State of Karnataka - Appellant @HASH Sadiq

Budihal R.B., J. - The judgment and order of acquittal dated 9th July, 2010 passed by the FTC-I/II Bijapur in Criminal Appeal No. 30 of 2008 is called in question in this appeal preferred by the State.

The facts of the case that the complaint was lodged by PW 1 one Mr. Yatawari Shahani alleging that himself and other persons went nearby the shop of Sairaj Marbles in order to load the marble stones in the vehicle. As per the complaint averments the incident took place on 30.3.2006 when they were all loading the marble stones in the 407 vehicle bearing No. KA-29- 6177 at about 10.30 a.m. It is the allegation of the complainant that at that time the accused who was the driver of the said vehicle without giving prior intimation started the lorry and took the lorry front as well as backside and in that process the marble stones which were already loaded in the said vehicle fell on the complainant as well as on Gajendra Shahani (the deceased) and they sustained injuries. Thereafter the complainant as well as the deceased were shifted to BLDE hospital at Bijapur and Gajendra (the deceased) was shifted to the hospital of Dr. Nagoor for higher treatment. It is mentioned in the complaint that the said incident is because of the negligence on the part of the driver of the said vehicle and hence requested the police to take action against the respondent/accused. On the basis of said complaint, a case came to be registered in Adrash Nagar police station Bijapur crime number 13 of 2006 for the offences punishable under sections 337 and 338 of IPC, but subsequently the injured Gajendra expired, therefore, requisition was made by the police to insert the offence under section 304-A of IPC also in the said case.

Then the Investigating Officer conducted the investigation and filed charge-sheet against the respondent/accused for the offences punishable under sections 337,338 and 304-A of IPC.

In order to prove its case the prosecution in all examined 8 witnesses as PWs 1 to 8, produced 6 documents as Ex.P-1 to P-6 and also produced 1 two material objects as MOs 1 and 2 before the Trial Court.

After considering the entire materials and evaluation of the aspects involved in the case, ultimately the Trial Court convicted the accused for the offences punishable under sections 338 and 304-A of IPC and sentenced him to undergo imprisonment for six months and to pay fine of Rs. 1,000/- in default undergo further simple imprisonment for 60 days for the offence under section 304-A of IPC, so also he has been imposed with fine of Rs. 1,000/- and in case of default of the payment of fine, he has to undergo simple imprisonment for sixty days for the offence punishable under section 338 of the IPC.

Being aggrieved by the judgment and order of conviction passed by the Trial Court, the Respondent/accused preferred appeal before the 1st appellate Court in Criminal Appeal No. 30 of 2008. The 1st appellate Court after re-appreciation of the entire materials, allowed the appeal and set aside the order of conviction passed by the Trial Court. Being aggrieved by the judgment and order of acquittal, acquitting the accused for the offences under sections 337, 338 and 304-A of IPC, the State has come in appeal before this Court challenging the legality and correctness of the judgment of the 1st appellate Court on the grounds as mentioned in the appeal memorandum.

I have heard the arguments of learned counsel appearing for the Respondent/accused, so also the arguments of learned High Court Government Pleader for the Appellant/State.

Learned counsel appearing for the Respondent/accused during the course of his arguments made the submission that the 1st appellate Court has properly appreciated entire materials and rightly set aside the judgment and order of conviction passed by the Trial Court and thereby acquitted the Respondent/accused. He submitted that after re-appreciating the entire materials the 1st appellate Court come to such conclusion. No illegality has been committed by the 1st appellate Court, nor there is perverse or capricious view taken and hence the learned counsel submitted that there is no merit in the appeal preferred by the State and submitted to dismiss the same.

Per contra the learned High Court Government Pleader for the appellant/State during the course of arguments made submission that there are eyewitnesses to the incident. PW 1 the complainant himself is the injured witness and PWs 2 and 3 were also present at the spot when the incident took place and they have personally witnessed the incident. He made further submission that PW 7 is the owner of the Sairaj Marble shop for which shop the marble stones were loaded into the 407 vehicle. He submitted that even PW 7 in his evidence consistently deposed that he has seen the driver of the said vehicle started the vehicle even though the work of loading was still going on and it was not completed and the driver of the said vehicle took the vehicle front as well as backside and in that process the stone slabs fell on the complainant PW 1 so also on the deceased Shahani. Hence, the learned High Court Government Pleader made the submission that this was properly appreciated dated by the Trial Court and Trial Court rightly comes to the conclusion in convicting the accused person. He submitted that the appeal was preferred, the 1st appellate Court without properly appreciating the materials placed on record so also the judgment and order of conviction passed by the Trial Court wrongly proceeded to allow the appeal and acquitted the respondent/accused for the said offences. He made the submission that the 1st appellate Court considered only the minor discrepancy in the evidence of prosecution witnesses and only on that basis comes to the conclusion that the prosecution has not proved its case beyond all reasonable doubt and gave the benefit of doubt to the accused and thereby acquitted him from the offences. Hence he submitted that the judgment and order of acquittal passed by the 1st appellate Court is not in accordance with the materials placed on record. Hence he submitted to allow the appeal and to set aside the judgment and order of acquittal passed by the 1st appellate Court and confirm the judgment and order of conviction passed by the Trial Court.

I have perused the grounds urged in the appeal memorandum, oral evidence of the prosecution witnesses, so also the documents produced in the case. I have perused the judgment and order of conviction passed by the Trial Court and the judgment and order of acquittal passed by the 1st appellate Court.

Looking to the case of the prosecution the deceased Gajendra Sahani, complainant PW 1 Yatawari Shahani, PWs 2 and 3 had been to the shop of PW 7 to load the marble stones into the 407 vehicle at about 10.30 a.m. on 30.3.2006. They were loading the stone slabs into the said vehicle. It was not completed still they were in the process of loading and at that time the respondent/accused without any prior intimation to the complainant, deceased and PWs 2 and 3 all of a sudden started the vehicle and took the vehicle front as well as backside. Because of that reason all the stone slabs in the vehicle fell on complainant as well as on the deceased and they sustained injuries. Immediately they were shifted to BLDE hospital at Bijapur and Gajendra Shahani was shifted to Dr. Nagoor hospital for higher treatment, wherein he expired. Hence it is the case of the prosecution that the said act is because of the negligent act on the part of the respondent driver of the said vehicle and thereby complainant requested to take action against the respondent/accused. It is no doubt true the Trial Court after assessing the materials, convicted the accused person holding that the prosecution was able to prove the offences as against the respondent/driver of the said vehicle and convicted him. But however, the 1st appellate Court by allow ing the appeal reversed the judgment and conviction and acquitted the respondent/accused from all the charges levelled against him. Hence the State is before this Court in this appeal.

Let me refer to the relevant portion in the evidence of prosecution witnesses to know whether the prosecution proved its case beyond all reasonable doubt so as to convict the accused person as has been done by the Trial Court.

PW 1 deposed in his evidence in the examination-in-chief that on 30.3.2006 himself, Dharmendra, Satyanarayan and Gajendra (the deceased) were together working and on that day they all were loading the stone slabs into the lorry. The accused before the Court was driver of the said lorry. In the morning at 10.00 a.m. when loading of the marble stone slabs was still going on the respondent/accused started the lorry and took front and backside. In that process the stones which were already loaded in the vehicle fell down on the stomach portion of the complainant and also on his upper limbs. He sustained injuries. The stone slabs also fell on Gajendra Shahani. He also sustained injuries. The people who gathered there shifted them to BLDE hospital Bijapur. He lodged the complaint before the police as per Ex.P-1.5-6 days after the incident Gajendra expired. While starting the lorry and taking it front and backside the accused has not given any prior intimation when he started the lorry and moving in front as well as backside. Himself and Gajendra were still it the lorry and loading the stone slabs. In the cross examination he deposed and denied the suggestion that while loading the stone slabs Gajendra slipped and because of that reason he fell down and sustained injuries. He also denied the suggestion that they have given history of the case accordingly in the BLDE hospital before the doctor. He has admitted as true that when they were loading the stone slabs the lorry was stationed and it was not vet started.

PW 2 who is said to be another eyewitness present at the spot along with PW 1, also deposed in his examination-in-chief similar to PW 1. During the course of cross examination he deposed that the complainant Yatawari Shahani and deceased Gajendra are his close friends. The police have recorded his statement in the BI .DE hospital. He does not know in which language his statement was recorded. But he deposed that they have recorded his statement as narrated by him. He denied the suggestion on that day they have not at all gone to the said Sai Marble shop nor they were loading the marble stones in the said vehicle. He denied the further suggestion that no such incident took place in the said place and he is deposing falsely. He denied the suggestion that as the proper treatment was not given to Gajendra, he expired and denied further suggestion that in the process of loading the stone slabs as Gajendra slipped and he fell down and because of that reason he sustained injuries.

PW 3 Satyanarayan Shahani also deposed in his evidence in examination-in-chief that they all four went to Sairaj Marble Stone shop on 30.3.2006 in morning at 9.00 a.m. when they were loading stone slabs in the lorry, the accused started the lorry and took it front and backside. The stone slabs fell on the deceased Gajendra and on the complainant Yatawari Shahani and they were shifted to BLDE hospital. In the cross examination he deposed that deceased Gajendra was not financially sound. After collecting the money from others treatment was given to him. That it was suggested because of that reason the deceased did not receive proper treatment. The witness shown his ignorance. The police have enquired with him in the hospital. He admitted that his statement was recorded in Kannada language, but he deposed that he does not know what is written in his statement. He denied the suggestion that he is falsely deposing that on 30.3.2006 morning at 9.00 a.m. they were loading the stone slabs into the lorry and as the driver took the lorry front and backside, the stone slabs fell on them and they sustained injuries.

PW 7 is the owner of the Sairaj Marble shop. He also deposed in his evidence in the examination-in-chief that on 30.3.2006 at 8.00 a.m. he went to his marble shop and at about 9 a.m. the accused before the Court came to his shop along with 407 vehicle. Six persons came in order to load the marble stone in the said vehicle and they loaded the marble blocks into the lorry. Still two blocks of the marble stones were yet to be loaded, it was 11 or 11.30 a.m. and when the workers were loading those two marble blocks into the lorry, deceased Gajendra and another one were still in the lorry, at that time the accused before the Court took the lorry front as well as the backside. In that process the marble stones fell on them and Gajendra and other persons sustained injuries. When accused took the vehicle front and backside, he has not given any prior intimation and even he was also not consulted. In the cross examination he deposed that when the incident took place he was alone in the shop. After hearing sound of falling of the stones he came outside and saw and came to know about the incident. He admitted as true that from the main door of his shop if any vehicle is to be taken to main road, it has to go slowly. He further deposed and admitted as true that when the stones were (sic) fell only after that he has seen the incident.

PW 5 the doctor deposed in his evidence that on 30.3.2006 when he was on duty in the morning at 11.10 a.m. Yatawari Shahani and Gajendra Shahani i.e., the complainant and deceased came to the hospital with history of stones fall on them and they sustained injuries. He examined them and X-ray was also taken. There was a fracture injuries on complainant Yatiraj Sahani, but there were no external injuries. The injuries sustained by the complainant was grievous. He issued wound certificate as per Ex.P-4. When he examined another injured Gajendra, he was in unconscious state. There was no pulse beating and he was not responding to the treatment. He was having one lacerated wound on his right shoulder measuring 2x 1 x 1 cms. The humerous bone was fractured as the condition of the injured Gajendra was serious he was sent to some other hospital for higher treatment. In the cross-examination he admitted as true that two persons when loading heavy stones into the lorry and if they slipped and the stones fell on them, they can sustain the injuries that he has mentioned.

PW.6-Doctor who conducted post mortem examination over the dead body of the deceased - Gajendra he has issued the certificate as per Ex.P5.

Looking to the materials placed on record, it is defence of the respondent - accused that when they were loading stone slabs to the vehicle, they slipped and fell down, because of that reason stones fell on them and sustained injuries. It is true that, the witnesses have denied this suggestion. But looking to Ex.P4 the wound certificate issued by the doctor it is mentioned that, he examined Sri. Yatwari S/o Rajendra Sahani, aged 18 years, male, native of Bijapur, at 11:10 a.m. on 30.03.2006 the injuries said to have been caused by fall of stone over the body while loading the vehicle. So looking to this history furnished by PW. 1, the complainant, there is no specific mention in the history that the driver of the vehicle when he started the vehicle and took it front and backside, in that process the stone slabs fell on them and they sustained injuries. The history furnished by PW.l, which is noted by doctor-PW.5 in Ex.P4 wound certificate, it gives an impression that while loading the stone slabs, the stone slabs fell on them and thereby they sustained injuries. So it probablise the defence of the respondent - accused. Apart from that, cross-examination of PW. 1 the complainant and his admission that when they were loading the stones in the lorry, it was not started and it was stationed. If this aspect is taken into consideration, a reasonable doubt arises in the mind of the Court whether really the driver of the said vehicle started the vehicle and moved it front as well as the backside and in that process the incident took place or the stone slabs fell on the complainant as well as the deceased when they were loading stone slabs into the said vehicle as the history is furnished to PW.5 and as noted in Ex.P4 wound certificate of Yatwari.

I have also perused the evidence of PW.7 owner of Sairaj Marble Stone Shop. His evidence is not helpful to the prosecution. Because he clearly admitted in his cross-examination that only after hearing the sound of fall of the stone slabs, he came outside and saw the incident. And he has not mentioned during the cross-examination that when he came out of his shop he saw the driver of the said vehicle started it and moved it front side as well as the backside. Considering all these material aspects, the First Appellate Court properly appreciated these materials and held that the Trial Court has not properly appreciated these important aspects of the matter and wrongly convicted the accused. The First Appellate Court allowed the appeal and thereby set aside the judgment and order of conviction by acquitting the appellant-accused. Re-appreciating the entire materials placed on record, the judgment and orders passed by the Courts below, I am of the considered opinion that, the respondent - accused has raised the defence which probablise the materials placed on record that the incident is because of slip of Gajendra and falling down along with stone slabs and sustaining the injuries. It is also the suggestion and defence of the accused that in order to file the motor vehicle case and to get compensation amount they have created false story and falsely implicated the accused persons. It is no doubt true the said suggestion denied by the witnesses and so far as defence of accused is concerned, he need not prove the defence beyond reasonable doubt but preponderance of probabilities if it is established by the accused persons it will be enough. Therefore, considering these aspects of the matter, I am of the opinion that the First Appellate Court rightly comes to the conclusion in allowing the appeal and acquitting the respondent - accused persons setting aside the judgment and order of conviction passed by the Trial Court. The judgment and order of acquittal passed by the First Appellate Court is legal and it is in accordance with the materials placed on record. There are no grounds to interfere into the judgment and order passed by the First Appellate Court.

Accordingly, the appeal preferred by the State is dismissed by confirming the judgment of the First Appellate Court.