State by Nyamathi Police, Rept. by Public Prosecutor vs Malleshappa

A.N. Venugobala Gowda, J. - This is State appeal against the Judgment dated 08.12.2009 passed in Crl. A. 52/2009 by the II Addl. Dist. and Sessions Judge, Davangere. By the said Judgment, the Judgment of conviction and Order of sentence dated 04.04.2009 passed in C.C. No.486/2007 by the JMFC, Honnali was set aside and the respondent-accused was acquitted of the charge under Sections 279, 338 and 304A of IPC and the bail bonds were cancelled.

The case of the prosecution is, that on 23.05.2007, at about 4.30 p.m. on Arundi to Nyamati Road, in Honnali Taluk, the accused being the driver of bus bearing registration No. KA-20/D-4444 drove the same in high speed, in rash and negligent manner and hit a moped bearing registration No. KA-17/L-4372 and as a result of the accident, the rider of the moped vehicle and its pillion rider (PW-8) sustained grievous injuries and on the following day, the rider of the moped Sri. Holeyappa succumbed i.e., while undergoing treatment in an hospital at Shivamogga. On the basis of a complaint vide Ex.P1, lodged by PW-1, a case in Crime No. 64/2007 was registered by the appellant, on 23.05.2007, for the offences punishable under Sections 279 and 337, IPC. In view of the death of Holeyappa, the offence under Section 304A, IPC was included.

After conducting investigation, PW-15-T.S. Murugannavar, filed the charge-sheet for the offences punishable under Sections 279, 338 and 304A, IPC. In response to the summons issued by the learned Magistrate, the accused appeared and denied the charge and claimed to be tried. In order to prove its case, the prosecution examined 15 witnesses and marked 7. documents. Statement of the accused, under S 313, Cr.P.C. was recorded and he denied the incriminating evidence appearing against him in the depositions of the prosecution witnesses. He further stated i.e., when examined under Section 313 Cr.P.C., that the deceased came in rash and negligent manner and hit his moped to the bus and as such the accident in question occurred.

Having regard to the submissions made by the learned advocates and on perusal of the record, learned Magistrate raised the following points for consideration:

"(1) Whether the prosecution proves beyond all reasonable doubt that on 23.05.2007 at 04.30 p.m. at Arundi-Nyamathi Road, Honnali Taluk accused being the driver of Krishna Bus bearing Reg. No. KA-20/D-4444 drove the same in a rash and negligent manner from Arundi towards Nyamathi and dashed against the T.V.S Moped bearing Reg.No. KA-17/L-4372 which was coming from the opposite side and the rider-Holeyappa and pillion rider Smt. Geetha have sustained grievous injuries and on 24.05.2007 at about 02.00 p.m. Holeyappa succumbed to the injuries at Nanjappa Hospital, Shimoga and thereby accused has committed the offences punishable u/S. 279, 338 and 304-A of IPC?

(1) For what orders?"

By assessing the evidence of the prosecution witnesses, in his own way, learned Magistrate found the accused guilty of the charged offences and imposed the sentence. The accused was directed to undergo S.I. for 3 years and pay fine of Rs. 500/- and in default, to undergo S.I. for 15 days for the offence under Section 279, IPC. For the offence under Section 338 IPC, the accused was convicted and sentenced to undergo S.I. for 3 months and pay fine of Rs. 500/- and in default, to undergo S.I. for 15 days. For the offence under Section 304A, IPC, the accused was convicted and directed to undergo S.I. for 6 months and pay fine of Rs. 1,000/- and in default, to undergo S.I. for 30 days.

Feeling aggrieved, the accused filed Crl. A.No. 52/2009 in the Sessions Court at Davangere. Considering the rival contentions and upon perusal of the materials brought on record during the trial stage, learned II Addl. Dist. and Sessions Judge, Davangere, raised the following points for consideration:

" 1. Whether the prosecution proves beyond all reasonable doubt that on 23-05-07 at about 4.30 p.m. the alleged accident was occurred on Arundi Nyamathi Road due to the rash and negligent driving of the offending driver and rider of the T.V.S mopped have sustained severe injuries and its rider Holiyappa died due to the accidental injuries and another injured Smt. Geetha had sustained grievous injury on account of such rash and negligent act of the offending bus?

Does the appellant-accused proves that the findings of the learned trial Court on points raised for its consideration are illegal, perverse and arbitrary one and the same are liable to be set aside by this Court sitting in appeal and that he is entitled for an order of acquittal from he charges punishable U/Ss. 279, 338 and 304A of I.P.C?

What order?"

Upon appreciation of the rival contentions and on independent assessment of the evidence, the learned Sessions Judge having found, that due to the action of the deceased in riding his motorcycle in rash and negligent manner and entering on the wrong side of the road, the accident in question has occurred, which material aspect was not correctly noticed and appreciated by the learned Trial Judge, the finding recorded by the learned Trial Judge was held to be erroneous and as a consequence, the appeal was allowed and the impugned Judgment and the Order therein was set aside and the accused was acquitted in respect of the charged offences and the bail bonds were cancelled.

Sri. B. Visweswaraiah, learned HCGP, contended that the Sessions Judge has committed error in interfering with the judgment of conviction and in passing the judgment of acquittal. He submitted that the prosecution having placed on record of the case, credible evidence with regard to the rash and negligent driving of the bus by the accused and the causing of accident in question, which resulted in death of Sri. Holeyappa and injury to PW-8, interference with finding of fact being uncalled for and the finding recorded being perverse, the impugned Judgment is liable to be set aside. He submitted that PWs 1, 6 and 8 are the eye witnesses and have spoken about the accused having driven the bus in rash and negligent manner, resulting in the occurrence of the accident and sustaining of grievous injury by Holeyappa and also PW-8. He submitted that the appreciation of evidence by the learned Judge of the Court below being improper, as importance has been given to minor contradictions and omissions which have no bearing on the main matter, the impugned Judgment is liable to be set aside.

Sri. M.E. Nagesh, learned advocate appearing for the respondent, on the other hand submitted that there being correct appreciation of evidence by the learned Appellate Judge and the finding recorded being not perverse, no interference with the impugned Judgment is warranted. Learned counsel pointed out from Ex.P2, which has on its reverse side, the sketch of the scene of occurrence, showing the bus being on the correct side and in fact its left wheels having entered the mud road, submitted that the accident in question has occurred only on account of the rash and negligent driving of the moped by its rider-Holeyappa. Learned counsel submitted that the prosecution having falsely implicated the respondent, the learned Appellate Judge is justified in passing the judgment of acquittal. Learned counsel made submissions in support of the finding recorded by the Court below.

PW-1 is the complainant. PWs 6 and 7 are the alleged eye-witnesses and PW-8 is the pillion rider of the moped. Ex.P2 is the spot mahazar prepared by the I.O. in the presence of the panchas. The Court below has noticed in detail, the evidence of the said material witnesses. The Court below has examined their statements with reference to the Ex.P2, containing the sketch of the scene of occurrence. A perusal of the sketch appearing in Ex.P2 makes it clear that the bus driven by the accused is standing on the extreme left side of'' the road i.e., while coming from Arundi towards Nyamathi. Its left wheels were found on the mud road and the right wheels are on the tar road, while going towards Nyamathi. The moped which the deceased was riding was moving from Nyamathi side to Arundi i.e., in the opposite direction. In Ex.P2, in front of the parked bus, the place of the accident is shown in red colour. On the left side of the road i.e., right side of the bus shown in Ex .P2, there is sufficient tar road for the moped to move towards Nyamathi. There is sufficient tar road for the moped to pass through towards Nyamathi. The driver of the bus has taken the bus to its extreme left side and even to the mud road. Still the moped, coming from the opposite direction has hit the bus i.e., on the extreme right side of the bus. The said fact having not been correctly noticed and the evidence assessed, learned Magistrate had erroneously held the accused guilty of the charged offences and imposed the sentence. Learned Appellate Judge having noticed from Ex.P2, the position of the vehicles at the accident spot and having correctly analysed the evidence of material witnesses and finding that the bus had moved 1 km. only and at a moderate speed, i.e., within five minutes� time, which cannot be held to be rash and negligent driving, has passed the impugned judgment of acquittal. The finding recorded by the learned Appellate Judge being with reference to the evidence which has been brought on record of the case by the prosecution and there being neither any misreading of evidence nor omission to take note of the material evidence, the finding recorded cannot be termed as perverse

It is trite that normally Appellate Court should not interfere with the judgment of acquittal passed by the Court below unless there are substantial and compelling reasons. In the instant case, no such circumstance is shown to exist by the learned HCGP.

In the result, appeal being devoid of merit is dismissed.