State By Town Police Harihar vs Imtiyaz Ahamed
2023 Latest Caselaw 7470 Kant

                                 -1-
                                          CRL.A No. 429 of 2014



    IN THE HIGH COURT OF KARNATAKA AT BENGALURU
          DATED THIS THE 2ND DAY OF NOVEMBER, 2023
                              BEFORE
               THE HON'BLE MR JUSTICE S RACHAIAH
             CRIMINAL APPEAL NO. 429 OF 2014 (A)


BETWEEN:

    STATE BY TOWN POLICE
    HARIHAR - 577 601.
                                                     ...APPELLANT

(BY SRI. RAHUL RAI K, HCGP)


AND:

    IMTIYAZ AHAMED
    S/O ABDUL SATTAR SAB
    AGED 44 YEARS
    DRIVER OF MARUTHI OMNI VAN BEARING
    NO. KA-17/M-2726
    RESIDENT OF BAHAR MAKAN
    HARIHAR - 577 601.
                                                   ...RESPONDENT

(BY SRI. V B SIDDARAMAIAH, ADVOCATE)


        THIS CRL.A FILED U/S.378(1) (3) OF CR.P.C PRAYING TO SET
ASIDE    THE    JUDGMENT   AND    ORDER   OF   ACQUITTAL   DATED
11.03.2014 PASSED BY THE COURT OF THE PRINCIPAL CIVIL JUDGE
AND J.M.F.C., HARIHAR IN C.C.NO.433/2012 ACQUITTING THE
RESPONDENT/ACCUSED OF THE OFFENCES PUNISHABLE UNDER
SECTIONS 279 AND 304(A) OF IPC AND ETC.,


        THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED
ON 10.08.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
                                 -2-
                                         CRL.A No. 429 of 2014



                           JUDGMENT

1. This appeal is filed by the appellant-State being

aggrieved by the judgment and order of acquittal dated

11.03.2014 in C.C. No.433/2012 on the file of the Principal Civil

Judge and JMFC, Harihar, wherein the Trial Court has acquitted

the accused for the offences punishable under Sections 279 and

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

2. The rank of the parties in the Trial Court henceforth

will be considered accordingly for convenience.

Brief facts of the case :

3. On 27.02.2012 at about 5.00 p.m., the deceased

Mudenur Pakirappa was sitting on the dais (Katte) of Hirekerur

Durgamma Temple of Sunagar Oni of Harihar City. It is stated

in the complaint that he was sitting on the dais by stretching

his leg towards the land. At that time, the accused being the

driver of the Maruthi Omni van bearing registration No.KA-

17/M-2726 drove the said vehicle in a rash and negligent

manner proceeding towards Kailas-Imam Nagar Road, dashed

against the deceased Pakirappa, as a result, the said Pakirappa

sustained injuries to his leg. Thereafter CW2 - Raghavendra

and CW3 - Basavaraj have shifted Pakirappa to C.G. Hospital,

CRL.A No. 429 of 2014

Davanagere for treatment. After taking treatment from C.G.

Hospital, Davanagere, he was discharged from the Hospital on

15.03.2012. However, he died on 23.03.2012 at 3.00 p.m. On

the same day, Smt.Sarojamma who is the wife of the deceased

examined as PW.2 lodged a complaint before the jurisdictional

police and the jurisdictional police have registered a case in

Crime No.27/2012 for the offences punishable under Sections

279 and 337 of the IPC. After the death of the said Pakirappa,

the provision under Section 304-A was incorporated. The

jurisdictional police have conducted the investigation and

submitted the charge sheet.

4. To prove the case of the prosecution, the prosecution

examined in all seven witnesses as PWs.1 to 7 and got marked

seven documents as Exs.P1 to P7. The Trial Court after

appreciating oral and documentary evidence on record, opined

that the prosecution has not proved the case and acquitted the

accused.

5. Heard Sri. Rahul Rai K., learned High Court

Government Pleader for the appellant-State and Sri. V.B.

Siddaramaiah, learned counsel for the respondent and perused

the material on record.

CRL.A No. 429 of 2014

6. It is the submission of the learned HCGP for the

appellant-State that the findings of the Trial Court in recording

the acquittal in spite of the evidence of the eyewitnesses, is

erroneous and perverse. Even though the negligence and

rashness is proved by the prosecution, the said aspect has not

been considered properly by the Trial Court. Consequently, the

impugned judgment is passed, which is required to be set-

aside.

7. Further, the learned High Court Government Pleader

submits that PW.1 being an eyewitness, has identified the

accused who was driving the Maruthi Omni Van as on the date

of the accident. PW.4 who was the owner of the said vehicle

has stated in his evidence that the accused was a driver of the

said vehicle as on the date of commission of offence. The said

aspect should not have been considered by the Trial Court

while appreciating the evidence. Appreciating the evidence

without proper application of mind certainly leads to passing of

impugned judgment. Therefore, re-appreciation is required by

the Appellate Court. Making such submission, the learned HCGP

for the appellant-State prays to allow the appeal.

CRL.A No. 429 of 2014

8. Per contra, the learned counsel for the respondent

vehemently justified the findings of the Trial Court and

submitted that though PW.1 claims that he was present at the

place of accident and in fact, he being a eyewitness to the

accident, has not taken initiation to lodge the complaint on the

same day and also not accompanied the injured when the

injured was shifted to hospital. Therefore, the evidence of PW.1

cannot be considered as eyewitness to the incident. The Trial

Court has rightly appreciated the evidence on record and

passed the judgment and order of acquittal which requires no

interference. Making such submission, the learned counsel for

the respondent prays to dismiss the appeal.

9. Having heard the learned counsel for the respective

parties and perused the evidence of all the witnesses, this court

being the First Appellate Court, it is necessary to re-appreciate

the evidence of all the witnesses to conclude as to whether the

Trial Court recorded the acquittal is relevant or not.

10. PW.1 stated to be the eyewitness to the incident, has

stated that the accident took place on 27.02.2011, however,

the actual date of accident was 27.02.2012. There are

inconsistencies in the evidence of PW.1 in respect of his

CRL.A No. 429 of 2014

presence at the spot. In the examination-in-chief, he states

that he was present and talking with injured Pakirappa,

however, in the cross-examination, he has stated that he has

seen the accident 15 to 20 meters away. The manner in which

he attended the situation appeared that he was not present at

the spot and he has not seen the accident. However, he is

depicted as if he was present and an eyewitness to the

incident. Therefore, his evidence as an eyewitness cannot be

accepted.

11. PW.2 being the wife of the deceased Pakirappa is not

eyewitness to the incident and she has not stated the name of

the driver of the said offending vehicle. PW.3 is witness to

spot panchanama. The said panchanama is marked as Ex.P1,

he has turned hostile.

12. PW.4 the owner of the Maruthi Omni Van has stated in

examination-in-chief that the accused was the driver of the said

vehicle on the date of the accident. However, in the cross-

examination, he has stated that his Maruthi Omni Van was

taken by the accused, however, he did not know who was

driving the vehicle.

CRL.A No. 429 of 2014

13. PW.5 working as PSI stated to have conduced the

investigation partly. Thereafter, PW.6 completed the

investigation and submitted the charge sheet. PW.7 also

witness to the spot panchanama which is marked as Ex.P1

supported the case of the prosecution regarding the accident.

14. There is a dispute regarding the accident which

occurred. PW.2 states that soon after the incident, she visited

the hospital where the deceased was taking treatment.

However, complaint came to be registered on 28.02.2012 by

the injured. In the said complaint, the name of the driver has

not been mentioned. If the evidence of PW.1 is believed to be

true, he should have stated the name of the driver and should

have seen that his name should be mentioned in the FIR.

Therefore, the alleged accident appears to be untrue. The Trial

Court rightly appreciated the evidence and recorded the

acquittal which is appropriate.

15. The identity of the driver of the said Maruthi Omni van

has not been proved by the prosecution. Even though Ex.P1

which is spot mahazar indicates that the Maruthi Omni Van was

found at the spot, PWs.3 and 7 being witness to the Ex.P1 have

turned hostile and not supported the case of the prosecution.

CRL.A No. 429 of 2014

Therefore, the seizure of the said Maruthi Omni vehicle has not

been proved. Considering the inconsistency and the

contradiction in respect of alleged accident, the Trial Court has

rightly recorded the conviction which requires no interference.

16. In the light of the observation made above, I proceed

to pass the following:

ORDER

The appeal filed by the appellant-State stands dismissed.

Sd/-

JUDGE

SNC/UN