Karnataka High Court

State Of Karnataka vs Veera Raghavan S/O Subramaniyan on 16 September, 2021

Author: Rajendra Badamikar

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

       DATED THIS THE 16TH DAY OF SEPTEMBER, 2021

                        BEFORE

       THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

             CRIMINAL APPEAL NO.100181/2015

BETWEEN:

STATE OF KARNATAKA
REPRESENTED BY THE POLICE SUB-INSPECTOR,
MUDRESHWAR POLICE STATION,
THROUGH THE ADDL.STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE
HIGH COURT OF KARNATAKA, DHARWAD BENCH
                                              ...APPELLANT
(BY SRI.RAMESH B.CHIGARI, HCGP)

AND:

VEERA RAGHAVAN S/O SUBRAMANIYAN
AGE : 32 YEARS
R/O: 8-A, PULIYAN KOTTAYIYEN STREE,
TALAINAYAR VEDAMILAYAM
T.K.PATTANAM, TAMILNADU
                                          ...RESPONDENT
(BY MS.JOSHNA P. DHANAVE & SRI.R.H.ANGADI, ADVS.)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
& (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED
25.02.2014 PASSED IN C.C. NO.253/2013 BY THE PRINCIPAL
CIVIL JUDGE AND J.M.F.C., BHATKAL AND TO SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 25.02.2014
PASSED IN C.C. NO.253/2013 BY THE CIVIL JUDGE AND
J.M.F.C., BHATKAL AND TO CONVICT THE RESPONDENT/
ACCUSED FOR THE OFFENCES PUNISHABLE U/SEC.279 AND
304(A) OF I.P.C.
                                     2




     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 08.09.2021 COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                             JUDGMENT

The State has filed this criminal appeal challenging

the judgment of acquittal passed by the Principal Civil

Judge & JMFC, Bhatkal in C.C.No.253/2013 dated

25.02.2014 and prayed for convicting the

respondent/accused.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the trial court.

3. The brief facts leading to the case are that, on

05.11.2012 at about 7.00 p.m. at Mavinakatte, Bengre-2

village, Murdeshwar, Bhatkal on N.H.17, the accused being

the driver of Tanker lorry bearing No.KA-01/C-9472 drove

it from Bhatkal to Honnavar in a rash and negligent

manner, endangering to human life and lost control over

the vehicle and dashed against the motorcycle bearing

No.KA-13/J-3286 driven by one Venkataramana Nagappa

Naik. Due to which, the said Venkataramana suffered fatal

injuries and succumbed because of the injuries in the

hospital while undergoing treatment on 11.11.2012. In this

regard, the complainant has lodged a complaint and FIR

came to be registered. The investigating officer after

investigation submitted the charge sheet against the

accused for the offences punishable under Sections 279

and 304-A of IPC. After submission of the charge sheet, as

there are sufficient grounds to proceed against the

accused, the learned Magistrate taken cognizance of the

said offences and he has secured the presence of the

accused. The accused appeared through his counsel and

enlarged on bail. The accused has denied the accusation

made against him.

4. To prove the guilt of the accused, the

prosecution examined 11 witnesses as P.Ws.1 to 11 and

placed reliance on 21 documents as Exs.P1 to P21. After

conclusion of the evidence of the prosecution, the

statement of the accused under Section 313 of Cr.P.C. was

recorded to enable the accused to explain the incriminating

evidence appearing against him in the case of the

prosecution. The case of the accused is of total denial.

After hearing the arguments and appreciating the oral and

documentary evidence placed on record, the learned

Magistrate has acquitted the accused for the charges

leveled against him by setting him free. Being aggrieved

by this judgment of acquittal, the State has filed this

appeal.

5. Heard the arguments advanced by the learned

High Court Government Pleader for the appellant and the

learned counsel for the respondent/accused. Perused the

trial court records.

6. Learned HCGP would contend that the

judgment of acquittal passed by the trial court is contrary

to law, facts and evidence on record and it is also

arbitrary. He would further contend that P.Ws.2 and 5 are

the eye-witnesses and both of them have supported the

case of the prosecution, but their evidence is not properly

appreciated. That the accident and involvement of the

vehicles is undisputed and eye-witnesses have also

identified the vehicle and the principles of res ipsa loquitor

is directly applicable to the facts and circumstances of the

case in hand and the trial court has erred in acquitting the

accused. Hence, he would contend that judgment of

acquittal passed by the trial court suffers from illegality

and prayed for allowing the appeal by convicting the

respondent/accused.

7. Per contra, learned counsel for the

respondent/accused has contended that the trial court has

appreciated the oral and documentary evidence in detail

and it has come to the conclusion that the prosecution has

failed to bring home the guilt of the accused beyond all

reasonable doubt. Hence, he would contend that the trial

court is justified in acquitting the respondent/accused. He

would further contend that the trial court has rightly

observed that there is no damage caused to the rear side

of the bike, when there is allegation that Tanker lorry hit

the rear side of the bike. Hence, he would contend that the

trial court is justified in acquitting the accused. Hence, he

would seek for dismissal of the appeal.

8. Having heard the arguments and perusing the

records, now the following point would arise for my

consideration:

Whether the judgment of the trial court

is erroneous, capricious and arbitrary so as to

call for any interference by this court?

9. It is the case of the prosecution that on

05.11.2012, around 7.00 p.m., the Tanker lorry bearing

No.KA-01/C-9472 hit the bike bearing No.KA-13/J-3286 on

Bhatkal-Honnavar road from back side resulting in the

accident and death of Venkatramana Naik. The prosecution

is relying on the evidence of 11 witnesses. The

complainant is examined as P.W.2 while another eye-

witness is examined as P.W.5. P.Ws.2 and 5 are the

material witnesses.

10. P.W.2 in his evidence has deposed in

accordance with the complaint and he claims that he was

proceeding from Murdeshwar to Shirali on his bike and the

Tanker lorry came from Bhatkal and proceeding to

Honnavar on National Highway and knocked the bike from

behind, as a result, Venkataramana sustained head injury.

He has also claimed that he was present at the time of

drawing mahazar sketch. It is the specific contention of the

prosecution that the tanker hit the bike on rear side.

11. P.W.5 is another eye-witness and he deposed

that the Tanker lorry after overtaking his rickshaw drove in

a rash and negligent manner and knocked the bike from

behind. The evidence of P.Ws.2 and 5 is very specific that

Tanker lorry hit the bike on the rear side. P.W.7 is the

owner of the bike and his evidence discloses that, right

side rear view mirror and headlight fiber cover was

damaged. This is again corroborated by Ex.P14, which is

MV report and it is evident that no damages were found on

the Tanker lorry, but the bike has suffered damages to

rear view mirror and headlight fiber cover. When there is

specific allegation that Tanker lorry hit the bike from the

back side, there should have been some damage to the

rear portion, but that was not forthcoming in the instant

case.

12. P.W.1 is the inquest mahazar witness and his

evidence has no relevancy. P.Ws.3 and 4 are spot mahazar

witnesses, but both these witnesses have turned hostile.

P.W.6 is the wife of the deceased and she is not an eye-

witness. P.Ws.9 and 11 are the investigating officers while

P.W.10 is the PA holder of the owner of the Tanker lorry.

Hence, it is evident that, entire case of the prosecution is

based on the evidence of P.Ws.2 and 5. But the MV report

as well as evidence of P.W.7 clearly discloses that there

was no damage to the bike on the rear side. If at all, the

Tanker lorry dashed the bike from the back side, there

should have been some impact on the rear side of the

bike, but that is not forthcoming.

13. Very interestingly, P.W.2 in his cross-

examination has stated that front wheel of the Tanker has

dashed to the bike. He has also deposed that there was no

damage to the mudguard of the Tanker lorry and his

evidence is very specific that the bike was beneath the

Tanker lorry. He has specifically stated that after the

impact, the bike went beneath the Tanker lorry and in that

event, there should have been more damage to the bike.

However, during further cross-examination, P.W.2 has

changed his version stating that while the driver of the

Tanker lorry tried to cut the vehicle and in the said

process, it hit the side steering, which has resulted in the

accident. This is a new story invented. This part of the

cross-examination of P.W.2 reads as under:

"UÁå¸À mÁåAPÀgÀ£À ªÀÄÄA¢£À mÁAiÀÄgÀ ¨ÉÊPÀUÉ rQÌ

ºÉÆqÉ¢gÀÄvÀÛzÉ. mÁåAPÀgÀ ªÀÄqÀUÁqÀðUÉ qÁåªÉÄÃd DVgÀ°®è. CzÀgÀ

CrAiÀÄ°è ¹QÌvÀÄÛ. ªÀÄqÀUÁqÀðUÉ ªÀÄvÀÄÛ ¨ÉÊPÀUÉ vÀÄA¨Á JvÀÛgÀ EvÀÄÛ. rQÌ

ºÉÆqÉzÀ PÀÆqÀ¯ÉÃ ¨ÉÊPÀ mÁåAPÀgÀ CrUÉ ºÉÆÃV ©¢ÝvÀÄÛ. mÁåAPÀgÀ PÀl

ªÀiÁqÀÄªÁUÀ ¨ÉÊPÀ ¸ÉÖÃjAUï ¸ÉÊqÀUÉ mÁåAPÀgÀ ºÉÆr¢vÀÄÛ."

14. This story is completely contradictory to the

case of the prosecution. According to the case of the

prosecution, the Tanker hit the rear side of the bike, but

during the cross-examination, P.W.2 tried to improvise his

version regarding Tanker hit the steering of the bike. Very

interestingly, P.W.5 who also claims to be an eye-witness

in his cross-examination claimed that there was damage to

the rear portion of the bike and damage to the front

portion of the Tanker, but MV report completely falsifies

this stand. Hence, it is evident that P.W.5 is not an eye-

witness and his evidence is not trustworthy.

15. P.W.2 has changed his version and his