Karnataka High Court
The State By Circle Inspector Of Police, vs Gilbart Pinto on 12 September, 2019
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12th DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL APPEAL No.1017/2019
BETWEEN:
The State by Circle Inspector of Police
Karkala Circle, Karkala,
Udupi District,
Represented by State Public Prosecutor,
High Court Building,
Bengaluru-560 001.
...Appellant
(By Sri M.Divakar Maddur, HCGP)
AND:
Gilbart Pinto S/o Anthony Pinto
Aged about 61 years
R/o Nithyadhar Kripa
Katapady, Manipur Village,
Udupi Taluk, Udupi District-576 101.
...Respondent
This Criminal Appeal is filed under Section 378(1)
and (3) of Cr.P.C praying to grant leave to file an appeal
against the judgment and order dated 24.12.2018 passed
by the II Additional Civil Judge and J.M.F.C., Karkala in
C.C.No.1013/2015, acquitting the accused/respondent, for
the offences punishable under Sections 279 and 304(A) of
Indian Penal Code.
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This Criminal Appeal coming on for Orders, this day
the Court delivered the following:-
JUDGMENT
Though this case is listed for hearing on IA No.1/2019, with the consent of the learned High Court Government Pleader, the same is taken up for final disposal.
While hearing the learned High Court Government Pleader it is felt to this Court that issuance of notice to respondent/accused is not necessary and the same is dispensed with.
2. The State is before this Court challenging the judgment and order of acquittal passed by II Additional Civil Judge and J.M.F.C., Karkala, in C.C.No.1013/2015 dated 24.12.2018.
3. The case of the prosecution in brief is that on 17.6.2015 at about 1.45 p.m. a KSRTC bus bearing Registration No.KA.20 D-2798 was parked and at that time -3- a motorcyclist came on a Hero Honda Pleasure motorcycle bearing registration No.KA.20 V-8800 and dashed against the said bus on its right side and as a result of the same he fell down on the right side of the road, at that time accused being the driver of Force Traveller bearing registration No.KA.20 D-424 drove the same rashly and negligently so as to endanger the human life and ran over the body of the rider of the motorcycle, due to which the rider of the motorcycle sustained grievous injuries and succumbed to the injuries on the spot. On the basis of the complaint a case has been registered in Crime No.109/2015. Thereafter, after investigation the charge sheet was laid against the accused.
4. The learned Magistrate took the cognizance, secured the presence of the accused and after following formalities under Section 207 of Cr.P.C. and after hearing the prosecution side and accused side the plea was recorded. Accused pleaded not guilty, he claims to be tried and as such the trial was fixed.
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5. To prove the case of the prosecution, it has examined PWs.1 to 9, got marked Exs.P1 to P22. Thereafter, the statement of the accused was recorded and he has not examined any witnesses. However, he has got marked Exs.D1 to D3 in the 313 statement. After hearing the learned Assistant Public Prosecutor and the learned counsel for the accused, the impugned order of acquittal came to be passed. Challenging the legality and correctness of the same, the State is before this Court.
6. It is the submission of the learned High Court Government Pleader that the trial Court without properly appreciating the evidence and material placed on record, has come to a wrong and erroneous conclusion and has acquitted the accused which resulted in miscarriage of justice. It is his further submission that PWs.1 to 3 are the eyewitnesses to the alleged incident and they have supported the case of the prosecution and categorically have deposed before the Court about the rash and negligent act of the driver of the Force Traveller. He further -5- submitted that the accused ought to have taken the reasonable care to avoid the accident. This point has not been properly considered and appreciated by the trial Court. He further submitted that the trial Court after applying the principles of res ipsa loquitur ought to have convicted the accused. On these grounds he prayed to allow the appeal and to set aside the impugned order and to convict the accused.
7. I have carefully and cautiously gone through the submissions made by the learned High Court Government Pleader and he has made available the evidence of the prosecution witnesses as well as the documents which have been got exhibited.
8. In order to prove the case of the prosecution, it has got examined PW1. He is the complainant and an eyewitness to the alleged incident. He has partly supported the case of the prosecution and he has been treated as hostile. In the cross-examination of this witness he has -6- deposed that the alleged incident has taken place due to rash and negligent act of the accused.
PWs.2 and 3 are the eyewitnesses to the alleged incident. They have also deposed about the alleged incident and in their evidence they have deposed that the bus was standing in the middle of the road and the motorcyclist came and hit to the back side of the said bus and when he fell down on the right side of the bus, then driver of the Force Traveller vehicle came from behind and ran over his body and he sustained injuries and as a result of the same he died on the spot. During the course of cross- examination they have admitted that within a short span of time of boarding of the bus, the motorcyclist came and dashed against the right backside of the bus and they have also admitted Exs.D1 to D3, the photographs of the accident spot. Even as could be seen from the evidence of PW2, in his cross examination he has deposed that some one informed about the incident, then he came and shifted the deceased to KMC Hospital. He has further submitted -7- that at the time of the alleged incident he was inside the house and there is no bus stop where the bus was stopped. In the cross-examination of PW3 he has deposed that only after he heard the loud noise, he came to know about the accident. He has also admitted that the bus was parked in the middle of the road and there two passengers boarded the bus. He has further deposed that the motorcyclist was not wearing the helmet at the time of the accident.
PW4 is the pancha to spot mahazar and seizure mahazar.
PW5 is the Motor Vehicle Inspector, he inspected the vehicles involved in the accident and issued the report as per Ex.P17.
PW6 is the owner of the offending vehicle and he has also deposed that as on the date of the accident the accused was a driver of the said vehicle.
PW7 is the doctor who conducted autopsy over the body of the deceased and has issued the post mortem report as per Ex.P20.
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PW8 is the Head Constable who registered the case on the basis of the complaint Ex.P1 and issued the FIR as per Ex.P21. PW9 is the Investigating Officer who investigated the case and filed the charge sheet against the accused.
9. On close scrutiny of the entire evidence of the prosecution it is the specific case of the prosecution that on the alleged date of incident the KSRTC bus was parked in the middle of the road and a motorcyclist riding the motorcycle came and dashed against the right back side of the bus and he fell down on the right side of the road and at that point of time accused being the driver of the Force Traveller vehicle drove the same and ran over on the body of the deceased and as a result of the same he sustained grievous injuries and subsequently he succumbed to the injuries. The manner in which the accident has taken place itself clearly goes to show that it is only because of the wrong parking of the bus in the middle of the road, it made the rider of the motorcycle to hit on the backside of the -9- said bus and as a result of the same he fell down on the right side and at that span of moment the driver of the Force Traveller vehicle i.e. accused who was driving the vehicle ran over the body of the deceased.
10. If a person suddenly fall on the road by hitting to the bus, then under such circumstances any prudent man who was driving the vehicle will not accept that the motorcyclist who is going ahead may hit to the bus and he may fall down on the right side and he may come under the vehicle which was driven by him. Therefore, it will not be possible to hold the driver of the said vehicle as negligent. Though PWs.1 to 3 have supported the case of the prosecution, their evidence also does not repose the confidence of this Court to come to the conclusion that the accused was rash and negligent at the time of the alleged accident. Even prosecution has also not made available what was the speed fixed on the said road and whether at that time the accused was driving beyond or over speed which has been prescribed on the said road. Even the
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witnesses have also deposed before the Court during the course of cross-examination that the accident occurred within a short span of time and dashed against the bus and even the photographs Exs.D1 to D3 and the evidence produced goes to show that the bus was parked in the middle of the road and at that time the motorcyclist hit on the backside and he fell down and the alleged accident has taken place. The trial Court after considering the facts and relying on the decision of the Hon'ble Apex Court in the case of Mahadeo Hari Lokre Vs. the State of Maharashtra, reported in (1972) 4 SCC 758 has come to a right conclusion and there are no good grounds to interfere with the judgment of the trial Court. The judgment of the trial Court deserves to be confirmed.
11. Accordingly, the appeal is devoid of merits and the same is liable to be dismissed and accordingly it is dismissed.
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In view of dismissal of the appeal, IA No.1/2019 does not survive for consideration and the same is also dismissed.
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JUDGE *AP/-