Karnataka High Court
The State By Mysuru vs Sri K R Sathyanarayanarao on 1 March, 2019
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF MARCH 2019
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL APPEAL No. 1074 OF 2017
BETWEEN:
The State by Mysuru
South Police Station,
Represented by
State Public Prosecutor,
Bengaluru-01. ...Appellant
(By Sri. Divakar Maddur, HCGP)
AND:
Sri. K.R.Sathyanarayanarao,
Son of late K.R.Rajagopalarao,
Aged about 51 years,
Residing at 33, L.I.G-2,
6th Cross, K.Block,
Ramakrishnanagara,
Mysuru-570 001. ...Respondent
(By Sri. P.D.Subramanya, Advocate)
This Criminal Appeal is filed under Section 378(1) and
(3) of Cr.P.C praying to grant leave to appeal against the
judgment and order of acquittal dated:11.04.2017 passed by
the Learned II Civil Judge and JMFC, Mysuru in
C.C.No.8/2011 thereby acquitting the accused/respondent of
Crl.A.No.1074/2017
2
the offences punishable under Section 279, 338, 304A of IPC.
The SPP/State prays that above order may be set aside.
This Criminal Appeal coming on for Admission this day,
the Court delivered the following:
JUDGMENT
The State has preferred this appeal challenging the judgment of acquittal dated 11.04.2017, passed by the learned II Civil Judge and JMFC, Mysuru, (hereinafter for brevity referred to as "trial Court"), in C.C.No.8/2011, wherein it has acquitted the present respondent for the offences punishable under Sections 279, 338 and 304-A of the Indian Penal Code, 1860 (hereinafter for brevity referred to as "IPC").
2. The summary of the case of the prosecution in the trial Court is that on 20.8.2010, at about 5.00 a.m., within the jurisdiction of the Mysuru South Police Station, on Hosahundi Road, behind the Bandipalya APMC, in front of the land of Jabbar Saheb, the accused (respondent herein) being a rider of motorcycle bearing Crl.A.No.1074/2017 3 registration No.KA-09-EK-7143, rode the same in a rash and negligent manner from Uttanahalli towards Mysuru and dashed against another motorcycle bearing registration No.KA-09-EE-0223, and caused a road traffic accident. As a result of the same, the rider of the opposite vehicle by name Karigowda and one Sri Ravi, the pillion rider in the offending vehicle, sustained grievous injuries. Injured Karigowda succumbed to the injuries in the hospital. As such, the accused has committed the offences punishable under Sections 279, 338 and 304-A of IPC.
3. Charges were framed against the accused for the offences punishable under Sections 279, 338 and 304-A of IPC.
4. Since the accused pleaded not guilty, trial was held, wherein the prosecution examined seven witnesses as PWs.1 to 7 and got marked documents Crl.A.No.1074/2017 4 from Exs.P-1 to 15(a). Neither any witness was examined from the side of the accused nor any documents were marked from the side of the accused and no material objects were marked.
5. After hearing both side, the trial Court by its impugned judgment dated 11.04.2017, acquitted the accused for the alleged offences. It is against the said judgment, the State has preferred this appeal.
6. Though the respondent was served, but, had remained unrepresented, as such, this Court by its order dated 21.1.2019, appointed Sri P.D.Subramanya, learned counsel and panel advocate from the Legal Services Committee of this Court as the counsel to defend the interest of the respondent.
7. Though this matter was listed for Admission, with the consent of learned counsels from both sides, the matter is taken up for final disposal. Crl.A.No.1074/2017 5
8. Heard arguments from both side, perused Memorandum of Appeal, impugned judgment and Lower Court Records.
9. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
10. Learned High Court Government Pleader in his arguments submitted that the accident in question, death of Karigowda due to injuries sustained by him in the accident and PW-5 being the pillion rider of the offending vehicle also sustaining injuries, is not in dispute. In the light of the same, the evidence of the Investigating Officer and the wife of the deceased go to show that the death of the deceased was due to rash and negligent driving of the motorcycle by the accused. However, the trial Court without appreciating the said fact, has erroneously pronounced the judgment of acquittal.
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11. Learned counsel for the respondent/accused in his argument submitted that he would not dispute the occurrence of the accident and date, time and place mentioned in the charge sheet, so also, the death of Karigowda after sustaining injuries in the said accident. He would also not dispute that the pillion rider of the alleged offending vehicle sustaining injuries in the accident. However, he strongly opposes that there is any evidence to show that there was any rash and negligent riding of the motorcycle by the accused. On the other hand, the evidence led by the prosecution themselves go to show that deceased Karigowda was inebriated and deceased himself came and dashed to the motorcycle of the accused, resulting in the accident. As such, the trial Court has rightly pronounced the judgment of acquittal.
12. Among the seven witnesses examined by the prosecution, PW-1 - Kumar, is the complainant in the case. He has stated that deceased Karigowda was his Crl.A.No.1074/2017 7 brother-in-law. On the date of the accident, in the evening at 5.30 p.m., he came to know about the occurrence of the accident near Bandipalya. Immediately, he rushed to the spot and found that his brother-in-law - Karigowda had fallen on the road sustaining injuries. He shifted the injured to J.S.S.Hospital, from there, to Apollo Hospital. On the same night, at about 11.40 p.m., injured Karigowda succumbed to the injuries. The witness has also stated that on the next day morning, he lodged a complaint with the police. After registering the complaint, the police visited the spot and as shown by him, they inspected the spot and drew a scene of offence panchanama. The witness has identified the complaint lodged by him and the scene of offence panchanama at Exs.P-1 and P-2 respectively.
13. PW-2 - Siddegowda, has stated that he does not know accused and PW-5 - Ravi. However, on the Crl.A.No.1074/2017 8 date of accident, in the evening at about 7.00 p.m. to 7.30 p.m., on coming to know that a road traffic accident had occurred, he rushed to the spot and admitted the injured to the hospital. On the same night at Apollo Hospital, the injured succumbed to the injuries. The witness has specifically stated that he does not know how the accident has occurred. However, he came to know that the accident involved two motorcycles.
14. PW-3 - Smt.Savitha, has stated that deceased Karigowda is her husband and while she was in her parents' house, through her elder brother i.e., PW-1, she came to know that her husband sustained injuries in a road traffic accident and succumbed to it. She also stated that while her husband was going on his motorcycle, another motorcycle coming from the opposite direction dashed to it, resulting in the accident, where her husband sustained injuries. She has stated that when she went to the hospital, she saw her Crl.A.No.1074/2017 9 husband - the injured, was unconscious having sustained injuries to head and limbs. She has also stated that subsequently she came to know that accused was riding the offending motorcycle.
15. PW-4 - Raju, has stated that the police have drawn the scene of offence panchanama in his presence and also seized two motorcycles from the spot.
16. PW-5 - Ravi, has stated that he was a pillion rider in the alleged offending vehicle. He has stated that the accused was the rider of the alleged offending motorcycle at the time of accident, however, he was riding cautiously and very slowly. He has stated that the Kinetic Honda motorcycle coming from the opposite direction came in a rash and negligent manner and dashed to the motorcycle on which he was riding as a pillion rider. In the said accident, himself sustained injuries, so also, the rider of the opposite motorcycle. Crl.A.No.1074/2017 10 He has also stated that the said rider of the opposite motorcycle who sustained injuries had consumed alcohol as could be smelt from his mouth at the time of the accident. He has stated that police have not enquired him with respect to the accident. He was treated as hostile and prosecution was permitted to cross-examine him.
Even in his cross-examination, he adhered to his original version.
17. PW-6 - P.Jagadish, then Police Sub-Inspector of the complainant-police station has stated about he receiving the complaint as per Ex.P-1 on 29.3.2010, at about 11.30 a.m. and registering it in their station Crime No.92/2010, for the offences punishable under Sections 279, 304-A of IPC and under Sections 134 (a) & (b) of Motor Vehicles Act, 1988. He has also stated that as per Crl.A.No.1074/2017 11 Ex.P-12, he submitted FIR to the Court and handed over further investigation to CW-20.
18. CW-20/PW-7 - Gopalakrishna, has stated that while working as the Circle Inspector of Mysuru Rural Circle, he took up further investigation in this matter on 29.3.2010 and on the same day, he drew inquest panchanama on the dead body of Karigowda in the mortuary of Apollo Hospital as per Ex.P-8 He visited the scene of offence as shown by PW-1 and drew a scene of offence panchanama as per Ex.P-2. He prepared a sketch of the scene of offence as per Ex.P-
13. On 5.4.2010, he seized the offending motorcycle produced by his Police Constable by drawing seizure panchanama as per Ex.P-12. He has also stated that he got the motorcycle inspected by the Motor Vehicle Inspector and collected their report as per Ex.P-6. He also stated that he got the dead body of Karigwoda post mortem examination done and collected Crl.A.No.1074/2017 12 its report as per Ex.P-7. After getting the Examiner's report from Forensic Science Laboratory as per Ex.P-10 and getting final opinion of the doctor regarding the death of the deceased, he completed the investigation and filed the charge sheet against the accused for the alleged offences.
19. The accused has not denied the occurrence of the accident, date, place and time as mentioned in the charge sheet, rather, PW-5 who claims to be an injured in the accident and also the pillion rider of the alleged offending motorcycle at the time of the accident himself has stated about the involvement of two motorcycles bearing registration No.KA-09-EK-7143 and KA-09-EE- 0223 in the said accident. He has also stated that his brother-in-law i.e., accused was riding the alleged offending motorcycle. Thus, the occurrence of the accident and the date, place and time and the said road Crl.A.No.1074/2017 13 traffic accident involving two motorcycles remains an undisputed fact.
Similarly, the accused has not denied that PW-5 was a pillion rider in the alleged offending motorcycle and he sustaining injuries in the accident and also one Sri Karigowda being the rider of another motorcycle that was bearing registration NO.KA-09-EE-0223 also sustaining injuries in the accident and succumbing to the same on the same night at Apollo Hospital. The evidence of prosecution witnesses and also the Motor Vehicle Inspector's report at Ex.P-5 and post mortem report at Ex.P-6 and the wound certificate at Ex.P-8 further corroborates the same. Even in the cross- examination of all the prosecution witnesses from the accused side, it was not denied about the occurrence of accident and involvement of two motorcycles, including that of the accused and the death of Karigowda due to Crl.A.No.1074/2017 14 he sustaining the injuries in the accident and PW-5- Ravi also sustaining injuries.
20. In the light of these undisputed facts, the only question remains to be considered is whether the prosecution has proved that there was rash and negligent riding of the motorcycle by the accused which has resulted in PW-5 sustaining injuries and deceased Karigowda sustaining grievous injuries and succumbing to the injuries on the same night.
21. As observed above, except PW-5, there are no other eye witnesses to the accident. PW-1 though is the complainant and brother-in-law of the deceased, but, he has made it clear that he was not an eye witness to the accident and after knowing about the occurrence of the accident, he rushed to the spot and shifted his injured brother-in-law to the hospital. Though he has stated that he came to know that accident has caused at the Crl.A.No.1074/2017 15 fault of the accused, but, he has not given any more details as to who gave such information to him and what is the basis for he believing the said information said to have been given to him.
On the other hand, in his cross-examination, he has stated that he does not know as to what was written in his complaint at Ex.P-1. He has also stated that he does not even know whether he has put his signature to the scene of offence panchanama. Thus, the evidence of PW-1 in no manner supports the case of the prosecution in proving the alleged guilt against the accused.
22. The evidence of PW-2 is also not favourable to the case of the prosecution because the witness has specifically stated that he does not know at whose fault, the accident has occurred. Thus, the evidence of PW-2 Crl.A.No.1074/2017 16 would only go to show that he shifted the injured to the hospital and nothing beyond it.
23. PW-3 though is the wife of deceased Karigowda, but, admittedly her evidence is also a hearsay based on hearsay information. It is through her brother i.e., PW-1, she came to know about the accident, which brother was also not a direct witness to the accident, but, he too was a hearsay witness about the incident. Even according to PW-3, when she saw her injured husband, he was not in conscious, as such, she could not even gather any information from the injured. Though she has stated that she came to know that accused was riding the offending vehicle, but, that is also hearsay. However, PW-5 the injured himself has stated that accused was riding the offending vehicle which is not disputed. Therefore, even though it is believed that accused was riding the offending vehicle, but, the evidence of PW-3 in no way helps in Crl.A.No.1074/2017 17 establishing that such a riding of the motorcycle by the accused was in any manner rash and negligent.
24. As already observed above, PW-5 is the only eye witness to the alleged accident. However, he has given a clean chit to the accused stating that the rider of the alleged offending vehicle was riding it slowly and cautiously, however, the rider of the Kinetic Honda motorcycle coming from the opposite direction came to his extreme right side and dashed to the motorcycle upon which he was travelling as a pillion rider. Thus, he has attributed the entire negligence on the part of the deceased who was riding Kinetic Honda motorcycle that was coming from the opposite direction. He has also stated that as noticed by him, the rider of the Kinetic Honda motorcycle, who is deceased Karigowda, had consumed liquor as could be smelt by him in the spot. Crl.A.No.1074/2017 18
25. The port mortem report shows that the dissection of the abdomen part of the body revealed that stomach was containing partially digested food with alcohol smell, as such, the doctor has collected the viscera and the same was sent for regional Forensic Science Laboratory for its chemical examination. The said Chemical Examiner's report was marked as Ex.P-10 with consent and it shows that the stomach and its contents, portion of small intestine, portion of liver and kidney and the blood sample that were examined by them responded for the presence of traces of alcohol. It is based on his personal examination during the autopsy on the dead body and Forensic Science Laboratory report, the doctor has opined that death of the deceased was due to coma as a result of head injury with acute alcoholic intoxication.
Thus, the evidence of PW-5, the sole eye witness, that the accident was not at the fault of accused, but, it Crl.A.No.1074/2017 19 was at the fault of the deceased Karigowda, who had consumed liquor at the time of the accident stand corroborated by the post mortem report and Forensic Science Laboratory report.
26. Admittedly, none of the witnesses, except the author of Ex.P-13, have stated anything about drawing a sketch as per Ex.P-13 in the spot. The said document has not been shown to any of the prosecution witnesses and ascertained its correctness. That being the case, when PW-5, the sole eye witness, has stated the manner of occurrence of accident and stated that the alleged offending vehicle of the accused was on the left side and it was the motorcycle of the deceased coming from the opposite direction which came to its right side and dashed to the vehicle, the same would go to show that the depiction shown in Ex.P-13 is incorrect. The trial Court appreciating these facts, has disbelieved Ex.P-13 - the sketch.
Crl.A.No.1074/201720
27. Therefore, the argument of learned High Court Government Pleader that the sketch of scene of offence at Ex.P-13 establishes that the accident in question was occurred solely due to the rash and negligent riding his motorcycle by the accused cannot be accepted. Consequently, I do not find any reason in interfering in the judgment of acquittal pronounced by the trial Court.
Accordingly, I proceed to pass the following order:
ORDER The Appeal stands dismissed as devoid of merits. The judgment of acquittal passed by the learned II Civil Judge and J.M.F.C., Mysuru, in C.C.No.8/2011, dated 11.04.2017, acquitting the respondent for the offences punishable under Sections 279, 338 and 304-A of IPC, is confirmed.Crl.A.No.1074/2017
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The Registry is directed to transmit a copy of this judgment to the trial Court along with lower Court records without delay.
Considering the effort put by the learned counsel for the respondent from the panel of High Court Legal Services Committee, Bengaluru, it is recommended to the Committee to consider the remuneration/ honorarium payable to the learned counsel for the respondent at `4,000/-.
Sd/-
JUDGE bk/-