State Of Karnataka By vs Sri Nataraj
2023 Latest Caselaw 808 Kant

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                                                      CRL.A No. 797 of 2013




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                      DATED THIS THE 12TH DAY OF JANUARY, 2023

                                         BEFORE
                           THE HON'BLE MR JUSTICE P.N.DESAI
                           CRIMINAL APPEAL NO. 797 OF 2013
               BETWEEN:

                  STATE OF KARNATAKA BY
                  SHIKARIPURA RURAL POLICE STATION.

                                                               ...APPELLANT
Digitally
signed by D    (BY SMT. K P YASHODHA - HCGP)
K BHASKAR
Location:      AND:
High Court
of Karnataka      SRI NATARAJ
                  S/O SIDDAPPA,
                  AGED 27 YEARS,
                  OCC: DRIVER OF LORRY BEARING ,
                  REG.NO.KA-01/AG 4658
                  R/AT DABBANNA BAIRANAHALLI VILLAGE,
                  SHIKARIPURA TALUK,
                  SHIMOGA DISTRICT-577 427.

                                                             ...RESPONDENT

               (BY SRI. M.K. GIRISH - ADVOCATE)

                      THIS CRL.A. IS FILED U/S.378(1) AND (3) CR.P.C BY THE
               STATE PRAYING TO: 1)GRANT LEAVE TO APPEAL AGAINST THE
               JUDGEMENT AND ORDER OF ACQUITTAL DATED 30.04.2013
               PASSED BY THE CIVIL JUDGE AND JMFC, SHIKARIPURA IN
               C.C.NO.1141/2010 - ACQUITTING THE RESPONDENT/ACCUSED
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                                      CRL.A No. 797 of 2013




FOR THE OFFENCE P/U/S 279 AND 304(A) OF IPC AND ALSO
U/S 134 OF THE I.M.V. ACT; B) SET ASIDE THE JUDGMENT
AND ORDER OF ACQUITTAL DATED 30.04.2013 PASSED BY
THE LEARNED CIVIL JUDGE AND JMFC, SHIKARIPURA IN
C.C.No.1141/2010 ACQUITTING THE RESPONDENT OF THE
OFFENCE PUNISHABLE UNDER SECTION 279 AND 304(A) OF
IPC AND ALSO UNDER SECTION 134 OF INDIAN MOTOR
VEHICLES ACT AND C) CONVICT THE RESPONDENT FOR ALL
THE OFFENCES.

     THIS CRIMINAL APPEAL, COMING ON FOR HEARING,

THIS DAY, THE COURT DELIVERED THE FOLLOWING:


                       JUDGMENT

This appeal arises out of the judgment of acquittal

dated 30.04.2013 in C.C.No.1141/2010 passed by the

learned Civil Judge & JMFC, Shikaripura (hereinafter

referred to as 'learned JMFC' for brevity) wherein the

respondent/accused was acquitted for the offences under

Section 279 of and 304A of Indian Penal Code, 1860

(hereinafter referred to as 'the IPC' for brevity) and also

for offences under Section 134 of the IMV Act.

CRL.A No. 797 of 2013

2. The brief case of the prosecution is that on

06.07.2010 at about 6.00 p.m., on Mathikote-Shikaripura

road, Shivanagowda / PW-2 was riding his Hero Honda

Splendor Plus motor bike bearing Registration No.KA-

27/O-8764 and proceeding from Hadrihalli village towards

Mathikote along with his wife and three year old daughter.

When he came near Baganakatte Cross, the accused being

the driver of the lorry bearing Registration No.KA-01/AG-

4658 came from Shikaripura side in a rash and negligent

manner so as to endanger human life and dashed against

the Hero Honda which was coming in the opposite side.

As a result, the wife of the PW-2 namely Manjula, fell

down on the right side of the road and right side rear

wheel of the lorry ran on her and she succumbed to the

injuries on the spot. On a complaint being filed by PW-1 /

Basavanagowda, the Investigating Officer who registered

the case after conducting investigation, filed a charge-

sheet against the accused.

CRL.A No. 797 of 2013

3. In order to prove its case, the prosecution

examined in all eight witnesses as PW-1 to PW-8 and got

marked Exhibits P1 to P10. The respondent/accused

denied the evidence of prosecution in his statement

recorded under Section 313 of Code of Criminal Procedure,

1973 (hereinafter referred to as 'Cr.P.C.' for brevity). On

behalf of respondent/accused, he has neither examined

nor produced any documents. After hearing the

arguments, the Trial Court acquitted the accused.

Aggrieved by the judgment of acquittal, the State has

preferred this appeal.

4. Heard Smt. K.P.Yashodha, the learned HCGP for

appellant / State and Shri M.K. Girish, learned counsel for

the respondent/accused.

5. Learned HCGP for appellant/State argued that

the judgment of acquittal passed by the Trial Court is

illegal and contrary to the law and evidence on record. The

death is not in dispute and the accident is also not in

CRL.A No. 797 of 2013

dispute. The JMFC has not properly appreciated the

evidence on record, particularly the evidence of PW-2 /

Shivanagowda wherein he has stated that the driver drove

the vehicle in a rash and negligent manner and he also

sustained injuries. His evidence is corroborated by PW-3,

an eye-witness who was also coming in a bike behind his

motor cycle. PW-7 and PW-8 are police witnesses. The

entire evidence of the prosecution is that the accident has

occurred due to the rash and negligent driving of the

accused, being the driver of the offending lorry. Hence,

the learned HCGP prays to set aside the acquittal

judgment of the JMFC and to convict the accused.

6. The learned counsel for the respondent / accused

argued that admittedly the accident took place as the

motor bike fell into a ditch and due to that, the wife of the

deceased fell down from the motor bike and sustained

injuries. There was no rash and negligent driving by the

accused. The learned counsel for the accused also argued

CRL.A No. 797 of 2013

that PW-3 / eye-witness has not seen the incident which

was not head on collision at all. According to PW-3, the

lorry had dashed the motor cycle and PW-2 and his

daughter fell to the left side and the wife of PW-2 fell to

the right side. But PW-2 and his daughter had not

sustained any injuries. The learned counsel also argued

that the other witnesses have not supported the

prosecution case. As it was heavily raining and as

observed by the learned Trial Judge, the road was full of

water and in order to avoid a pit, the rider of the vehicle /

PW-2 took the motor cycle away from the pit as a result of

which his wife fell on the right side and himself and his

daughter had fell on the left side. It is thus the accident

had occurred. In support of his case, the learned counsel

for the respondent / accused has relied on the following

decisions:

i) STATE OF KARNATAKA vs. SATISH (1998) 8 SCC

493;

CRL.A No. 797 of 2013

ii) ARMUGAM NAYANAR vs. STATE OF KARNATAKA

(2020 CRI.L.J. 586)

iii) BRAHAM DASS vs. STATE OF H.P. (2009 CRI.L.J.

4297)

7. I have perused the judgment of the Trial Court as

well as the evidence on record. PW-1 has lodged the

complaint and has set the criminal law into motion. But

he has not seen the incident. PW-2 / Shivanagowda is the

husband of the deceased. He has stated that when he was

riding the motor cycle on the left side of the road, the

offending lorry came from the opposite direction of the

motor cycle and dashed his vehicle. Then he himself and

his daughter fell on the left side while his wife fell on the

right side. Then the right side rear wheel of the lorry ran

over his wife. When people gathered there, PW-2 has

stated that the accident occurred due to the fault of the

vehicle in question. He has not stated in his examination-

in-chief that the lorry was coming at a high speed or in a

CRL.A No. 797 of 2013

rash and negligent manner. Simply he has stated that the

lorry came front and dashed the motor cycle. In the

cross-examination, he has admitted that there was heavy

rain on that date. He has also stated that at the place of

the accident, there were pits. Even at the spot where the

accident took place, there was a pit on the road and water

was also filled in the said pit. Even in front of the scene of

place of occurrence, there was another pit. He has further

stated that after seeing the pit, he stopped the bike. He

has further stated that his three year old daughter was

sitting in front of the motor bike and his wife was the

pillion rider. He has clearly admitted that suddenly after

seeing the pit and as the lorry was also by the side, his

wife lost balance and his daughter and himself jumped

towards the left side of the road. Of course they have not

sustained any injuries. His evidence does not disclose that

the accident occurred due to the rash and negligent

driving of the driver of the lorry.

CRL.A No. 797 of 2013

8. PW-3 / Kotreshappa being an eye-witness, has

stated that PW-2 was proceeding in a motor bike along

with his wife and daughter. He himself was proceeding in

the same direction in another bike about 100 feet away

from the said bike. He has said that the accused / driver

of the lorry was driving the vehicle at 50 kms speed and

there were pits. In the cross-examination, he has clearly

stated that on that day, there was rain which was prior to

the accident and there were pits in the road and water was

also on the road. He has clearly stated that he has not

seen the accident actually. When he saw first time, they

had already fell down from the bike. So his evidence will

also not help the prosecution case.

9. PW-4 / Basavarajappa was proceeding in the

motor cycle along with PW-3 / Kotreshappa. He has not

supported the prosecution case.

10. PW-5 / Jayadevappa is a witness for spot

panchanama. He has not supported the prosecution case.

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CRL.A No. 797 of 2013

11. PW-6 / Marutesh is another panch witness. He

has also not supported the prosecution case.

12. PW-7 / T.V. Suresh is the Police Inspector who

conducted the investigation and filed the charge-sheet.

13. PW-8 / G. Somashekar is the PSI who collected

the post-mortem report.

14. The spot panchanama shows that there is no

damage to the lorry. Of course the place where the

accident took place is not shown as a wet place or there

are pits as suggested by the witness. So, Exhibit P2 does

not show the correct picture.

15. Admittedly, on that day, there was heavy rain

just prior to the incident. Admittedly, the road has full of

pits and as admitted by PW-2 himself, he saw the pit filled

with water and tried to avoid it and tried to stop the bike.

So it appears that because of the bad shape of the road as

it was full of pits, there was a possibility of the rider of the

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CRL.A No. 797 of 2013

bike trying to have moved the bike away from the pit, due

to which his wife might have fell down on the right side of

the road and both himself and daughter fell on the left

side. If at all the accident had occurred as stated, then

definitely both of them should have sustained at least

some injuries. Both the rider of the bike and his daughter

who was sitting in front of him, have not at all sustained

any injuries. That itself shows the possibility of the wife of

PW-2 having lost her balance and having fallen down when

PW-2 was trying to avoid the pit. By that time, the lorry

might have come and ran over her as a result of which the

unfortunate incident might have taken place.

16. Learned JMFC, after considering the evidence,

found that even the evidence of PW-2 does not disclose

that the accused was driving the lorry in a rash and

negligent manner. The manner in which the accident took

place, the place where the accident took place and the

version of the prosecution witnesses, clearly indicate that

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CRL.A No. 797 of 2013

the possibility of the defence taken by the accused, also,

cannot be ruled out. Therefore, as there was rain on that

day just prior to the incident and there were many pits on

the road and it was full of water, the learned JMFC found

that the incident has occurred as a result of PW-2 having

avoided his bike going inside the pit. The wife of PW-2

who was sitting on the left side might have fell down on

the right side. Hence, the learned JMFC has given the

benefit of doubt to the accused and came to the conclusion

that the prosecution has failed to prove that the accident

has occurred due to the rash and negligent driving of the

accused. I find no grounds to interfere with the finding of

the learned JMFC.

17. It is settled principle of law that this Court being

the First Appellate Court, cannot interfere in the judgment

of acquittal unless the judgment is illegal, perverse and

not based on appreciation of evidence. If the present

judgment of acquittal passed by the learned JMFC is

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CRL.A No. 797 of 2013

viewed in the light of these principles, then in my

considered view, the prosecution has failed to prove the

guilt of the accused beyond all reasonable doubt. Hence, I

find no grounds to interfere with the findings of the

learned JMFC. Accordingly, I pass the following:

ORDER

The appeal filed by the appellant / State is dismissed.

The order dated 30.04.2013 in C.C.No.1141/2010 passed

by the JMFC acquitting the respondent / accused is hereby

confirmed.

Sd/-

JUDGE

KS