forthcoming. Therefore, his presence at the scene of offence place is doubtful. He has also admitted he was not knowing the accused nor the accused was shown in the police station. So on what basis, he is deposing is also not forthcoming.
10. PW-4 Zuber gives a new version by stating that as the pick up vehicle was parked on the road side, said accident occurred. Prosecution has treated him as hostile and nothing is elicited in his cross examination.
11. PW-5 Mohammed Kabir was the witness for inquest panchanama.
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12. PW-6 Manohar D. is the owner of the Pick up vehicle. He has also not supported the prosecution.
13. PW-10 P. Salim Razak has given a different version. He has stated that when he reached Baikampady Overbridge, the pick up vehicle came in high speed and dashed to the motor cycle. In the cross examination, he has not identified the accused. The prosecution has treated him as partly hostile and nothing is elicited in his cross examination.
14. PW-11-Kirthikumar is the Investigating Officer.
15. On perusing the scene of offence panchanama-Ex-P1, it does not show that the accident occurred on any bridge. In Ex-P2 sketch and Ex-D2 sketch there is difference in the place of accident. In Ex-P2 it is just by the side of the road, but in Ex-D2, it is 4ft towards western side from the main road and thereafter there is also 6ft kaccha road. So which sketch is to be treated as true is not forthcoming. Why these two sketches are drawn is also not forthcoming. The prosecution evidence is that accused drove the vehicle in rash and negligent manner in order to overtake the lorry and he came on wrong side and -9- CRL.A No. 706 of 2014 dashed to the motor cycle of the deceased, but none of the witnesses have supported this version. None of them have seen the accused nor they have got any acquaintance with the accused. As already stated, spot panchanama clearly indicates that the spot of accident is not on the over bridge, on the other hand, it is 10 ft ahead of road crossing over the bridge. So spot of accident itself is not proved. The rough sketch and evidence is totally different as to the place of accident. This creates doubt about the investigation done by the Investigating Officer. The presence of PW-1 and PW-2 itself is doubtful in view of their contradictory evidence before the Court. Whether actually they have seen the accident itself is doubtful. The panch witnesses stated that they have signed the mahazar at police station. Therefore, it is not safe to believe the evidence of PW-1 and PW-2. Why these two witnesses were standing from morning till 12.00 noon near place of accident is not forthcoming. Therefore, the evidence placed on record suffers from inconsistencies and contradictions.
16. Learned JMFC found that the evidence of PW-1, 2 and 10 does not inspire confidence in them. The place of accident
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CRL.A No. 706 of 2014is not proved and sketch of place of accident is not proved. The identification of driver also is not proved. Learned JMFC relied on the judgment in the case of Ram Krishan and Another V. The State of Delhi reported in 1989 Crl.L.J.(NOC) 93(Delhi) and in the case of Deepak Ramchandra Chavria V. State of Maharashtra reported in 2011 Crl.L.J.743 held that "Whether test identification parade is necessary or not would depend upon whether the witnesses are known to the accused persons and they were not strangers to them. In other words, the identification parade contemplated under section 9 of the Evidence Act is required to be held in order to find out culpability/capacity of the witness to identify the unknown persons whom the witness has seen only at the time of the incident. However, if the accused otherwise are known to the witnesses, it is not necessary to hold test identification parade, since the object of holding identification parade under section 9 of the Evidence Act is to identify the unknown persons and not the known ones."
17. Therefore, on perusing the judgment of the Trial Court and the evidence of the prosecution, it is evident that the
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CRL.A No. 706 of 2014prosecution has failed to prove that the accused drove the vehicle in dash and negligent manner so as to endanger the human life. In order to ascertain the rash and negligent driving, the sketch map, place of accident, the spot panchanama are very important and the evidence of the witnesses should corroborate the same. But, here, in this case, the place of accident is not proved. Two sketches showing different locations itself creates doubt about the accident, thereby makes the prosecution allegations regarding the manner in which the accident has taken place doubtful. Therefore, I find that the judgment of acquittal passed by the learned JMFC is neither perverse nor illegal.
18. The Hon'ble Supreme Court has laid down the general principles regarding interference, the power of the appellate Court in an appeal against judgment of acquittal by the trial court. In the case of Sampat Babso Kale and Another v. State of Maharashtra [(2019) 4 SCC 739], at para-8, it is held thus:
"8. With regard to the powers of an appellate court in an appeal against acquittal, the law is well
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established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in the case of Chandrappa & Ors. v. State of Karnataka [(2007) 4 SCC 415], laid down the following principles:-
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3)Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted
conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to
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curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is 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.
(5) 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."
Therefore, viewed from these principles, if the judgment of acquittal is considered, in my considered opinion, the appeal deserves to be dismissed.
Accordingly, I pass the following:
ORDER
1. The appeal filed by the State-appellant under section 378(1) and (3) Cr.P.C. stands dismissed.
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CRL.A No. 706 of 2014
2. Consequently, the judgment and order of acquittal dated 01.06.2014 passed by learned JMFC(II Court), Mangalore, in C.C.No.2477/2012 against the respondent/accused is hereby confirmed.
3. Bail bond, if any, executed by the accused, the same shall stand cancelled.
4. Office is directed to send back the records to the trial court.
5. No order as to costs.
Sd/-
JUDGE MN List No.: 1 Sl No.: 34