The State Of Karnataka vs Thippanna S/O Mallappa Bharadwaj
2022 Latest Caselaw 3905 Kant

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              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

            DATED THIS THE 8TH DAY OF MARCH 2022

                           BEFORE

      THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

              CRIMINAL APPEAL NO.2878 OF 2012

BETWEEN
THE STATE OF KARNATAKA
THROUGH POLICE INSPECTOR ANKOLA,
REPRESENTED BY
ADDITIONAL STATE PUBLIC PROSECUTOR,
HIGH COURT CIRCUIT BENCH, DHARWAD
                                                 ...APPELLANT
(BY SRI. RAMESH CHIGARI, HCGP)

AND
THIPPANNA S/O MALLAPPA BHARADWAJ
AGE: 29 YEARS,
R/O: AGADI, HUBLI.
                                                ...RESPONDENT
(BY SRI. V. P. VADAVI, AMICUS CURIAE)

      THIS CRIMINAL APPEAL IS FILED U/S 378(1) (B) & (3) OF
CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 28.07.2012 PASSED
BY THE JMFC, ANKOLA, IN C.C.NO.428/2008 AND SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL BY ALLOWING THIS APPEAL
AND CONVICT AND SENTENCE THE ACCUSED-RESPONDENT FOR
THE OFFENCE FOR WHICH HE IS CHARGED FOR IN ACCORDANCE
WITH LAW.
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     THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

The first information report was lodged by CW1-PW5

alleging that he is resident of Mumbai and on 15.05.2008 he

had been to Karwar along with his wife-Anita and daughter-

Ishwarya and when he was returning to Dharwad in the car

bearing registration No.KA-25/MC-66 and passing through

Ankola, at about 4.00 p.m., a lorry bearing registration

No.KA-26/6060 driven by its driver in a rash and negligent

manner came and dashed against the car in which they were

traveling. Due to the said impact, the car was damaged and

the complainant, his wife, his daughter and one Smt. Sujata

Raikar sustained injuries. It is further alleged that the said

accident took place on account of rash and negligent driving

of the driver of lorry bearing registration No.KA-26/6060. It is

alleged that after the accident, the lorry driver fled from the

scene and thereafter the injured were shifted to hospital. It

was further alleged that the driver of the car also sustained

injuries and when he was being taken to hospital for

treatment, he succumbed to the injuries sustained by him.

The police registered the FIR against unknown person,

conducted spot panchanama and recorded the statements of

injured witnesses. During the course of investigation, the

petitioner and other injured witnesses identified the driver of

the lorry in the police station and accordingly, charge sheet

came to be filed against him for the offence punishable under

sections 279, 337, 338, 304(A) of IPC. After receipt of charge

sheet, the learned Magistrate took cognizance of the offences

alleged against the accused and issued summons. The learned

Magistrate framed charges against the accused for the alleged

offences. Accused denied all the charges, pleaded not guilty

and claimed to be tried.

2. The prosecution, in order to prove its case,

examined 11 witnesses as PW1 to PW11 and exhibited 14

documents vide Ex.P.1 to Ex.P.14. The accused did not choose

to lead any defence evidence. The Trial court, after recording

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

passed an order of acquittal of the accused for the alleged

offences on the ground that the prosecution has failed to

prove that the accused was driving the offending vehicle at

the time of the accident. Taking exception to the same, the

appellant-state has preferred the appeal.

3. Learned HCGP appearing for the appellant-state

would submit that the evidence of PW5 to PW7 clearly

establish that the accident had taken place due to rash and

negligent driving of the lorry by the respondent-accused and

the witnesses have identified the accused before the police

station and as such, the Trial Court has erred in holding that

the prosecution has failed to prove that the accused was

driving the offending lorry as on the date of the accident.

4. Per contra, the learned Amicus curiae, Sri. V. P.

Vadavi, appearing for respondent-accused would submit that

the prosecution having failed to prove that the accused was

driving the offending lorry as on the date of the accident, the

Trial Court has rightly passed an order of acquittal, acquitting

the accused for the offences alleged against him.

5. I have considered the submissions made by the

learned counsel for the parties.

6. The police have filed charge sheet against the

accused only on the basis of statements of injured witnesses

i.e. PW5 to PW7, wherein they have stated that when they

were summoned to the police station and accused was shown

to them, they have identified him as the driver of the

offending lorry at the time of the accident.

7. Learned Magistrate, has taken into account the

evidence of PW5 to PW7, injured witnesses, wherein they

have stated in their examination in chief that there was a

curve on the road , in which the accident taken place and

contrary to their own evidence, in their cross-examination,

they have deposed that there was no curve on the road on

which the accident has taken place. The learned Magistrate

has also taken into account that no statement of the owner of

the offending lorry was recorded by the police and the

prosecution has not examined the owner of the lorry as a

witness before the learned Magistrate. The prosecution has

not produced any document before the Trial Court to

substantiate its case that the accused was the driver of the

offending lorry at the time of the accident and the accident

took place due to the rash and negligent driving of the

offending lorry by the accused.

8. The charge sheet was filed against the accused on

the identification of the accused by injured witnesses before

the police, but, however the prosecution was required to

prove the same by conducting the test identification parade as

specified under Section 54-A of Cr.P.C., to identify the

accused by the injured witnesses. The prosecution has not

conducted the test identification parade as specified under

Section 54-A of Cr.P.C. The Trial Court, after appreciating the

evidence on record, has rightly passed an order of acquittal,

acquitting the accused for the aforesaid offences. On re-

appreciation of the evidence, I do not find any illegality or

infirmity in the impugned order of acquittal passed by the

learned Magistrate. Accordingly, I proceed to pass the

following:

ORDER

The appeal stands dismissed.

             The    assistance    rendered        by   the   Amicus

      Curiae   in   disposal     of       the   present   appeal   is

appreciated. The fees of the Amicus Curiae is fixed

at Rs.8,000/- and it shall be paid by the State.

In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are dismissed accordingly.

Sd/-

JUDGE

YAN