Karnataka High Court

State Of Karnataka vs Ningappa B. Hndasageri on 15 December, 2023

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                                                          NC: 2023:KHC:45764
                                                       CRL.A No. 868 of 2016




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 15TH DAY OF DECEMBER, 2023

                                           BEFORE
                            THE HON'BLE MR JUSTICE G BASAVARAJA
                              CRIMINAL APPEAL NO. 868 OF 2016
                   BETWEEN:

                   STATE OF KARNATAKA,
                   REPRESENTED BY C.P.I.,
                   KUNDAPUR CIRCLE,
                   UDUPI DISTRICT - 576 201,
                   REPRESENTED BY STATE PUBLIC PROSECUTOR,
                   HIGH COURT BUILDING, BENGALURU.
                                                                  ...APPELLANT
                   (BY SRI. CHANNAPPA ERAPPA, HCGP)

                   AND:

                   NINGAPPA B. HINDASAGERI,
                   S/O. BASAVANNAPPA,
                   AGED 39 YEARS,
Digitally signed   R/O. NEAR JINNUR MASZID,
by SANDHYA S
Location: High     KURUBARA ONI, KALAGATAGI TALUK,
Court of           DHARAWAD DISTRICT - 581 204.
Karnataka
                                                                 ...RESPONDENT
                   (BY SRI. SHIVARAJ PATIL, AVOCATE (ABSENT) )

                          THIS CRL.A IS FILED U/S.378(1) AND (3) OF CR.P.C
                   PRAYING TO: A) GRANT LEAVE TO APPEAL AGAINST THE
                   JUDGMENT AND ORDER OF ACQUITTAL DATED 11.01.2016 IN
                   C.C.NO.346/2012 PASSED BY THE ADDL. CIVIL JUDGE AND
                   J.M.F.C., KUNDAPUR, FOR THE OFFENCES P/U/S 279 AND
                   304(A) OF I.P.C.
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                                                NC: 2023:KHC:45764
                                             CRL.A No. 868 of 2016




        THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                             JUDGMENT

The State has preferred this appeal against the judgment

of acquittal passed by the Additional Civil Judge and JMFC,

Kundapur in C.C.No.346/2012 dated 11.01.2016.

2. The rank of the parties in this appeal are referred in

the same rank as referred by the Trial court.

3. Brief facts of the prosecution are as under:

On 28.11.2011 at 12.00 noon in front of APMC gate

situated near Santhe market of Kasaba village of Kundapura

Taluk, on the mud road, the accused being the driver of the

lorry, bearing registration No. KA 25 B 6828 drove the same in

a rash and negligent manner from Sangam to Kundapura and

drove the same towards the eastern side of the road

negligently. As a result, the lorry fell over on two pedestrians

who were walking on the mud road namely Leelavathi and

Costa D'Souza and over the car bearing Reg. No. 20 N 7931,

which was parked near Sangam, which was owned by CW-5

due to which both Leelavathi and Costa D'Souza died at the

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spot. Thus the accused has committed an offence under

Sections 279, 304(A) of the Indian Penal Code, 1860 (the 'IPC'

for short). After filing the charge sheet, the trial Court has

taken cognizance against the accused for alleged commission of

offences and case was registered in C.C.No.346/2012.

Summons were issued to the accused. In response to the

summons, the accused appeared before the trial Court and

enlarged on bail. Substance of plea was recorded, the accused

pleaded not guilty and claimed to be tried. To prove the guilt of

the accused, the prosecution has examined 11 witnesses as

PW-1 to PW-11 and 19 documents were marked as Ex-P1 to

P19. On closure of prosecutions and evidence, statement

under Section 313 of Cr.P.C. was recorded. Accused has totally

denied the evidence of prosecution witnesses, but he has not

chosen to lead any defence on his behalf. On hearing the

arguments, the trial Court has acquitted the accused. Being

aggrieved by the impugned judgment of acquittal, State has

preferred this appeal.

4. Learned HCGP, Sri. Channappa Erappa has submitted

his arguments that impugned judgment and order of acquittal

passed by the trial Court is opposed to law, facts and

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probability of the case and as such, the same is illegal and

liable to be set aside. That the reasons assigned by the trial

Court to acquit the accused/respondent are not proper and not

considered the evidence adduced by the prosecution and

materials connected against the accused. The trial Court has

not properly appreciated the evidence of PW-1 to PW-11 in its

proper perspective. The trial Court has also not appreciated the

evidence of PWs-1 to 3 and 7 and contents of Ex-P13 - IMV

report and Ex-P8 - wound certificate. On all these grounds he

sought for allow this appeal.

5. Learned counsel appearing for the respondent is not

present. Hence, arguments on behalf of respondent side is

taken as nil.

6. Having heard the arguments of learned HCGP and

on perusal of records, the following points would arise for my

consideration:

1. Whether the appellant has made out a

grounds to interfere with the impugned

judgment of acquittal ?

2. What order?

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My answer to the above points are as under:

     Point No.1 :      Negative;

     Point No.2 :      As per final order.

7. I have carefully examined the materials placed

before this Court. It is the case of the prosecution that On

28.11.2011 at 12.00 noon in front of APMC gate situated near

Santhe market of Kasaba village of Kundapura Taluk, on the

mud road, the accused being the driver of the lorry, bearing

registration No. KA 25 B 6828 drove the same in a rash and

negligent manner from Sangam to Kundapura and drove the

same towards the eastern side of the road negligently. As a

result, the lorry fell over on two pedestrians who were walking

on the mud road namely Leelavathi and Costa D'Souza and

over the car bearing Reg. No. 20 N 7931, which was parked

near Sangam, which was owned by CW-5 due to which both

Leelavathi and Costa D'Souza died at the spot. Thus the

accused has committed an offence under Sections 279, 304(A)

of the Indian Penal Code, 1860 (the 'IPC' for short). To prove

the guilt of the accused, 11 witnesses were examined as PW-1

to 11, 19 documents were marked as EX-P1 to P19.

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8. On careful examination of the evidence placed by

the prosecution, it can be seen that PW-1 - Ashok Poojary is

the complainant, PW-3 -Radha, who is the eye witness to the

incident. PW-4 - Shekar Shetty is not a eye witness to the

incident. PW-5 - Suresh Naik is attested in the Spot Mahazar -

Ex-P2(b). PW-6 - Vivian D'souza is attested in the inquest

panchanama - Ex-P10. PW-7 - Raghavendra is a hearsay

witness, PW-8 -Veerabhadrayya has deposed in his evidence

that lorry bearing No.KA 25 B 6828 belongs to the institution,

PW-9 - Maruti Nayak has deposed as to the IMV report - Ex-

P13. PW-10 - Madan A. Gaonkar is the Investigating Officer

and PW-11 are deposed as the respective investigation. Out of

these witnesses, one of the eye witness PW-3 - Radha has not

supported the case of the prosecution and she was cross

examined by the learned Assistant Public Prosecutor. During

her cross examination also she has categorically denied the

statement said to have been recorded by the Investigating

Office under Section 161 of the Cr.P.C., which is marked as Ex-

P4. The material witness PW-2 has clearly admitted in her

cross examination that she donot know how the accident was

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occurred. In para No.23 to 27 trial Court has observed as

under:

"23. In the cross examination he has admitted that as per Ex.P1 the lorry had turned towards right side in order to avoid the car which was coming from the opposite direction. He has also admitted that in ex.P1 there is mention about two dead bodies fallen behind the lorry. He has also admitted that there is no mention in the complaint that the lorry had dashed to those two ladies. He has also admitted that as the lorry turtled on them they have died.

24. As discussed above from the evidence of PW1 and 2 who are said to be the eye witnesses it goes to show that they have not witnessed the accident. The complaint which is marked as ex.P1 and the evidence of the complainant-PW2 goes to show that the lorry turned on seeing a car coming from its opposite direction, as the lorry was loaded it got turtled and fell on two ladies and one car which was parked, but the evidence of PW1 who is the eye witness goes to show that the lorry dashed to the ladies and then turtled on the car which was parked on the side of the road. Again the evidence of the I.O also goes to show that the lorry had not dashed to the deceased ladies but the driver turned the lorry so as to avoid the car which was coming from the opposite direction and thereby turtled due to which two women were injured and they succumbed to death and the car was damaged. The entire evidence of the prosecution side both oral and documentary goes to show that the driver of the lorry in the process of avoiding a car which was coming from the opposite direction took the lorry to the right side and as the lorry was loaded it fell upside down. This cannot be termed as being negligent as projected by the prosecution.

25. The evidence of PW1 and 2 is not sufficient to hold that the accused had driven the lorry in a rash or negligent manner. Moreover the evidence of PW1 and 2 in the cross examination goes to show that they are not the eye witnesses to the accident that had taken place on the said date. Rest of the evidence of the official witnesses and the evidence of mahazar witness is also not helpful to the case of the prosecution as the very accident is not proved to be due to the negligent or rashness of the accused in driving the lorry.

NC: 2023:KHC:45764

26. The material witnesses except deposing that the accused was driving the lorry in a high speed have not deposed any thing else as to the speed at which he was driving the vehicle. Mere mentioning the word high speed would not be sufficient in criminal cases of this type. What was the approximate speed per hour and what was the width and nature of the road are also relevant. The word speed is a relative term. The important factor to be established is with regard to the rashness or negligence in causing the alleged accident. None of the witnesses have spoken any thing about the speed or rashness or negligent act of the offending vehicle in question.

27. On assessment of the evidence on record this court is of the opinion that there is no acceptable material with regard to the rashness or negligence attributed to the driver. For the purpose of criminal law, there are degrees of negligence and a very high degree of negligence is required to be proved before a charge under section 279 and 304(A) of IPC is established. In order to substantiate the charge of rash or negligent driving investigation must have been conducted on scientific lines. Hence relying on the materials available on record it could be said without any hesitation that the prosecution has failed to prove the guilt of the accused to the hit. Hence benefit of doubt shall be extended in favor of the accused. Hence I answer the above points in the Negative."

9. On re-examination / reconsideration and

re-appreciation of the entire evidence placed before this Court

and also keeping in mind of the aforesaid decisions, I do not

find any illegality / infirmities in the impugned judgment of

acquittal. Hence, considering the facts and circumstances of

this case, I answer point No.1 in negative and point No.2 for

the aforesaid reasons and discussions, I proceed to pass the

following: