State Of Karnataka vs Sri Thaslim Ahammed
2023 Latest Caselaw 7153 Kant

                          1            CRL.A.NO.935/2013



   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF OCTOBER, 2023

                       BEFORE

           THE HON'BLE MS.JUSTICE J.M.KHAZI

          CRIMINAL APPEAL NO.935 OF 2013

BETWEEN:

STATE OF KARNATAKA,
BY CIRCLE INSPECTOR OF POLICE,
TRAFFIC POLICE STATION,
SHIVAMOGGA.
                                          ...APPELLANT
(BY SRI. K.NAGESHWARAPPA, HCGP)

AND:

SRI. THASLIM AHAMMED,
S/O ABDUL SALAM,
AGED 51 YEARS,
DRIVER OF THE LORRY
BEARING REGISTRATION
NO.CTX-9007, R/O NEW MANDLI
N.T.ROAD, R/O KUMBARA KERI
BHARMAPPA NAGARA, M.K.K.ROAD,
SHIVAMOGGA - 577 201.
                                      .....RESPONDENT
(BY SMT.SHARADA N., ADVOCATE)

    THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) OF THE CODE OF CRIMINAL PROCEDURE PRAYING
TO a) GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT
AND ORDER OF ACQUITTAL DATED 17.06.2013 PASSED BY
THE II ADDL. CIVIL JUDGE AND JMFC, SHIVAMOGGA IN
C.C.NO.799/2012, ACQUITTING THE RESPONDENT OF THE
OFFENCES PUNISHABLE UNDER SECTIONS 279 AND 304(A)
OF IPC AND; b) SET ASIDE THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 17.06.2013 PASSED BY THE LEARNED II
ADDL. CIVIL AND JMFC, SHIVAMOGGA IN C.C.NO.799/2012,
ACQUITTING    THE   RESPONDENT     OF   THE   OFFENCE
                                     2             CRL.A.NO.935/2013



PUNISHABLE UNDER SECTIONS 279 AND 304 (A) OF I.P.C.
AND; c) BE PLEASED TO CONVICT THE RESPONDENT ABOVE
NAMED FOR ALL THE OFFENCES FOR WHICH HE WAS
CHARGED IN ACCORDANCE WITH LAW, IN THE INTEREST OF
JUSTICE AND EQUITY.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED    ON    11.07.2023, COMING   ON   FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                           JUDGMENT

This appeal filed under Section 378(1) and (3) of

Cr.P.C. is by the State challenging the impugned

judgment and order dated 17.06.2013, in

C.C.No.799/2012 on the file of II Addl.Civil Judge and

JMFC., Shivamogga, whereby the trial Court acquitted

the accused for the offences punishable under Sections

279 and 304-A of I.P.C.

2. For the sake of convenience, the parties are

referred to by their rank before the trial Court.

3. Based on the complaint filed by Sri.V.Suresh,

and after completing investigation, charge sheet came to

be filed against accused alleging that on 25.01.2012, at

8.30 p.m., deceased Venkatesh was proceeding on his 3 CRL.A.NO.935/2013

Bajaj M80 vehicle bearing registration No.KA-17/H-8088

in front of Pooja Medicals on N.T.Road, Shivamogga,. At

that time accused being the driver of lorry bearing

registration No.CTX-9007 came in a high speed in a rash

or negligent manner from New Mandli side and dashed

against the Bajaj M80. As a result of the accident,

deceased Venkatesh fell down on the road and the right

front and rear tier of the lorry ran over him and he died

on the spot.

4. Accused entered appearance and contested

the matter. He pleaded not guilty to the charges leveled

against him and claimed trial.

5. In support of prosecution case, 7 witnesses

are examined as PWs-1 to 7 and Exs.P1 to 11(a) are

marked for the prosecution.

6. During the course of his statement, accused

has denied the incriminating evidence.

7. Vide the judgment and order dated

17.06.2013, the trial Court acquitted the accused holding 4 CRL.A.NO.935/2013

that the prosecution has failed to prove the charges

leveled against him beyond reasonable doubt.

8. Being aggrieved by the same, the State has

filed this appeal contending that the impugned judgment

and order is contrary to law, facts and probabilities of the

case and liable to be set aside. The trial Court has erred

in acquitting the accused. The reasons assigned by the

trial Court are not proper. PW-1 is an eye witness, PW-2

is a spot mahazar witness and PW-3 is the complainant.

He filed the complaint after coming to know about the

accident. PW-6 is the motor vehicle inspector and PWs-5

and 7 are Investigating Officers. All of them except PW4

have supported the prosecution case. In the light of the

same, the trial Court has erred in acquitting the accused

giving him benefit of doubt and that there was

contributory negligence on the part of the deceased.

Even otherwise the impugned order passed by the trial

Court suffers from legal infirmity and prays to allow the

appeal, set aside the impugned judgment and order,

convict the accused and sentence him appropriately.

5 CRL.A.NO.935/2013

9. On the other hand, learned counsel appearing

for the accused has supported the impugned judgment

and order contending that on appreciation of oral and

documentary evidence, the trial Court has come to a

correct conclusion in acquitting the accused and prays to

dismiss the appeal.

10. Heard elaborate arguments of both sides and

perused the record.

11. The State has challenged the impugned

judgment and order contending that despite the material

witnesses supporting the prosecution case, the trial Court

has acquitted the accused and it is a fit case for

interference by this Court.

12. On the other hand, the learned counsel for

accused supported the judgment and order and

submitted that it is doubtful that PW4 is an eyewitness to

the incident. At least his presence at the scene of

occurrence is not spoken to by any other witnesses. It

has come in the evidence that before the incident, the 6 CRL.A.NO.935/2013

deceased visited the medical shop and the investigating

officer has not chosen to cite any of the inmates. Any of

the person working in the said shop, would have

supported the prosecution case and in the absence of fair

investigation, the trial Court has rightly rejected the

prosecution case and acquitted the accused. There are no

justifiable grounds to interfere with the impugned

judgment and order and pray to dismiss the appeal.

13. PW1-Armugam and PW4-Manjunatha are cited

as eyewitnesses to the incident. PW1-Armugam has

supported the prosecution case and deposed that at the

time of incident, he and PW4-Manjunatha were standing

in Pooja Medicals. He saw deceased going on his

motorbike from bus stand side towards a new Mandli

side. At that time, lorry driven by the accused in a high

speed, in a rash or negligent manner came from

Theerthahalli side and proceeding towards bus stand side

and in order to overtake another lorry, went to the wrong

side of the road and dashed against the motorcycle of

deceased. As a result of the accident, deceased died on 7 CRL.A.NO.935/2013

the spot. Since the deceased was from his area, he

informed the son of the deceased.

14. During his cross-examination, PW1 has

claimed that before the investigating officer, he has

stated that while overtaking another lorry, accused came

to the wrong side of the road and dashed against the

motorcycle of deceased. However, in his statement

before the investigating officer, this fact is not

forthcoming. It is clearly an improvement made before

the Court.

15. PW4-Manjunatha who is cited as another

eyewitness has not supported the prosecution case and

denied that he has seen the accident. He specifically

deposed that he came to the spot after coming to know

about the accident. Though he is treated as hostile and

cross-examined by the prosecution, nothing worthy is

elicited that would be of some help to improve the case

of the prosecution. Not even a suggestion is made to him

that when the incident took place, he was present at 8 CRL.A.NO.935/2013

Pooja Medicals along with PW1-Armugam. This would

have supported the testimony of PW1.

16. During the cross-examination of PW1, the

defence has elicited that deceased was proceeding from

Pooja Medical. The defence has taken a specific defence

that deceased used to be intoxicated, which suggestion is

denied by PW1. He has expressed ignorance as to what

deceased purchased from the medical shop. In fact, the

investigating officer is also cross-examined on this

aspect, wherein he has deposed that according to him

deceased had left from Pooja Medicals. If really deceased

visited the medical shop and accident took place after he

left the medical shop, the investigating officer ought to

have examined any of the persons from the medical

shop. It could have supported the testimony of PW1-

Armugam.

17. If deceased was coming from Pooja Medicals,

then in the sketch, it is wrongly shown that he was

coming from bus stand side. The defence has taken a

specific plea that since deceased was entering the main 9 CRL.A.NO.935/2013

road from a smaller road, he was supposed to stop, wait

and watch vehicle coming from both sides and then enter

the main road, and on the other hand, he suddenly

rushed to the main road, resulting in the accident. In the

light of the answer elicited during the cross-examination

and the fact that the evidence of PW1-Armugam is not

supported by any other witness, more particularly PW4-

Manjunatha, the trial court has rightly acquitted the

accused on the ground that the prosecution has failed to

prove its case beyond reasonable doubt. The findings

given by the trial Court is consistent with the evidence

brought on record. In the result, there are no justifiable

grounds to interfere with the impugned judgment and

order. Consequently, the appeal fails and accordingly it is

liable to be dismissed. Hence the following:

ORDER

Appeal filed by the State u/sec.378(1) and

(3) of Cr.P.C. is dismissed.

The impugned judgment and order of the

trial Court is hereby confirmed.

10 CRL.A.NO.935/2013

Registry is directed to send back the trial

Court records with copy of this judgment

forthwith.

Sd/-

JUDGE

RR/CLK