State of Karnataka vs Shivaraju

A.S. Pachhapure, J.

The State has challenged the judgment and order acquitting the respondent for the offences punishable under Sections 279, 337 and 304A of IPC and Section 134 (a) and (b) r/w Section 187 of the Motor Vehicles Act.

The facts reveal that on 14.09.2007 at about 7.30 a.m., the complainant, his wife and children were cutting tobacco leaves in their land and they kept the same on the footpath of the road. At about 9.00 a.m., a goods auto rickshaw bearing registration NO.KA-45-1430 came from Mokodu driven by its driver in a rash and negligent manner so as to endanger human life and dashed against the son of complainant Rama (deceased), as a result, he fell down and sustained head injury and died at the spot and complainant sustained simple injuries. The accused did not inform the police about the incident and also he did not provide medical treatment to the injured. On that basis, the police have registered a case against the respondent for the offences punishable under Sections 279, 337 and 304-A of IPC and u/s. 134(a) and (b) of Indian Motor Vehicles Act at Ex. P1 and thereafter the police conducted the spot mahazar at Ex. P2 and the Inquest report on the body of deceased at Ex. P4. The post mortem report of the deceased at Ex. P3. The statements of witnesses were recorded. The Motor Vehicle Inspector inspected the vehicle and report was obtained at Ex. P5. After completion of the investigation, charge sheet was laid against the respondent for the aforesaid charges.

The prosecution examined in all PWs 1 to 9 and got marked documents Exs. P1 to P6(a). After recording the statement of accused under Section 313 of Cr.P.C., the trial Court heard the counsel and convicted the respondent for the offences punishable under Sections 279, 337 and 304(A) of IPC and Sections 134 (A) and (B) r/w Section 187 of IMV Act and sentenced him to undergo simple imprisonment for a period of 6 months for the offence punishable under Section 279 of IPC and to pay fine of Rs. 600./- in default, to under go S.I for one month; to under go S.I. for one month for the offence under Section 337 of IPC and to pay a fine of Rs. 500/- in default to undergo simple imprisonment for Six days; to undergo S.I for six months for the offence punishable under Section 304-A of IPC and to pay a fine of Rs. 1,000/- in default and to under go S.I for one month and to pay a fine of Rs. 300/- for the offences punishable under Sections 134(a) and (b) r/w section 187 of IMV Act, in default to undergo S.I for 5 days. Being aggrieved by the conviction and sentence, the respondent filed an appeal before the Sessions Judge and the said appeal came to be allowed by setting aside the judgment and order of conviction and sentence and acquitted the accused of the aforesaid offences. Being aggrieved by the said judgment and order, the State has preferred this appeal.

Heard the Learned Government Pleader appearing for the State and Sri. P. Nataraju, learned counsel appearing for the respondent.

The point that would arise for my consideration is:

"Whether the State has made out any grounds which warrant interference in the judgment and order of acquittal of respondent for the charges under Sections 279, 337 and 304A of IPC and Section 134 (a) and (b) r/w Section 187 of the Motor Vehicles Act?"

The learned High Court Government Pleader appearing for the State submits that the Appellate Court has erroneously given the findings and submits that the appellate Court has committed an error in granting an order of acquittal despite the fact that the prosecution has proved the rash and negligent act of driver of the offending vehicle. He submits that there is a material on record to prove the aforesaid offences and therefore, requests to allow the appeal.

On the other hand, learned counsel appearing for the respondent supports the judgment and award passed by the first appellate Court and submits that there was no rash and negligent act on the part of the driver and there is no material to prove that the respondent was the driver of the offending vehicle.

Perusal of the evidence reveals that PW1 is the father, PW2 is the mother and PW3 is the brother of the deceased. PWs 4, 5 and 6 are the eye witnesses to the incident. PWs. 7 and 8 are the attesting witnesses to the spot mahazar (Ex. P2). PW9 is the police officer who held the investigation. PWs. 1 to 6 are the eye witnesses to the incident.

It can be seen from the evidence of the witnesses that the driver of the vehicle came in a rash and negligent manner and in a high speed and hit the Rama (deceased). Except this statement, in the cross-examination, nothing has been elicited by these witnesses with regard to the manner of rash and negligent act on the part of driver of the vehicle. Merely stating that the vehicle was driven in a high speed, is not sufficient to hold that there was a rash and negligent act on the part of the driver. In fact, the rash and negligent act has to be proved by the prosecution.

Further, the prosecution has to explain the rash and negligent act on the part of the driver of the offending vehicle before the Trial Court by placing cogent and convincing evidence on record.

The prosecution has to prove that the deceased was on the proper side of the road but, the driver took vehicle in a wrong side and hit the deceased. Merely, stating that the driver drove the auto in a high speed, is not sufficient to prove the rash and negligent act on the part of driver of the vehicle.

In so far as the question regarding whether the appellant was driving the vehicle is concerned, it is not in dispute that in the examination of any of the witnesses it is proved that the accused is the driver of the vehicle in question. Even in the statement of accused recorded under Section 313 of Cr.P.C. the accused had nor denied that he was the driver of the vehicle in question.

Therefore, in my opinion the evidence placed on record is insufficient to prove rash and negligent act on the part of driver of the vehicle. Therefore, the Judgment and award passed by the appellate Court does not call for any interference and there is no merit in this appeal.

The appeal fails and is accordingly, dismissed.