Karnataka High Court
State Of Karnataka vs Nisar S/O Kasim Saab Patel on 2 June, 2023
Bench: Anil B Byabkj
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CRL.A No. 100031 of 2016
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 2ND DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 100031 OF 2016
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE
POLICE SUB-INSPECTOR,
KARWAR TRAFFIC POLICE STATION,
UTTARA KANNADA DISTRICT,
THROUGH THE ADDL. STATE
PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH. ...APPELLANT
(BY SHRI M.H.PATIL, AGA)
Digitally
signed by J
MAMATHA
J AND:
Date:
MAMATHA 2023.05.28
20:00:35 -
0700
NISAR, S/O KASIM SAAB PATEL,
AGED ABOUT 38 YEARS,
OCC: LORRY DRIVER,
R/O: JAYANTI NAGAR,
KIRVATTI, TALUK: YALLAPUR,
DISTRICT KARWAR. ...RESPONDENT
(BY SHRI GIRISH V. BHAT, ADVOCATE)
***
THE CRIMINAL APPEAL IS FILED U/S 378(1)& (3) OF CR.P.C.
SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT
AND ORDER OF ACQUITTAL DATED 13.10.2015 PASSED IN C.C.NO.
548/2013 BY THE JUDICIAL MAGISTRATE, KARWAR AND TO SET
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
13.10.2015 PASSED IN C.C.NO. 548/2013 BY THE JUDICIAL
MAGISTRATE, KARWAR AND TO CONVICT THE RESPONDENT /
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CRL.A No. 100031 of 2016
ACCUSED FOR THE OFFENCE PUNISHABLE U/SEC. 279, 337, AND
304-A OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR FURTHER HEARING
AND THE SAME HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 28.03.2023, THIS DAY, THE COURT, DELIVERED THE
FOLLOWING:
JUDGMENT
Appellant/State feeling aggrieved by the judgment of
acquittal passed by the learned Chief Judicial Magistrate,
Karwar, in C.C.No.548/2013 dated 13.10.2015 has preferred
this appeal.
2. Parties to the appeal are referred with their ranks as
assigned in the trial Court for the sake of convenience.
3. The factual matrix leading to the case of
prosecution can be stated in nutshell to the effect that on
29.04.2013 at 10 p.m., accused drove his lorry bearing
registration No.KA-31/5705 from Goa towards Karwar with high
speed in rash and negligent manner so as to endanger human
life. When he reached milestone No.103-104 near Kodibag,
Kapri temple cross on NH-17, accused having lost control over
the vehicle dashed against the motorcycle bearing registration
No.KA-30/J-5445 on it's right side which was going towards
Sadashivgad from Kapri temple cross. On account of the
CRL.A No. 100031 of 2016
actionable negligence of accused in driving lorry bearing
registration No.KA-31/5705 accident in question occurred
resulting in the death of Vilas Madhukar Anvekar, rider of
motorcycle and Subhay Vilas Anvekar, pillion rider, who
succumbed to the injuries suffered by them in the accident
while they were taken to Bombolin Hospital at Goa. Another
inmate of the motorcycle - Pratik sustained grievous injuries.
On these allegations made in the complaint, Investigation
Officer after completion of investigation filed charge-sheet
against the accused for offences punishable under Sections
279, 337 and 304 (A) IPC.
4. In response to notice, accused appeared before the
trial Court and contested the matter. The trial Court after
being prima facie satisfied framed accusation against the
accused. Accused pleaded not guilty and claimed to be tried.
Prosecution to prove the accusation leveled against accused
relied on the evidence of PWs-1 to 14, documents Ex.P.1 to
Ex.P.18, so also got identified M.Os.1 and 2.
5. On closure of prosecution evidence, statement of
accused under Section 313 Cr.P.C. came to be recorded.
Accused has denied all the incriminating material evidence
CRL.A No. 100031 of 2016
appearing against him and claimed that false case is filed. Trial
Court after appreciating the evidence on record has acquitted
accused from the accusation leveled against him.
6. Appellant/State feeling aggrieved by the judgment
of acquittal passed by trial Court preferred this appeal
contending that findings recorded by trial Court are contrary to
the evidence on record. There was absolutely no any valid
reason to discard the evidence of injured eyewitness, PW-6 and
the other eyewitness PW-7 to 10 have specifically spoken about
actionable negligence of the accused in driving lorry bearing
registration No.KA-31/5705 at the time of accident. The spot
features recorded in the spot panchanama Ex.P.1 and the
sketch map Ex.P.2 has not been properly appreciated with
reference to the evidence of PWs-6 to 9. The approach and
appreciation of oral and documentary evidence by trial Court
and findings recorded cannot be legally sustained. Therefore,
prayed for allowing the appeal and to set aside the judgment of
trial Court. Consequently, to convict the accused for the
aforesaid offences.
7. In response to notice, respondent/accused
appeared through learned counsel.
CRL.A No. 100031 of 2016
8. Heard the arguments of both sides.
9. On careful perusal of the oral and documentary
evidence placed on record by the prosecution, it would go to
show that the accident occurred on 29.04.2013 at 10 p.m. The
lorry bearing registration No.KA-31/5705 was driven by
accused from Goa towards Karwar and near Kodibag, Kapri
temple cross on N.H.17, accused proceeded on the extreme
right side of the road and dashed against motorcycle bearing
registration No.KA-30/J-5445, due to which rider of the
motorcycle, Vilas Madhukar Anvekar and his son, pillion rider -
Subhay Vilas Anvekar succumbed to the injuries sustained in
the accident on their way to Bombolin Hospital at Goa. The
prosecution alleges that accident in question occurred due to
actionable negligence of accused in driving the lorry bearing
No.KA-31/5705 at the time of accident leading to the death of
rider and pillion rider of motorcycle bearing No.KA-30/J-5445.
The prosecution to prove the accusation leveled against the
accused mainly relied on the oral evidence of PW-3 i.e., the
eyewitness to the accident and shifted the injured, rider and
pillion rider of motorcycle to the hospital for treatment and filed
complaint Ex.P.9 and evidence of injured witness PW-6 and that
of eyewitnesses PWs-7 to 9. The said evidence is sought to be
CRL.A No. 100031 of 2016
corroborated with the spot panchanama Ex.P.1 and sketch map
Ex.P.2, so also the evidence of Investigating Officer, PW-14.
The trial Court recorded findings that the spot features at the
place of accident recorded in spot panchanama Ex.P.1 has not
been proved by the prosecution. The evidence of prosecution
witnesses is conspicuously absent with regard to culpable
rashness and negligence of accused in driving the lorry bearing
No.KA-31/5705 at the time of accident. Further, none of the
eyewitnesses other than CW-6 have spoken about lorry coming
to the wrong side and PW-6 has deposed to the effect that
motorcycle hit the lorry after PW-6 fell down from the two-
wheeler. On such finding, the trial Court has acquitted the
accused.
10. The evidence of PW-3 would go to show that he was
proceeding on his motorcycle bearing No.KA-30/Q-2687 with
pillion rider CW-10 (PW-8) from Chittakula towards Baithkol at
10 p.m. and CW-9 (PW-7) was riding his motorcycle following
them. When they reached near Kapri temple cross of Kodibag,
a truck overtook both the motorcycle and after some distance
dashed against motorcycle coming from the opposite side on
which they were proceeding. Due to the accident, rider and
pillion rider of the said motorcycle have sustained injuries and
CRL.A No. 100031 of 2016
he has arranged to send them to Government Hospital, Karwar,
for treatment and then filed complaint as per Ex.P.9.
11. PW-6 is the material injured eyewitness who was
proceeding on the motorcycle driven by Vilas Madhukar
Anvekar. PW-6 has deposed to the effect that on 29.04.2013
at 10 p.m. they were proceeding on the splendor motorcycle
driven by maternal uncle Vilas Madhukar Anvekar and his son
Subhay Vilas Anvekar. When they reached near Kapri temple
main road while proceeding towards Sadashivgad, lorry by
coming to wrong side dashed against their motorcycle due to
which accident in question occurred. The rider and pillion rider
of the motorcycle succumbed to the injuries suffered in the
accident and he has suffered the injuries.
12. The oral evidence of PWs-7, 8 and 9 would go to
show that PW-3 Vidyadhar and PW-9 Lokanath were proceeding
on the motorcycle bearing No.KA-30/Q-2687 which was driven
by PW-3. PW-7 Shridhar was driving another motorcycle with
pillion rider PW-8 Deepak. Their oral testimony has to be
appreciated with reference to the spot features recorded under
the spot panchanama Ex.P.1 and the sketch map as per Ex.P.2.
CRL.A No. 100031 of 2016
13. The spot panchanama Ex.P.1 and the evidence of
PW-1, the spot panch witness to the panchanama Ex.P.1,
photographs as per Ex.P.3 to Ex.P.8 and the evidence of PW-
14, Investigating Officer would go to show that the spot
panchanama as per Ex.P.1 was prepared by PW-14 as shown
by the complainant who is an eyewitness to the accident and
sketch map was prepared as per Ex.P.2. The correctness of the
features recorded in the panchanama Ex.P.1 and the sketch
map as per Ex.P.2 has been denied by the defence. It is stated
in the spot panchanama at Ex.P.1 that the lorry and the two
wheeler were at the spot and further Ex.P.2 sketch map was
prepared, so also 6 photographs were taken as per Ex.P.3 to
Ex.P.6. The photographs at Ex.P.3 to Ex.P.8 have been marked
subject to objection.
14. PW-1 has admitted in his cross-examination that
motorcycle is not shown in the sketch EX.P.2 and both PW-1
and PW-2 have signed on the panchanama in the police station.
The co-panch to the spot panchanama Ex.P.1 has not
supported the case of prosecution. PW-2 has admitted in his
cross-examination that in Ex.P.3 to Ex.P.5, the truck and
motorcycle involved in the accident are not seen and there was
no trace marks of any accident at the place of accident. The
CRL.A No. 100031 of 2016
eyewitness PWs-3 and 6 have not spoken about lorry going to
the wrong side and dashed against the motorcycle driven by
Vilas Madhukar Anvekar.
15. The recitals of spot panchanama Ex.P.1 and the
sketch map Ex.P.2 speaks about the road at the place of
accident runs South to North. Gopika Kalyana Mantapa is
shown towards western side and Kapri temple on the eastern
side. There was a small curve towards northern side at the
place of accident. It has been elicited in the cross-examination
of PW-3 that the accident occurred on Kodibag road near Kapri
temple cross turning point. The lorry driven by accused was
having 10 wheels and loaded with iron rod and with the said
load of iron rod, the vehicle cannot move with high speed.
However, PW-3 states that there was slope at the place of
accident, but the same is not supported by any other evidence
placed on record by prosecution. PW-3 has admitted that the
left side portion of lorry was damaged and motorcycle went and
dashed against the lorry.
16. It has been elicited in the cross-examination of
injured eyewitness PW-6 that his maternal uncle Vilas
Madhukar Anvekar was riding motorcycle bearing registration
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CRL.A No. 100031 of 2016
No.KA-30/J-5445 with two pillion riders and he was sitting last.
When they reached near Kapri temple situated on the left side
of the road, accident occurred and by the side of Kapri temple,
there is a road joining to Kodibag Highway. PW-6 has further
admitted that the road is having curve while joining to the
highway and they were proceeding from the road joining to
Kodibag Highway. PW-6 admitted that first he fell to the
ground and the motorcycle dashed against the lorry.
17. PW-8 also admitted in his cross-examination that
the accident occurred at cross road near Kapri temple and
placed his ignorance that the rider of motorcycle lost control
over the vehicle and dashed against the lorry driven by
accused.
18. PW-9 has admitted in his cross-examination that
when the lorry proceeds after overtaking the vehicle normally
the happening on the front side of the lorry cannot be seen.
PW-9 further admitted that there is a cross road near Kapri
temple and it is up gradient one. PW-9 has further admitted
that while crossing the curve road, rider of the motorcycle has
to take note of the vehicle passing on the main road. The lorry
was proceeding straight and it was having no occasion to pass
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CRL.A No. 100031 of 2016
through the curve. If the above referred evidence of material
witnesses is appreciated with the evidence of PW-10,
Investigating Officer, recitals of spot panchanama Ex.P.1 and
the sketch map Ex.P.2, then it would go to show that the rider
of the motorcycle after crossing the curve without noticing the
moving vehicle on the road dashed against the lorry driven by
the accused to its left side.
19. Indisputably, the placement of motorcycle and the
lorry at the place of accident is not found in the photographs
Ex.P.3 to Ex.P.6. The back portion of lorry is only appearing in
Ex.P.7 and Ex.P.8. Therefore, the photographs Ex.P.3 to 8
cannot be of any much assistance to subscribe the recitals of
panchanama Ex.P.1 and the sketch map Ex.P.2 to show that
accused while driving the lorry bearing No.KA-30/J-5445 at the
time of accident has exceeded his way and proceeded to the
extreme right side and dashed against the motorcycle driven by
the accused. The alleged actionable negligence of accused in
driving the lorry bearing No.KA-31/5705 leading to the accident
in question has not been proved beyond all reasonable doubt
out of the material evidence placed on record. The trial Court
has rightly appreciated the principles enunciated in the
decisions referred in paragraph 21 of its judgment.
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CRL.A No. 100031 of 2016
20. Learned counsel for respondent/accused relied on
the decision of Hon'ble Apex Court in STATE OF KARNATAKA
V/S. SATISH [(1998) 8 SCC 493] wherein it has been
observed and held that in the absence of evidence to establish,
"negligence" or "rashness" in driving the vehicle, doctrine of res
ipsa liquitur cannot be applied to convict the accused. The
learned counsel also placed reliance on the decision of the High
Court of Orissa in BADRI PRASAD TIWARI V/S.THE STATE
(CRIMINAL REVISION No.484/1990 decided on
07.07.1993) wherein it has been observed and held that the
mere evidence of vehicle being driven with speed is not
sufficient to establish actionable negligence of accused in
leading to the accident in question.
21. In view of the reasons recorded as above, in my
opinion, trial Court has rightly appreciated the evidence on
record and there are no valid reasons to interfere with the
findings recorded by trial Court. Consequently, proceed to pass
the following:
ORDER
Appeal filed by the appellant/State is hereby dismissed.
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CRL.A No. 100031 of 2016
The judgment of trial Court on the file of Chief Judicial
Magistrate, Karwar, in C.C.No.548/2013 dated 13.10.2015 is
confirmed.
The registry is directed to transmit the records with the
copy of this judgment to trial Court.
(Sd/-)
JUDGE
Jm/-
