Karnataka High Court

The State Of Karnataka vs Muhammedkunhi.M on 20 December, 2023

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                                                           NC: 2023:KHC:46528
                                                        CRL.A No. 656 of 2016




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 20TH DAY OF DECEMBER, 2023

                                             BEFORE
                            THE HON'BLE MR JUSTICE G BASAVARAJA
                               CRIMINAL APPEAL NO. 656 OF 2016
                   BETWEEN:
                   THE STATE OF KARNATAKA
                   BY BANAKAL POLICE STATION,
                   REPRESENTED BY THE
                   STATE PUBLIC PROSECUTOR,
                   HIGH COURT BUILDING,
                   BENGALURU - 577 113.
                                                                 ...APPELLANT
                   (BY SRI. M.R. PATIL, HCGP)

                   AND:
                   MUHAMMEDKUNHI. M,
                   S/O ABDULLA P.K,
                   AGED ABOUT 35 YEARS,
                   K.A.01-AB-2876, DRIVER,
                   R/O MUTTOTHI HOUSE,
Digitally signed
by SANDHYA S       KAKKATHODE, TALIPARAMBA POST,
Location: High     KANNUR DISTRICT, KERALA - 670 650.
Court of
Karnataka                                                      ...RESPONDENT
                   (RESPONDENT - SERVED AND UNREPRESENTED)

                          THIS CRL.A IS FILED U/S 378(1)(3) OF CR.P.C PRAYING
                   TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND
                   ORDER DATED 05.11.2015 PASSED BY THE LEARNED ADDL.
                   CIVIL AND JMFC AT MUDIGERE IN C.C.NO.243/2014 IN
                   ACQUITTING THE RESPONDENT-ACCUSED FOR THE OFFENCES
                   P/U/S 279, 304(A) OF IPC AND SEC.187 OF I.M.C ACT.
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                                                 NC: 2023:KHC:46528
                                              CRL.A No. 656 of 2016




      THIS APPEAL, COMING ON FOR 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,

Mudigere in CC.No.243/2014 dated 05.11.2015, (for short

hereinafter referred to as 'trial Court').

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

as per their status before the trial Court.

3. Brief facts of the prosecution case are that on

18.02.2014 in the morning at about 7.15 within the jurisdiction

of Banakal police station in the Horatti village on the Kenjige

road when the son of CW1 was standing to cross the road at

that time the accused being the driver of the lorry bearing

No.KA.01-AB-2876 came in a rash and negligent manner which

endangers the human life and dashed against the son of

CW1/PW1 and without stopping the lorry, the accused ran

away. As a result, the son of PW1 fell down and sustained

injuries upon his head and leg and succumbed due to the said

injuries while taking him to the hospital and thus accused has

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committed the offences punishable under Sections 279, 304(a)

of IPC and 187 of IMV Act.

4. After filing charge sheet, a case was registered

against the accused for the alleged commission of offences in

CC.No.243/2014. Summons was issued to the accused. In

response to summons, accused appeared before the trial Court

and enlarged on bail accused pleaded not guilty and claimed to

be tried.

5. To prove the case of the prosecution against the

accused, 10 witnesses were examined as PW1 to PW10, 17

documents were marked as Ex.P1 to Ex.P17. On closure of

prosecution side evidence, the statement of accused under

Section 313 of Cr.P.C was recorded. Accused had denied

evidence of the prosecution witnesses, but he has not chosen

to lead any defence evidence. On hearing the arguments, the

trial Court acquitted the accused. Being aggrieved by the

impugned judgment of acquittal, the State has preferred this

appeal.

6. Learned High Court Government Pleader has

submitted his arguments that the impugned judgment and

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order of acquittal passed by the Court below is opposed to law.

The reason assigned by the trial Court while passing impugned

judgment and order of acquittal of respondent is not proper.

Trial Court has not considered the evidence adduced by the

prosecution witnesses. The trial Court has not properly

appreciated the evidence of PW2 to PW4 in its proper

prospective. The trial Court has not properly appreciated

Ex-P13, the road sketch of the accident and not properly

appreciated the evidence of prosecution witnesses. On all these

grounds sought for allow this appeal.

7. Despite notice was served to the respondent, he

remained absent and unrepresented.

8. Having heard the arguments of learned High Court

Government Pleader and perusal of records, the following

points would arise for the consideration:

1) Whether the appellant/complainant has made out

grounds to interfere with the impugned judgment of

acquittal ?

2) What Order?

My answer to the above points are as under:

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Point No.(1): Negative,

Point No.(2): As per final order.

9. I have carefully examined the materials placed

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

18.02.2014 in the morning at about 7.15 within the jurisdiction

of Banakal police station in the Horatti village on the Kenjige

road, when the son of PW1 Adithya was standing to cross the

road, at that time, the accused being the driver of the lorry

bearing No.KA.01-AB-2876 came in a rash and negligent

manner and dashed to Adithya. As a result he sustained

injuries upon his head and leg, while he was shifting to the

hospital he succumbed to the injuries.

10. To prove the case of the prosecution, the

prosecution has examined PW1-B.K.Shankarbhatt, who is the

father of deceased Adithya. He was not an eye witness to the

incident. In his evidence he was identified his signature upon

the complaint-Ex.P1. When he was asked about the contents of

Ex.P1 he was clearly admitted that he does not know the

contents of Ex.P1 and was not present at the time of accident.

PW2-K.B.Gopal Gowda has clearly admitted in his evidence that

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he cannot say the exact speed of the lorry and he has deposed

in his examination-in-chief that when the deceased Adithya was

trying to cross the road, the accident has occurred. PW3 also

deposed the same and he has not deposed as to the rash and

negligent manner on the part of the accused. The prosecution

has treated him as hostile witness and cross-examined him

before the Court. In his cross-examination, he has denied the

statement recorded by the police under Section 161(3) of

Cr.PC., PW4-J.R.Jagadeesha, another eye witness has also not

supported the case of the prosecution. In his cross examination

he has categorically denied the statement under Section 161(3)

of Cr.P.C recorded by the Investigating Officer, which is marked

as Ex.P6. PW5-H.B. Ashoka, another eye witness also not

supported the case of the prosecution. During his cross-

examination, he has also categorically denied the statement

which was recorded by the Investigating Officer under Section

161(3) of Cr.P.C marked at Ex.P7, PW6-H.B.Raju and PW7-

H.A.Devannagowda have adduced their evidence-Ex.P2 as to

mahazar and also the contents of Ex.P3 and Ex.P4. PW8 -

Muhammed Ashraf is the owner of the lorry who deposed in his

evidence that the accused was the driver of the lorry. PW9-

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Jaganatha and PW10-S.S.Hiremath are the police officials who

have deposed as to their respective information.

11. On careful examination of the contents of Ex.P1, it

is clear that, it is the case of the prosecution that when the

deceased was standing by the side of the road, the accused

being the driver of the lorry hit the deceased Adithya. But the

material evidence of prosecution reveals that, the accident

occurred when the deceased was trying to cross the road.

There is no consistency in the contents of Ex.P1 and the

evidence of prosecution witnesses. In para No.24 to 31, the

trial Court has observed as hereunder:

"24. To prove the said accident the prosecution examined Pw-1 to 5. Pw-1 deposed that he did not see the accident but heard that on the said day the accused in the lorry bearing No.KA-AB- 2876 driving in a rash and negligent manner caused accident to his son. During the cross- examination he stated that he was not present in place of occurrence and he does not know the contents of the Ex. P. 1. Hence, evidence of the Pw-1 is not believable.

25. In respect of the said accident, Pw-2 to 4 deposed in similar line that on the said day in the morning when the deceased Adithya was standing in the road to cross the K.M road at that time the lorry bearing KA.AB-2876 from Mangalore came towards Mudigere caused accident to the said deceased Adithya and later Pw-2 to 4 took

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Adithya to the hospital. Nothing is elicited from the mouth of the said witness that they have not seen the incident and the said accident was not occurred. The evidence of the Pw-2 to 4 is in consonance with the Ex. P.1 in respect of the accident. Hence, the prosecution proved the said accident.

26. The next question is whether on the said day the accused was driving the said vehicle. In that aspect Pw-1 is not eye witness, Pw-2 to 4 in their cross- examination deposed that Pw-2 to 4 have not seen who was driving the said vehicle. Pw-5 has not supported the case of the prosecution being eyewitness that on the said day the accused was driving vehicle. Pw-8 owner of the vehicle deposed that on the said day accused was driving said vehicle. Pw-10 investigating officer also deposed that the accused was driving on the said day except the investigating officer and owner of the vehicle no body have supported the prosecution case that on the said day the accused was driving the vehicle.

27. The next question is whether on the said day the accused was in a rash and negligent manner and due to the said rash and negligence accident is occurred. The eyewitnesses as per Pw-2 to 5 have not deposed that on the said day the accused was driving in rash and negligent manner.

28. Pw-2 deposed that on the said day the lorry was moved little bit fast. Nothing is elicited from the mouth of Pw-2 to 4 that on the said day the accused was driving the vehicle in a rash and negligent manner.

29. The prosecution to proved spot mahazar examined Pw-6 and 7 who deposed in similar line that on the said day the police summoned them to be as pancha in the place of occurrence and

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police drawn the spot mahazar and seized the lorry. It is observed from the Ex P.3 and P.4 that is the mahazar and the photo of the place of occurrence, wherein it discloses that the place of occurrence is the left side tar road. It is observed from the said document that the accident is occurred in the left side of the tar road and vehicle is moving in the left side of the road and the said lorry not driven on the mud road beside the tar road. If the lorry driven in the mud road and caused accident it may be the different case but it is the state high way road wherein normally the vehicles driven on the road.

30. From the evidence available on record it is clear on the said day there was accident. But the that prosecution has not proved that due to the rash and negligent of the accused the said accident was occurred. As the said lorry is the driving on the tar road. Even prosecution has not put forth any evidence that on the said day the accused was driving in a rash and negligent manner.

31. The story of the prosecution has not been supported by the sufficient evidence and upon the sole testimony of the police officials, it cannot be believed the version of the prosecution which creates the doubt. If any doubt is created in the prosecution case that advantage shall always go to the benefit of the accused. The prosecution utterly failed to bring home the guilt of the accused. So under the facts and circumstances I am of the clear opinion that the accused was not driving in the rash and negligent manner and the death of Adithya not due to accident. When such being the case, accused is not liable for any offences punishable U/S.279 and 304(A) of IPC as well as I answer the point No.1 and 2 in the negative."

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12. On re-examination/re-appreciation and re-

consideration of the entire evidence on record, I do not find any

illegality/infirmities in the impugned judgment of acquittal.

Hence, I answer point No.1 in negative.

Regarding Point No.2:

13. For the aforesaid reasons and discussion, I proceed

to pass the following: