Karnataka High Court
Mehesh Pandurang Killekar vs The State Of Karnataka on 12 February, 2024
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CRL.A No. 100121 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 100121 OF 2016 (C)
BETWEEN:
MEHESH PANDURANG KILLEKAR
AGE: 42 YEARS, OCC: DRIVER,
R/O: H.NO.17, 4TH CROSS,
SHIVAJI NAGAR, BELAGAVI.
...APPELLANT
(BY SRI. VITTHAL S. TELI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY CPI TRAFFIC CIRCLE, BELAGAVI,
REPRESENTED BY THE ADDL.SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
...RESPONDENT
Digitally signed
(BY SRI. M.B. GUNDAWADE, ADDL. SPP)
by
SHIVAKUMAR
HIREMATH THIS CRIMINAL APPEAL IS FILED U/SEC.374(2) OF CR.P.C.,
Date:
2024.02.17 PRAYING TO SECURE THE RECORDS IN SESSION CASE NO.246/2014
12:22:26 +0530
ON THE FILE OF THE II ADDL. SESSION JUDGE, BELAGAVI AND TO
SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 01/02/2016 IN SESSION CASE NO.246/2014
PASSED BY THE II ADDL. SESSION JUDGE, BELAGAVI FOR
OFFENCES UNDER SECTION 279, 304 PART II INDIAN PENAL CODE
AND SECTION 185 OF MOTOR VEHICLE ACT, 1988.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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CRL.A No. 100121 of 2016
JUDGMENT
This appeal by the convicted accused directed
against the Judgment of conviction and order of sentence
dated 01.02.2016 passed in S.C.No.246/2014 by the II
Additional Sessions Judge, Belagavi, wherein the learned
Sessions Judge convicted the accused/appellant for the
offences punishable under Section 279, 304 Part (II) of
Indian Penal Code (for short 'IPC'), so also under Section
185 of Motor Vehicles Act, 1988 (for short 'M.V.Act') and
sentenced him to undergo simple imprisonment for a
period of three months for the offence punishable under
Section 279 of IPC, further sentenced to undergo simple
imprisonment for a period of seven years and shall pay a
fine of Rs.25,000/- and in default of payment of fine, shall
further undergo simple imprisonment for a period of six
months for the offence punishable under Section 304 Part
II of IPC. The appellant is also sentenced to undergo
simple imprisonment for a period of six months for the
offence punishable under Section 185 of M.V.Act.
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2. The factual matrix of the prosecution case in
brief are as under -
On 10.09.2013 at about 10.30 p.m, near Niyaz Hotel
on DCC Bank-RTO Circle Road, the accused/appellant
drove his Auto rickshaw bearing registration No.KA-
22/6448 from DCC Bank towards RTO Circle in a rash and
negligent manner, so as to endanger human life and
crashed on Sri. Shivalinga Devendra Kadam (deceased)
and as a consequence of the same he sustained impact on
his head which resulted in his death. The accused was
driving the Auto rickshaw in a public place without holding
valid driving license and that too under the influence of
alcohol. On these background, P.W.1 lodged the complaint
before P.W.7-PSI of respondent Police, against the
accused as per Ex.P.1 which came to be registered in
Crime No.182/2013, against the accused for the offence
punishable under Sections 279, 304A of IPC and Section 3
read with Section 181 and 185 of M.V.Act. Thereafter,
P.W.9 conducted the investigation by drawing spot
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mahazar, so also conducted inquest panchanama on the
dead body of the deceased and subsequently, arrested the
accused and based on his voluntary statement, his Auto
rickshaw was also seized. Pursuant to which, post
obtaining post-mortem report and RFSL report, P.W.10
laid charge-sheet against the accused for the offences
punishable under Sections 279, 304A of IPC and Section 3
and Section 181 and 185 of M.V.Act before the learned
Magistrate.
3. Post submitting the RFSL report by the
Investigation officer, the learned Magistrate took
cognizance of the offence punishable under Sections 304
Part II of IPC and thereby committed the case to the
Sessions Court.
4. After committal of the case before the Sessions
Court, the learned Sessions Court, framed the charges
against the accused for the offence punishable under
Section 279, 304 Part II of IPC and Section 3 read with
Section 181 and 185 of M.V.Act and read over the same to
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the accused. However, accused denied the charges and
claimed to be tried.
5. In order to prove the charges leveled against
the accused, the prosecution in total examined 13
witnesses i.e. P.W.1 to P.W.13, so also got marked 20
documents as Ex.P.1 to Ex.P.20.
6. After completion of the prosecution evidence,
the learned Sessions Judge read over the incriminating
evidences of the material witnesses to the accused as
contemplated under the provisions of Section 313 of
Cr.P.C. Though accused denied the same, he neither chose
to examine any witness on his behalf nor got marked any
documents.
7. After assessment of the oral and documentary
evidence placed before the learned Sessions Judge, the
learned Sessions Judge convicted the accused for the
offence punishable under Section 279,304 Part II of IPC
and Section 185 of MV Act. The correctness and validity of
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the said Judgment is challenged under this appeal by the
appellant/accused.
8. I have heard Sri.Vitthal S. Teli, learned counsel
appearing for the accused/appellant and Sri.
M.B.Gundawade, learned Addl. SPP for the respondent-
State.
9. Learned Counsel For The Appellant vehemently
contends that, in this case the prosecution does not
dispute about the death of the deceased that it is an
accidental one and to that effect, PW.8-Doctor, who
conducted the autopsy over the dead body has opined
that "the death is due to intra cranial hammerage as a
result of head injury sustained by blunt force impact ie.,
road traffic accident". Even otherwise the same is also
undisputed by the Investigation Officer so also PWs.1 and
2, the eye-witness to the incident. Further, according ot
the counsel, the learned Sessions Judge convicted the
accused under Section 304 Part II of IPC only for the
reason that, the accused was under the influence of the
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alcohol and as such, according to the learned Sessions
Judge, accused had knowledge of the consequences that
would follow if he rode the auto rikshaw in the drunken
state of mind. Antithetical to the observation, learned
counsel would submit that, the prosecution has utterly
failed to prove the aspect that, the accused had such
knowledge either by examining the witnesses or by
producing cogent evidences to the effect. Learned counsel
would draw the attention of this Court to Ex.P3-Spot
Mahazar and photograph taken while drawing the same
i.e., Ex.P4 and submits that, the incident has taken place
in a 20 feet width road that too 7 feet from the white
border line which is drawn on the edge of the road
towards the middle of the road. As such, according to the
learned counsel that, it could be easily gathered that the
deceased was negligently standing in the middle of the
road. To enucniate, according to him, the vehicle was
moving from Belgavi DCC Bank towards RTO Office, on the
left side, as per the lane discipline. Moreover, PWs.1 and
2, categorically deposed in their cross-examination that
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the place where the accident caused is a junction point in
which roads from four different places meet and there was
also a traffic signal in the said place, hence, there existe
no plausibility of the riding the vehicle in rash and
negligent manner as alleged by the prosecution. Further,
he contends that, it is also admitted by PWs.1 and 2 that
the deceased was standing on the road. Hence, on
collective reading of all these evidences, according to the
learned counsel, an inference can easily be drawn that,
the accused being traversed in accordance with the lane
discipline and in the absence of conclusive evidence as to
his rash driving also; except for the accident caused, there
are no other evidence either to the rash and negligent
driving or to the knowledge of culpability of the offence. In
countenance to his submission, he would further contend
that, PW.12-doctor who examined the accused, found
three injuries on his body as per Ex.P18-Wound
Certificate, the fact of which, would clearly depict that, the
accused had made every effort to evade the impact or
cause the accident. In such circumstance, according to the
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counsel, deceitful knowledge cannot be attributed to the
offence that has been committed and as such, the learned
Sessions Judge has erred in convicting the accused under
Section 304 part II of IPC.
10. Learned counsel would also contend that, the
prosecution has also failed to prove that, the accused was
under the influence of alcohol at the time of incident. To
substantiate the same, he would contend, the evidence of
PW.12-doctor depicts that, he did not obtain any consent
from the accused before drawing blood samples and he
has also not explained the purpose for drawing such blood
to the accused either. Admittedly, he has not received any
requisition from Investigation Officer to draw the Blood
sample and according to him, the fact that he has drawn
the blood samples and stored the same in glass bottle
without proper permission to do so, seems a far fetched
truth and moreover, doctor -PW.12 himself, admits that,
without properly storing the drawn blood samples, he has
handed over the same to the police, who in-turn have
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handed over the same to RFSL. Accordingly, he would
contend that, in the absence of either permission or
conclusive evidence as to drawing the blood samples from
the accused and also that the blood samples were handed
over in a glass bottle to the police officer without following
the due procedure, would seriously dispute the case of the
prosecution that the accused was under the influence of
alcohol and as such, it cannot be said that, the accused
had the knowledge of the consequences and the
culpability for causing the same can be taken into
consideration.
11. Learned counsel would also contend that, the
place where the accident has taken place was a junction
and as such, had taken place in the presence of many
public individuals. In spite of which, the prosecution has
failed to examine any independent witnesses, apart from
PWs.1 and 2 who are none other than the friends of the
accused and as such, they are the interested witnesses to
the case on hand and much evidentiary value cannot be
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attached to their evidence, unless, they are corroborated
by the evidences of independent witnesses. On these
grounds, he prays for allowing the appeal by setting aside
the judgement of conviction passed by the learned
Sessions Judge.
12. Per contra, the learned Addl.SPP, would in
support of the impugned Order contend that, the Order
under challenge has been passed after meticulously
examining the evidences available before him and as such
he would contend that there arises no reason to interfere
with the well-reasoned judgement. Further, learned
Addl.SPP, in support of the impugned judgement, would
vehemently submit that, on perusal of the evidences of
PWs.1,2 and 8, prosecution has proved the accidental
death of the deceased so also that the said accident has
been caused by the accused under the influence of the
alcohol. As such, the learned Sessions judge has rightly
convicted the accused for the culpability of the same
keeping in mind the guilty knowledge of the accused is
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concerned. As such he prays from dismissal of the appeal
by confirming the impugned order.
13. Having heard the respective parties so also on
perusal of the records made available before this Court,
the question that would arise for my consideration is that-
"1. Whether the judgment under
this appeal suffers from any perversity or
illegality?"
2. Whether the learned sessions
Judge is justified in convicting the accused
under Sections 279,304 Part II of IPC and
under Section 185 of MV Act?"
14. For the sake of convenience, both these points
are taken up together for consideration. Accordingly, this
Court being the appellate Court, it is mandated under the
law to re-appreciate the evidences placed before it.
Accordingly, on careful perusal and re-appreciation of the
evidences, I find;
P.W.1-Sri. Prasad Mahadev Kittur- eye-witness to the
incident, deposed that, on 10.09.2013 at 10.00 p.m,
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himself and Manjunath Kallur-P.W.2 and deceased had
been to Niyaz Hotel for dinner. After the completion of
dinner all the three were standing in front of the said
Hotel. At that time, the accused being the driver of the
Auto rickshaw bearing registration No.KA-22/6448 coming
from DCC Bank towards RTO circle in a rash and negligent
manner, crashed at deceased. Thus, on impact deceased
sustained head injuries. Immediately, he and P.W.2,
shifted the injured/deceased to the Civil Hospital,
Belagavi, where deceased was declared as dead.
According to him, the accused drove his Auto rickshaw in
a rash and negligent manner and under the influence of
alcohol. He informed the said incident to the brother of the
deceased and lodged FIR to the police as per Ex.P.1. he
has also identified the accused and the Auto rickshaw
which is said to be involved in the accident.
P.W.2-Sri. Manjunath Anand Kallur- another eye-
witness to the incident, deposed that on 10.09.2013 at
10.00 p.m., himself, P.W.1 and the deceased had been to
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Niyaz Hotel for dinner. Post completion of dinner, all three
were standing in front of Niyaz Hotel. At that time, the
accused being the driver of the Auto rickshaw bearing
registration No.KA-22/6448 coming from DCC Bank
towards RTO circle in a rash and negligent manner,
crashed at deceased. Thus, deceased fell down due to
injury on his head. Immediately, P.W.1 and himself,
shifted the injured to Civil Hospital, Belagavi, where
deceased was declared as dead. According to him, the
accused has driven the said Auto rickshaw in a rash and
negligent manner under the influence of alcohol. He
identified the accused and the Auto rickshaw.
P.W.3-Sri. Dayananda Devendra Kadam- brother of
the deceased, a hearsay witness, deposed that, on
10.09.2013 at 11.00 p.m., P.W.1 informed over the
telephone about the details and also the events that lead
to the alleged accident, so also the fact that the deceased
was carried to the Civil Hospital where he was declared to
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be dead. He also stated that, the accused was also
brought to the said Civil Hospital, Belagavi for treatment.
P.W.4-Sri. Basavaraj Mallikaja Savanur- witness for
inquest, spot and seizure panchanamas as per Exs.P.2,3
and Ex.P6 respectively.
P.W.5-Sri. Nanda Kishore Arun Srekar- scribe of
Ex.P.1-complaint, deposed that, he received information
on 10.09.2013 at about 10.30 p.m. infront of Niyaz Hotel,
the driver of the Auto rickshaw came in a high speed and
dashed to the deceased. Thereafter, he visited to the Civil
Hospital, Belagavi, where he prepared Ex.P.1 as per the
statement of P.W.1.
P.W.6-Sri. H.S.Nurullah, IMV Inspector, deposed
that, on 11.09.2013, conducted IMV inspection on Auto
rickshaw bearing registration No.KA-22/6448 on the
request of Traffic North P.S., Belagavi and he found
damages on front wind screen and dents on front portion
of Auto Rickshaw. According to him, the accident was not
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occurred due to any mechanical breakdown of the Auto
rickshaw. Accordingly, he issued report as per Ex.P.7.
P.W.7-Sri. Mallappa Hanumantappa Kambale, the
then PSI, deposed that, on 10.09.2013 at about 10.30
p.m., when he was on patrolling duty, he received a
wireless massage through Police Control Room that an
accident has occurred in front of Niyaz Hotel, Belagavi.
Thus, he visited the scene of occurrence and thereafter,
shifted the injured to the hospital. Later P.W.1 lodged
Ex.P1 and the same came to be registered in Crime
No.182/2013. Subsequently, he sent the FIR to the
jurisdictional Magistrate.
P.W.8-Dr. Sukumar Bheemappa Navi, Medical
Officer, conducted autopsy over the dead body of the
deceased on 11.09.2013 at about 10.00 a.m and issued
Post-Mortem report as per Ex.P.9 and opined that 'the
death is due to intra cranial hemorrhage as a result of
head injury sustained by blunt force intact i.e. road traffic
accident'.
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P.W.9-Sri. Satish Shankar Chitagubbi, Investigating
Officer, conducted the investigation by drawing the
Inquest Mahazar as per Ex.P.2 and subsequently, he
obtained post-mortem report as Ex.P.9 and recorded the
statement of witnesses and subsequently obtained IMV
report and handed over the further investigation to
P.W.10.
P.W.10-Sri. Shankar Mallappa Marihal, the then
Inspector, who conducted further investigation in this case
and obtained necessary certificates from the concerned
authority so also laid the chargesheet against the accused
for the aforementioned offences.
P.W.11-Sri. Rachayya Hiremath, the then Police
Constable, based on the wireless massage received by him
on 10.09.2013 at about 10.30 p.m., visited the scene of
occurrence and shifted the accused/appellant to the
District Hospital for treatment. Subsequently, he also
conducted a seizure mahazar of the Auto rickshaw as per
Ex.P.6.
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P.W.12-Dr. Kiran Kumar Vishwanath Gude, Medical
Officer, Belagavi, deposed that, on 11.09.2013 at about
00.15 hours, the accused was brought before him with the
history of road traffic accident at 11.30 p.m., on
10.09.2013. He examined the accused and found three
injuries. He also took 2 ml of blood from his body and sent
it to RFSL, Belagavi for Chemical Examination and issued
Wound Certificate of the accused as per Ex.P.17.
P.W.13-Dr. M.D.Goutam, Assistant Director, RFSL,
Mangaluru, conducted the Scientific Examination of the
blood samples sent for alcohol analyses and accordingly,
gave his opinion as per Ex.P.16.
15. Before adverting to the facts and evidence of
the case on hand, since, the learned Sessions Judge has
convicted the accused for the offence punishable under
304 Part II of IPC in a case of rash and negligent driving
resulting in death of the deceased, by relying on the
culpability of the accused, this Court deems it necessary
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to refer to the provisions of Section 299 and 300 of IPC
which reads as under-
Section 299 - Culpable Homicide-
Whoever causes death by doing an act
with the intention of causing death, or with
the intention of causing such bodily injury
as is likely to cause death, or with the
knowledge that he is likely he is likely by
such act to cause death, commits the
offence of culpable homicide.
Section 300 - Murder - Except in the
cases hereinafter excepted, culpable
homicide is murder, if the act by which the
death is caused is done with the intention
of causing death, or--
Secondly.--If it is done with the intention
of causing such bodily injury as the
offender knows to be likely to cause the
death of the person to whom the harm is
caused, or--
Thirdly.--If it is done with the intention of
causing bodily injury to any person and
the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature
to cause death, or--
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Fourthly--If the person committing the act
knows that it is so imminently dangerous
that it must, in all probability, cause
death, or such bodily injury as is likely to
cause death, and commits such act
without any excuse for incurring the risk of
causing death or such injury as aforesaid.
Exception 1.--When culpable homicide
is not murder.--Culpable homicide is not
murder if the offender, whilst deprived of
the power of self-control by grave and
sudden provocation, causes the death of
the person who gave the provocation or
causes the death of any other person by
mistake or accident.
The above exception is subject to the
following provisos:--
First.--That the provocation is not
sought or voluntarily provoked by the
offender as an excuse for killing or
doing harm to any person.
Secondly.--That the provocation is not
given by anything done in obedience
to the law, or by a public servant in
the lawful exercise of the powers of
such public servant.
Thirdly.--That the provocation is not
given by anything done in the lawful
exercise of the right of private
defence.
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Explanation.--Whether the
provocation was grave and sudden
enough to prevent the offence from
amounting to murder is a question of
fact.
Exception 2.--Culpable homicide is not
murder if the offender in the exercise in
good faith of the right of private defence of
person or property, exceeds the power
given to him by law and causes the death
of the person against whom he is
exercising such right of defence without
premeditation, and without any intention
of doing more harm than is necessary for
the purpose of such defence.
Exception 3.--Culpable homicide is not
murder if the offender, being a public
servant or aiding a public servant acting
for the advancement of public justice,
exceeds the powers given to him by law,
and causes death by doing an act which
he, in good faith, believes to be lawful and
necessary for the due discharge of his duty
as such public servant and without ill-will
towards the person whose death is caused.
Exception 4.--Culpable homicide is not
murder if it is committed without
premeditation in a sudden fight in the heat
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of passion upon a sudden quarrel and
without the offender's having taken undue
advantage or acted in a cruel or unusual
manner.
Explanation.--It is immaterial in such
cases which party offers the provocation or
commits the first assault.
Exception 5.--Culpable homicide is not
murder when the person whose death is
caused, being above the age of eighteen
years, suffers death or takes the risk of
death with his own consent."
16. On a conjoint reading of the above provisions,
it can be summed up that, whenever a Court is brazened
with the question that whether the act committed is a
'culpable homicide or murder', every Court is bound to
approach the case on four basic footings. They are -
i. Primarily, the nature of act committed
by the accused;
ii. Secondly, whether the act committed
by the accused has resulted in the
death of the deceased?
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iii. Thirdly, whether such act has resulted
in 'culpable homicide' as defined under
Section 299 of IPC? And;
iv. Finally, when an inference can be
drawn that such an act amounts to
culpable homicide, whether it fulfils
the mandates of Section 300 of IPC
thereby resulting in culpable homicide
amounting to Murder of the deceased.
In order to further enunciate, when a case of death
is being put forth by the prosecution before the Court,
which gives a rise to the question aforementioned, the
court must see whether the accused has committed such
act having the intention or the knowledge, by inflicting
such injuries on the injured, the same is likely to cause
death of the injured. When this aspect is clear in the mind
of the Court, the Court must then delve upon the fact
that, whether infliction of such injury was done with an
premeditated intention to kill the person or with the
intention and knowledge that infliction of such injuries
would result in death of a person or the accused has
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committed such act knowing fully well, without any
restraint and with all the intention inflicts such injuries
which will in all the manner would result in a death of a
person. In all these circumstances, the Courts are bound
to convict the accused for commission of Murder of such
person or persons concerned. Provided, the Court shall
keep-in-mind that the same cannot be categorised as
murder, if, the same is caused by the accused under grave
and sudden provocation; without any premeditation or
self-control or while doing an act, that is in ordinary
course is said to be lawful in nature (i.e, under the
exceptions to Section 300 of IPC). In such circumstances,
again the said act would fall under the provisions of 299
and the same would be punishable either under Section
304 Part I of IPC when there exists a guilty intention and
under 304 Part II of IPC when there exists a guilty
knowledge.
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17. Keeping in mind, the above settled norms, now
I ponder upon the provision of Section 304A of IPC which
reads as under -
Section 304A. Causing death by
negligence - Whoever causes the death
of any person by doing any rash or
negligent act not amounting to culpable
homicide, shall be punished with
imprisonment of either description for a
term which may extend to two years, or
with fine, or with both.
Hence, on reading of the above provision, it can be
gathered that, the death of a person, if, has been caused
by the act of rash and negligence of the accused and if
such rash and negligence, cannot be interpreted in a
manner prescribed under the provisions of 299 or
exceptions carved out in section 300 of IPC, then the
same shall be punishable under the provisions of Section
304A of IPC.
18. Now, if this interpretation is applied to the case
on hand, even in the present case, on perusal of the
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contents of Ex.P1, the Complaint lodged by PW.1, the
evidence of PW.1 and 2 who are the alleged eye-witness
to the incident, depicts that, PWs.1, 2 and deceased had
been to Niaz Hotel near the spot of incident for the dinner
and thereafter, when they came out of the said restaurant
and the deceased was standing on the road i.e., 7 ft from
the border white line towards the middle of the road. It is
at that point of time, the accused though was travelling in
a right lane discipline, the accident came to be caused;
which, resulted in the death of the deceased. Admittedly,
on cursory examination of the Spot Mahazar-Ex.P3 and
the photograph at Ex.P4, clarifies the position that, the
accident has been caused in the middle of the left side
lane of the said road and to that effect, the defence of the
accused that the deceased himself came to the middle of
the road and which resulted in the impact to the auto
rikshaw accidentally, in my opinion, cannot be said to be a
non-reliable one, for the reason that, the prosecution has
failed to examine as to the fact that, whether the
deceased was under the influence of alcohol or not; even
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during the course of Post-Mortem the said aspect has not
been discussed in order to determine the said aspects. On
the other hand, Doctor-PW12 deposed that, he has drawn
the blood samples from the accused and sent them for
RFSL by collecting them in a glass bottle rather than in a
vacutainer blood collection tube, which makes sure that
the blood samples collected are neither exposed or
clotted. Further, as admitted by the doctor himself, the
drawing of the blood sample and storage of the same was
not conducted in a manner prescribed under the medical
practice/jurisprudence. It is also the fact that, there are
also no sanctions to draw the blood forthcoming from
examination of the records made available before me. In
addition to these aspects, the quantity of blood drawn as
deposed by PW.12 is 2ml, on the other hand PW.13-
Medical Officer, RFSL has deposed that, he has tested the
blood samples from the bottle containing 5ml of blood. In
such scenario, on careful examination of the above
evidences, keeping in mind the laws above discussed, I, in
my careful and meticulous examined opinion that, in the
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case on hand, there seems no such intention or knowledge
on the part of the accused, that is forthcoming on the
records before the alleged incident. As far as the
culpability after the incident is concerned, the accused has
not fled away from the spot, per contra, he himself has
sustained injuries from the said accident and got treated
by the same doctor-PW.12. Hence, even after the incident,
no act of accused can be considered to prove that the
accused had intention or knowledge of culpability of the
offence is concerned.
19. As rightly contend by the learned counsel for
the appellant, the witnesses PW.1 and 2 are being the
friends of the deceased, admittedly are interested
witnesses to the case on hand and it is also deposed by
PWs.1 and 2 that, the alleged incident has occurred in a
junction and in the presence of many people. In spite of
which, the prosecution failed to examine any of the
independent witnesses in the case. Additionally, on careful
perusal of the evidence of PWs 1and 2, have stated that
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the auto rikshaw was driven in a high speed, on the other
hand there is no whisper in their evidence as to the rash
and negligent driving of the accused is concerned. In such
scenario as per the law laid down by the co-ordinate
Bench of this Court As such, without effective
corroboration the evidences tendered by the interested
witnesses, in my opinion, cannot be believed, in order to
convict the accused under 304 Part II of IPC.
20. As far as convicting the accused under Section
304A is concerned, prosecution has relied upon the
evidence of PWs.1 and 2. On perusal of their evidence, it
depicts that, they have deposed as under -
"DUÀ DgÉÆæAiÀÄÄ n.¹.¹ ¨ÁåAPï
PÀqɬÄAzÀ vÁ£ÀÄ Nr¸ÀÄwÛzÀÝ DmÉÆà £ÀA.
PÉJ-22-6448 EzÀ£ÀÄß CwÃ
eÉÆÃj¤AzÀ/ªÉÃUÀ¢AzÀ Nr¹PÉÆAqÀÄ §AzÀÄ
²ªÀ°AUÀ PÀzÀªÀÄ EªÀ¤UÉ rQÌ ºÉÆqɹ
C¥ÀWÁvÀ ªÀiÁrzÀ"
This evidence deposed by both the witnesses would
only go to show that, the accused was riding the auto
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riksha in high speed and impacted the deceased. But there
is no deposition as to the rash and negligence riding of the
accused in riding the auto rikshaw is forthcoming form
their evidence. As such, in my examined view, I am of the
opinion that, mere fact deposed that the accused was
riding the auto rikshaw above the speed limit that is being
prescribed, in itself, would not be sufficient to draw and
inference in the minds of this Court as to the rash and
negligence attributed under Section 304A of Indian Penal
Code. Moreover, even viewed from the angle of Section
279 of Indian Penal Code, it clearly states that a person
can be said to be riding in a rash and negligent manner
only when there exists omission to act in a manner which
a ordinary person guided by his considerations and
consciences would act in a regular course in a busy road.
In the present scenario, except for the fact that, there was
an impact on account of deceased standing in the middle
of left side lane of the road, there exists no other piece of
evidence to shift the guilt on the accused to say that he
was riding rash and negligently. Moreover, except the eye-
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NC: 2024:KHC-D:3078
witnesses who are interested witnesses no others have
been examined by the prosecution to prove that he was
riding rash and negligently. As such, in my examined
opinion, prosecution has failed to prove the basic
ingredient that is required in proving a case under Section
279 and also under Section 304A of IPC. In support of my
view I would rely on the decision of the Co-ordinate Bench
of this Court reported in Jojo Mathew v. State of
Karnataka, 2016 SCC OnLine Kar 9087 wherein,
paragraph Nos. 10,12 and 13 of the Order reads as
under-
"10. As already stated, none of
these important witnesses have spoken
anything about the rash and negligent
driving except stating that the Tata Sumo
vehicle was being driven with speed. Mere
driving of the vehicle at high speed does
not lead to an inference of negligent or
rashness in driving the vehicle and causing
the accident.
12. Prosecution is expected to prove
the guilt of the accused beyond reasonable
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NC: 2024:KHC-D:3078
doubt. The same degree of proof is not
applicable whenever accused wants to
probablise the defence. Just because, the
counsel for the accused did not put the
suggestion to the material witnesses that
the motor cycle was driven in zig-zag and
dashed against the tata sumo vehicle,
during the course of cross-examination,
the defence sought to be probablised on
behalf of the accused could not have been
easily brushed aside. Infact the
prosecution has not discharged the initial
burden in regard to the proof of
foundational facts.
13. In the light of the same, this
Court is of the opinion that the trial Court
has not analyzed the evidence of the
material witnesses in right perspective and
the First Appellate Court, being the final
Court has not reassessed the same in its
right perspective. Glaring illegality is writ
large about the very assessment of the
evidence of material witnesses. Even
otherwise the witnesses have not testified
as to whether the accident took place in
the middle of the road or on the side of
the road. Infact no acceptable evidence is
placed on record to infer the culpable
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negligence or rashness. In this view of die
matter, point No. 1 is answered in the
affirmative."
(Original Emphasis relied)
21. Further, the prosecution in order to prove the
charge under Section 185 of MV Act, relied on the
evidence of PW.13 so also his report at Ex.P16, wherein,
PW.13 has opined that, the accused was under the
influence of alcohol, at the time of causing the said
accident. To enunciate, if the evidence of PW.13 is
examined juxtapose the evidence deposed by the PW.12-
Doctor, who examined the accused and drawn the blood
samples, As discussed supra, PW.12 deposes that he
without obtaining any sanction from the competent
authority, has drawn 2ml of blood from the body of the
accused and in a glass bottle, by non following the
technicalities as to storage of blood has forwarded the
same to PW.13 through investigation officer who in-turn
deposes that, he had received 5ml of blood in a glass
bottle and when he had tested the same there existed
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NC: 2024:KHC-D:3078
alcohol contents in the blood. Hence, if both the evidences
deposed are read conjunctively, it is evident that, the
quantity of blood sent to the RFSL and received by RFSL
are totally different as such there arises a doubt in the
mind of the Court that whether the blood test made was
on the same blood drawn from the body of the accused in
order to claim that he is intoxicated while riding.
22. In view of the discussion made herein above, I
am of the considered opinion that, learned Sessions Judge
has erred in convicting the accused for the
aforementioned offences and accordingly, I answer the
above raised points in negative and proceed to pass the
following -
ORDER
i. The appeal is allowed;
ii. The Judgment and order of sentence
dated 01.02.2016 passed in
S.C.No.246/2014 by the II Additional
Sessions Judge, Belagavi is set aside.
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iii. The accused is acquitted for the
offences punishable under Sections
279, 304 Part II of IPC and Section
185 of M.V.Act.
iv. The bail bond executed by the accused
stands cancelled.
v. The fine amount paid, if any, by the
accused shall be refunded to him on
proper identification.
Sd/-
JUDGE
SVH
