State Of Karnataka vs Vijendra @ Shekhara
2023 Latest Caselaw 809 Kant

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                                                       CRL.A No. 287 of 2012




                  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. 287 OF 2012
                BETWEEN:

                   STATE OF KARNATAKA
                   BY N.R. PURA POLICE.
Digitally                                                      ...APPELLANT
signed by D K
BHASKAR
Location:       (BY SMT. K P YASHODHA - HCGP)
HIGH COURT
OF
KARNATAKA       AND:

                   VIJENDRA @ SHEKHARA
                   S/O MANJAPPAGOWDA
                   AGED ABOUT 37 YEARS
                   R/O GUBBIGA, N R PURA TALUK
                   CHIKMAGALUR DISTRICT.

                                                             ...RESPONDENT

                (BY SRI. N.R. RAVIKUMAR .,ADVOCATE FOR
                    SRI. PRADEEP NAIK .K - ADVOCATE)

                       THIS CRIMINAL APPEAL IS FILED U/S.378(1) AND (3)
                CR.P.C BY THE STATE PRAYING TO: A)GRANT LEAVE TO
                APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL
                DATED 29.11.2011 PASSED BY THE F.T.C., CHIKMAGALUR IN
                CRL.     APPEAL    NO.42/2010      -    ACQUITTING      THE
                RESPONDENT/ACCUSED FOR THE OFFENCES P/U/S 279 AND
                304A I.P.C.; B) SET ASIDE THE AFORESAID JUDGMENT AND
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                                       CRL.A No. 287 of 2012




ORDER OF ACQUITTAL DATED 29.11.2011 PASSED BY THE
FTC, CHICKMAGALUR IN CRL.A.NO.42/2010; C) CONVICT THE
RESPONDENT FOR THE OFFENCES AND D) CONFIRM THE
ORDER OF CONVICTION IN C.C.NO.219/2009 PASSED BY THE
LEARNED JMFC, N.R. PURA DATED 20.02.2010.


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

                       JUDGMENT

This appeal arises out of the judgment of acquittal

passed by the learned Presiding Officer, Fast Track Court,

Chikmagalur in Crl.A.No.42/2010 dated 29.11.2011

wherein the learned Fast Tract Court Judge allowed the

appeal by setting aside the judgment of conviction passed

by the learned JMFC, N.R. Pura in C.C.No.219/2009 dated

20.02.2010. The accused was convicted by the learned

JMFC for offences punishable under Sections 279 and

304-A of the Indian Penal Code, 1860 (for short 'IPC').

2. The brief case of the prosecution is that on

20.04.2009 at about 12.30 p.m. near First Grade College

CRL.A No. 287 of 2012

near Manasur on N.R. Pura / Shimoga Main Road, the

deceased and his daughter were going by walk on the

road. It is further alleged that the accused respondent

being the driver of the offending vehicle Maruti Swift car

bearing Registration No.MH/12-DE-1100, came from N.R.

Pura side towards Shimoga side in a rash and negligent

manner at a high speed so as to endanger human life and

dashed against the deceased Joseph, as a result of which

he sustained grievous injuries and he was shifted to N.R.

Pura Hospital. There, he succumbed to the injuries.

Thereafter, a complaint was lodged with N.R. Pura Police

and an FIR came to be registered and after investigation,

the charge-sheet came to be filed against the accused for

the offences stated above.

3. The prosecution examined nine witnesses as PW-1

to PW-9 and got marked 8 documents and no material

objects were marked. The respondent/accused denied the

evidence of prosecution in his statement recorded under

CRL.A No. 287 of 2012

Section 313 of Code of Criminal Procedure (for short

hereinafter referred to as 'Cr.P.C.'). After hearing the

arguments of the learned counsel for the parties, the

learned JMFC convicted the accused and imposed sentence

of 6 months imprisonment and fine of Rs.1,000/- for the

offence under Section 279 IPC and also imposed simple

imprisonment for one year for offence under Section 304 A

IPC and fine of Rs.2,000/-. Default sentence was also

imposed. Aggrieved by the same, the accused preferred

an appeal where the learned Presiding Officer of the Fast

Track Court, after hearing the arguments, set aside the

said judgment of conviction and acquitted the accused.

The present appeal is preferred against the said order.

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

the appellant / State and the learned counsel Shri N.R.

Ravi Kumar for the respondent / accused.

The learned HCGP argued that, the deceased along

with his daughter / PW-9, were proceeding by walk on a

CRL.A No. 287 of 2012

mud road by the side of the main road. The accused

drove the vehicle in a rash and negligent manner and

dashed against them. The learned JMFC has rightly

appreciated the matter and has convicted the accused.

But the learned Presiding Officer of the Fast Track Court

has passed the judgment of acquittal, which is illegal and

contrary to the material evidence. The said judgment is

erroneous and not appreciating the evidence in a right

perspective.

It is further argued by HCGP that, the PW-9 /

Alphonsa who is the daughter of the complainant is the

eye-witness to the accident. She has categorically

deposed that the driver of the Maruthi car drove the car in

a zig-zag manner. That itself shows that the driver was

driving the vehicle in a rash and negligent manner. As a

result of the said hitting by the driver of the said car, her

father Joseph fell down and he sustained grievous injuries.

The finding of the Trial Court is totally erroneous. The

CRL.A No. 287 of 2012

Motor Vehicle Inspector also found that there was damage

to the vehicle. The accused has not taken any defence in

answer to Section 313 Cr.P.C. statement. Learned

Presiding Officer has not appreciated the sketch. The

deceased after being hit by the vehicle, fell down and hit

against an electric pole nearby and sustained injuries.

Therefore, the learned HCGP prays to set aside the

judgment of acquittal and to convict the accused.

5. Against this, the learned counsel for the

respondent argued that none of the independent eye-

witnesses supported the prosecution case. The evidence

of PW-9 is interested version. There are material

contradictions in her evidence. In fact, she was not at all

eye-witness in view of her cross-examination evidence.

The filing of the complaint itself is doubtful. It is admitted

that number of persons were present but none of them

have supported the prosecution case. The evidence of the

Motor Vehicle Inspector also creates doubt about his

CRL.A No. 287 of 2012

report. The Investigating Officer also has stated that he

cannot say as to how the accident had occurred. The

sketch, map of the scene of offence, spot panchanama is

not proved as none of the witnesses have asserted the

statements made by this PW-9. PW-9 herself has not

stated that she has shown the scene / place of offence.

Therefore, the learned Sessions Judge, after considering

all the aspects, has rightly acquitted the accused and this

Court being the First Appellate Court, normally would not

interfere unless the judgment is capricious or illegal. In

support of his arguments, the learned counsel relies on a

judgment of the Hon'ble Supreme Court in the case of

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

493)), wherein the Hon'ble Supreme Court has considered

the words 'high speed', 'negligence' and 'rashness' and

mere driving of a vehicle in high speed does not lead to an

inference that it was driven in a rash and negligent

manner. He relied mainly on paragraphs no.4 and 5 of the

said judgment, wherein it is held as under:

CRL.A No. 287 of 2012

"4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming

CRL.A No. 287 of 2012

from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.

5. There being no evidence on the record to establish "negligence" or "rashness" in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged."

Hence, he prayed to dismiss the appeal.

6. I have perused the judgment of both the Trial

Court and the Appellate Court as well as the evidence on

record.

7. PW-1 and PW-2 one Mr. Sandesh and Ramanna

both are witnesses to the mahazar Exhibit P1. They have

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CRL.A No. 287 of 2012

not supported the prosecution case. PW-3 is the Senior

Motor Vehicle Inspector who has examined the vehicle

after two days of the incident in N.R. Pura Police Station.

In his cross-examination he has stated that he cannot say

whether the glass was broken on the date of the accident.

He cannot say whether the bannet of the said vehicle was

bent earlier or not. He did not know as to how the vehicle

was brought to the police station and prior to examination

if the vehicle was repaired, he cannot say whether any

accident occurred or not. His evidence also would not

support the prosecution case.

8. PW-5 / V.P. Sibi and PW-4/ Shaju are eye-

witnesses. Both of them have not supported the case of

the prosecution.

9. PW-6 / Revanna PSI is the person who has

received the complaint at the police station and registered

the same. He has conducted part of the investigation. He

has admitted that he cannot say as to who has altered the

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CRL.A No. 287 of 2012

complaint and carried out the correction of the words

'Junior College' to 'Government Pre University College'. He

has also stated that PW-9 who is CW-1, was not present at

the time of drawing spot mahazar nor he has seized any

articles. He has stated that he cannot say whether the

deceased fell down and hit himself on seeing the vehicle

coming near him or whether the vehicle has dashed on

him. But simply he states that he came to know that

vehicle dashed. Therefore, it creates a doubt upon his

investigation.

10. PW-7 / Prabhu D.T. is the Circle Inspector who

has conducted further investigation but none of the

witnesses have stated about giving any of the statements.

11. PW-8 / Rajesh is the owner of the vehicle has

given evidence and he says about the release of the said

vehicle.

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CRL.A No. 287 of 2012

12. PW-9 / Alphonsa the complainant and the

daughter of the deceased has stated that her father came

to N.R. Pura to see the Father at the Church and on that

day, a marriage was going on and they went to have tea

at a hotel and they were returning on the left side of the

road by walk in the mud road. At that time, a car came in

front of them in a zig-zag manner and after seeing the car,

she went to the side and by the time she informed her

father, the car dashed to her father. Her father fell down

and sustained injuries. Immediately, he was taken to

hospital. There he died. She has identified the accused as

the driver of the said car.

13. The cross-examination reveals that on that day,

there was a marriage and reception and about 800-1000

people had gathered there for another function at the

church. There were a number of vehicles parked in front

of the Church. On that day, about 10 to 15 persons had

gathered near place of accident. The car dashed her

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CRL.A No. 287 of 2012

father and did not stop, but the persons in the hotel

stopped the car and number of persons had witnessed the

accident. Her father had not sustained any injury except

to his head and ear. She has also stated that the police

came to the spot and took the complaint. She has denied

the suggestion that her father himself fell down and

sustained injuries.

14. On perusing the entire evidence, it is seen that

the driver of the vehicle was driving the vehicle on the left

side of the road. It is stated that both PW-9 and deceased

were going together. The vehicle did not touch PW-9. It

is stated that the vehicle was coming in front of them. If

at all the vehicle was coming as stated by PW-9 in a zig-

zag manner, it could have been seen from a distance. The

deceased would have moved out of the road. On the other

hand, if at all the vehicle had dashed directly, there should

have been some injury on his leg or abdomen. It is stated

that he only fell down and sustained injuries. It is also

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CRL.A No. 287 of 2012

evidence that there was an electric pole as per the scene

of spot panchanama. According to the prosecution, the

vehicle dashed to the deceased so that he fell down near

to an electric pole which was situated about 15 feet away

from the mud road. PW-9 has not stated that her father

fell down near any electric pole or he was thrown away

due to impact of vehicle near the electric pole. How the

blood came near the said electric pole, is also not

forthcoming. Therefore, the evidence of PW-9 itself

creates a doubt about the manner in which the accident

might have occurred.

15. It is settled principle of law that the prosecution

has to prove the ingredients of the offences as alleged and

if there are two views possible, the accused has to be

given benefit of doubt. It is also settled principle of law

that this Court being an Appellate Court, while considering

the appeal against acquittal, will not interfere unless the

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CRL.A No. 287 of 2012

judgment of acquittal is illegal, perverse and not based on

principles regarding appreciation of evidence.

16. In the light of the settled principles if the

judgment of acquittal passed by the learned Sessions

Judge is considered, then it is evident that the learned

Sessions Judge has considered the entire evidence and re-

appreciated the same and found that the prosecution has

failed to prove the guilt of the accused. I find no illegality

or perversity in the findings. None of the witnesses have

supported the prosecution case. The evidence of PW-9

does not inspire any confidence to show that accused

drove the vehicle in a rash and negligent manner so as to

endanger human life. The manner in which the accident

occurred and the place where the deceased fell down itself

is doubtful. Therefore, I find no ground to interfere with

the judgment of acquittal. Accordingly, I pass the

following:

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CRL.A No. 287 of 2012

ORDER

(i) The appeal preferred by the appellant / State is

dismissed.

(ii) The judgment of acquittal dated 29.11.2011

passed by the learned Sessions Judge in Crl.A.No.42/2010

is hereby confirmed.

(iii) Send back the records to trial court.

Sd/-

JUDGE

KS