State Of Karnataka By vs S Puttaswamy
2021 Latest Caselaw 6861 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 20TH DAY OF DECEMBER, 2021

                           BEFORE:

       THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

           CRIMINAL APPEAL No.866 OF 2011

BETWEEN:

STATE OF KARNATAKA BY
TALAKADU POLICE STATION.                      ...   APPELLANT

[BY SMT. LEENA C. SHIVAPURMATH, HCGP]


AND:

S. PUTTASWAMY
S/O SHIVAMALLU
AGED ABOUT 25 YEARS
R/O. KUNTOORU VILLAGE
KOLLEGALA TALUK
CHAMARAJANAGARA DISTRICT.                 ...     RESPONDENT

[BY SRI. B. KESHAVAMURTHY, ADVOCATE]

                            ***

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) &
(3) OF CR.P.C, PRAYING TO GRANT LEAVE TO APPEAL AGAINST
THE JUDGMENT DATED 02.11.2009 IN CRIMINAL APPEAL
NO.83/2007 PASSED BY THE PRESIDING OFFICER, FAST TRACK
COURT-V, MYSORE BY ALLOWING THIS CRIMINAL APPEAL AND
CONFIRM THE ORDER DATED 01.03.2007 PASSED BY THE CIVIL
JUDGE (JR.DN) AND JMFC, T.NARASIPURA IN C.C. NO.360/2005-
CONVICTING THE RESPONDENT/ACCUSED FOR OFFENCE P/U/SEC.
279 AND 304(A) OF IPC.

     THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                      JUDGMENT

This appeal is by the State, preferred against the

impugned Judgment and Order of acquittal dated

02.11.2009 passed by the Fast Track Court-V at Mysuru,

in Crl.A. No.83/2007, whereby the Fast Track Court

allowed the appeal preferred by the accused/respondent

and set aside the Judgment and Order dated 01.03.2007

in C.C. No.360/2005 passed by the Court of Civil Judge

and JMFC at T.Narasipura and acquitted him of offence

punishable under Sections 279 and 304-A of IPC.

2. Heard the learned High Court Government

Pleader and perused the material on record.

3. The case of the prosecution is that on

22.06.2005 at about 4.30 p.m. at T.Narasipura-Kaliyuru

Main Road near Tadimalangi cross, the accused being the

driver of a Tractor and Trailer bearing reg. No.KA-10/T-

1103 and KA-10/T-1104, drove the same in a rash and

negligent manner endangering the human life and hit

against a bicycle, on account of which, the rider of the

bicycle by name Mallaraju sustained grievous injuries

and succumbed to the said injuries while undergoing

treatment at K.R. Hospital, Mysuru.

4. The trial Court acquitted the accused of

offence punishable under Section 134(a) and (b) r/w 187

of the Indian Motor Vehicles Act, 1988 and convicted him

for offence punishable under Sections 279 and 304-A of

IPC.

5. The accused preferred Crl.A. No.83/2007 on

the file of the Fast Track Court-V at Mysuru, against the

conviction and sentence passed against him. The said

appeal was allowed vide Judgment and Order dated

02.11.2009 and the impugned Judgment passed by the

trial Court convicting the accused for offence punishable

under Sections 279 and 304-A of IPC was set aside.

6. The learned High Court Government Pleader

appearing for the State would contend that the trial

Court having appreciated the entire evidence on record

has rightly come to the conclusion that the accident was

on account of rash and negligent driving of the tractor by

the accused. The trial Court has taken into consideration

the evidence of P.W.5-eyewitness as well as the spot-

mahazar Ex.P6. She contends that the appellate Court

without properly appreciating the said evidence on

record and the reasons assigned by the learned

Magistrate, has erroneously acquitted the accused. It is

her contention that the accused has not disputed that he

was not driving the tractor at the time of incident and in

view of the evidence of P.W.5, the prosecution has

established the accusation made against him.

7. It is further contended that the accused has

not given any explanation for the cause of accident and

the spot mahazar-Ex.P6 goes to show that the accident

has occurred on the right side of the road, hence, it is

proved that the accused has gone to the extreme right

side of the road and caused the accident.

8. Before the trial Court, the prosecution has got

examined 11 witnesses and got marked Exs.P1 to 11.

The trial Court has observed that P.W.5 has identified the

accused as the driver of the tractor at the time of

accident and he has deposed that the tractor was driven

in a rash and negligent manner and therefore relying on

the evidence of P.W.5 as well as the spot-mahazar at

Ex.P6 and observing that the sketch prepared by the

Investigation Officer also tallies with Ex.P6-spot

mahazar, has proceeded to convict the accused for the

offence punishable under Sections 279 and 304-A of IPC.

9. The learned Fast Track Judge has taken into

consideration that the eyewitnesses have turned hostile

and the evidence of P.W.1 is vague and the prosecution

has failed to examine the Investigation Officer. Hence,

the appellate Court has held that there is no iota of

evidence to consider rash and negligent driving of the

vehicle involved in the accident. It is observed that the

trial Court has relied on the sketch of the spot which was

not exhibited. Hence, the appellate Court proceeded to

set aside the impugned Judgment passed by the trial

Court and acquitted the accused.

10. P.W.1 is the first informant. He is the father

of the deceased. He is not an eyewitness. According to

him, he was informed by one Umesh i.e., P.W.5, about

the accident. The prosecution has got examined P.Ws.2

to 5 as the eyewitnesses to the accident in question.

P.Ws.2 to 4 have completely denied the prosecution

case. According to P.W.5, when deceased Mallaraju was

returning from the school on a bicycle, the tractor came

from Kaliyuru side in a rash and negligent manner and

hit against the bicycle. On account of the said accident,

Mallaraju sustained grievous injuries. He was shifted to

the hospital, wherein he succumbed to the injuries.

PW-5 has been partly treated hostile by the prosecution

with regard to handing over of the bicycle to PW-1.

11. In the cross-examination, P.W.5 has stated

that the tractor was moving towards northern direction

and the school is situated on the left side. He has stated

that at the time of accident, he was also riding a bicycle

and he was about 10 ft. behind the place of occurrence.

He has admitted that since he was behind the tractor, he

was not aware as to what happened in front of the

tractor. He has further stated that when he went to the

spot, there were already 60-65 boys and teachers

present at the spot.

12. From the above evidence of P.W.5, it can be

seen that when he went to the spot, there were already

several persons present including the teachers of the

school. None of them have been cited as witnesses.

When he has admitted that 60-65 boys and teachers

were already present when he reached the spot, a

reasonable doubt arises about he being an eyewitness to

the accident in question. He has also admitted that since

he was behind the tractor, he was not aware as to what

happened in front of the tractor. P.Ws.2 to 4 who are

also eyewitnesses to the accident have not supported the

case of the prosecution. In fact, P.W.3 has stated that

the accident was on account of fault of the rider of the

cycle.

13. The trial Court has relied on Ex.P6 i.e. spot-

mahazar and observed that the same shows that the

tractor went to the extreme wrong side of the road and

further observed that the sketch prepared by the

Investigation Officer also tallies with the spot mahazar-

Ex.P6.

14. From the spot mahazar itself it cannot be said

that the tractor went to the extreme wrong side of the

road and caused the accident. P.W.5 has not at all

stated in his evidence that the tractor went to the

extreme wrong side of the road and caused the accident.

As rightly observed by the appellate Court, the sketch

has not been exhibited and therefore, the trial Court was

not proper in relying on the said sketch. Further, the

spot-mahazar as well as the sketch was prepared by the

Investigation Officer-C.W.21-CPI. The said Investigation

Officer has not been examined. Hence, the reasons

assigned by the appellate Court is plausible.

15. This is an appeal against an order of acquittal.

The view taken by the appellate Court being a plausible

view, no interference is called for. Hence, Criminal

Appeal is dismissed.

Sd/-

JUDGE

Ksm*