The State of Karnataka vs Sri Chalapathi

Though this matter is posted for admission, with the consent of learned Counsel appearing for the parties, it is taken up for hearing, heard and

disposed of by this judgment.

This appeal is by the complainant-State being aggrieved by the judgment and order of acquittal dated 6.3.2013 passed by the JMFC, Malur, in

C.C. No.505/2010 acquitting the respondent-accused for the offences punishable under Sections 279, 304-A of IPC and 134-B read with

Section 187 of Indian Motor Vehicles Act.

Brief facts of the case of prosecution as per the complaint averments is that, on 18.9.2010 at about 7.00 p.m., the accused being the driver of

the tractor bearing registration No.KA.07.T.4711-4712 drove the same in rash and negligent manner at Abbenahalli-Malur Road towards Malur

and near the land of Ramakrishna, he dashed against the two wheeler bearing registration No.KA 08 K.4449. The driver of the two wheeler

sustained grievous injuries and succumbed to the same. On the basis of the said complaint, FIR came to be registered against the respondent-

accused for the offences punishable under Sections 279 and 304A of IPC and Section 134-B read with Section 187 of Indian Motor Vehicles

Act. Then, charges were framed and plea was also recorded. The respondent-accused denied the charges and claimed to be tried. During the

course of trial, the prosecution examined eight witnesses as P.Ws.1 to 8 and got marked the documents at Exs.P.1 to P.9 with sub markings. On

the side of the defence, no witnesses were examined and no documents got marked. After hearing the arguments on both sides, ultimately, the

Court below acquitted the accused holding that the prosecution failed to prove its case beyond reasonable doubt and the benefit of doubt can be

given to the respondent accused. Being aggrieved by the judgment and order of acquittal passed by the Court below and challenging the legality

and correctness of the said judgment and order of acquittal on the grounds as mentioned in ground Nos.1 to 7, the appellant-State is before this

Court.

Heard the arguments of learned HCGP appearing for the appellant-State so also the learned Counsel appearing for the respondent-accused.

Learned HCGP appearing for the appellant- State, taking this Court through the entire materials, made submission that though there is an eye

witness i.e., P.W.2, the Court below, only on ground of minor discrepancies in the evidence of P.W.2, has not believed his evidence and wrongly

rejected his evidence raising the doubt and ultimately, acquitted the respondent-accused. The learned HCGP drawing the attention of this Court to

the entire materials so also the judgment and observation of the Court below regarding the evidence of P.W.2, made submission that no doubt in

his evidence, P.W.2 has stated that spot mahazar was conducted on the very day of the incident and in fact, it was conducted on the next day of

the incident, but P.W.2 is the villager and the incident took place in the year 2010 and by the time, his evidence came to be recorded before the

Court, he might have lost his memory. Even the Court below raised suspicion regarding his evidence when P.W.2 has stated that the incident took

place nearby the place ''drain'' whereas the complainant has stated that it was nearby the land of one person. The learned HCGP draws the

attention of this Court to the contents of Ex.P.2 and made submission that there is a mention in the mahazar that on both sides of said place there

are drains. Hence, he submitted that this aspect is not looked into properly by the Court below. He submitted that looking to the materials placed

on record, more particularly the evidence of P.W.2, he has consistently deposed before the Court below about the happening of the accident and

it is the respondent-accused himself has caused the accident and hence, the prosecution has proved its case beyond reasonable doubt. The

judgment and order of acquittal passed by the Court below is not in accordance with the materials produced in the case. Hence, the learned

HCGP submitted to allow the appeal and set aside the judgment and order of acquittal passed by the Court below for the offences punishable

under Sections 279, 304-A of IPC and 134-B read with Section 187 of Indian Motor Vehicle Act.

Per contra, learned Counsel appearing for the respondent-accused in his arguments contended that the evidence of P.W.2 itself has raised

doubt regarding his presence at the said place on the date of incident. In this connection, the learned Counsel for respondent draws the attention of

this Court to the relevant portion in the judgment of the Court below and made submission that firstly, P.W.2 deposed that the spot mahazar was

conducted on the date of incident, in fact, it was conducted on the very next day of the incident. Even with regard to the boundaries to the place of

incident is concerned, P.W.2 has answered that he cannot say the boundaries. Therefore, the learned Counsel submitted that looking to these

things and as P.W.2 belongs to another village and deposed that for some work, he came to the village where incident had occurred, and he has

personally witnessed the incident, the Court below has correctly raised doubt regarding the evidence of P.W.2. It is also his submission that

P.W.2, eye witness to the incident, has spoken to only about the speed at which the driver of the tractor drove the vehicle and stated that it was

driven in a high speed. Except that, P.W.2 has not spoken about the rash and negligent driving of the driver of the tractor. Hence, he submitted that

in this connection also, Court below has observed that speed is not the only criteria to come to the conclusion that the accident is because of rash

and negligent driving. Hence, he submitted that the judgment and order of acquittal passed by the Court below is legal and valid and in accordance

with the materials placed on record. There is no illegality nor there is any perverse or capricious view taken by the Court below. Hence, he sought

to dismiss the appeal and to confirm the judgment and order of acquittal passed by the Court below.

I have perused grounds urged in the appeal memorandum, oral evidence of P.Ws.1 to 8, documents Exs.P.1 to P.9, judgment and order of

acquittal passed by the Court below so also I have considered the oral submission made by the learned Counsel on both sides at the Bar.

As per the case of prosecution, P.W.2 is the sole eye witness in the case. The complainant is not the eye witness to the incident. Now referring

to the evidence of P.W.2, who claims to be the eye witness, he has stated that he has personally witnessed the incident and within half an hour, the

police came to the spot. But, the Court below has raised doubt even with regard to this when the eye witness was at the spot and not lodged the

complaint, how the police came to the spot in the absence of instructions to come to the spot. The evidence of P.W.2 is that the spot mahazar was

conducted on the same day within half an hour after the accident. No doubt, it is not the correct evidence of P.W.2, because as per the records

and looking to Ex.P.2-spot mahazar, it was conducted on the next day of the incident. But referring to this, learned HCGP is justified in making his

submission that because of gap of time, probably, P.W.2 might have forgotten to say that the mahazar was conducted on the next day of the

incident. Even with regard to the place of incident, the learned HCGP drew the attention of this Court to the contents of Ex.P.2-mahazar, no doubt

in the mahazar, it was mentioned that on either side of the road, there are drains and this aspect could have been appreciated by the Court below.

Apart from this, even if it is accepted by this Court for the sake of appreciation of the case of prosecution that if it is believed that P.W.2 is the eye

witness to the incident, but looking to his deposition before the Court below, he has spoken only about the speed of the vehicle at which it was

moving and he has stated that the driver of the tractor was driving it on high speed, the driver came in high speed and dashed to the driver of the

two wheeler vehicle. P.W.2 has not spoken specifically in his evidence that the driver of the tractor was driving it in rash and negligent manner and

because of that reason, the accident has happened. Therefore, in the absence of such evidence before the Court so far as the rash and negligent

driving which is the essential requirements of Sections 279 and 304A of IPC, only on the basis of the evidence of P.W.2 that the driver was driving

the tractor vehicle in a high speed and caused accident, is not sufficient to come to the conclusion that the prosecution is said to have proved the

offences under Sections 279 and 304A of IPC. Therefore, this aspect was properly appreciated by the Court below and accordingly, the Court

below disbelieved the evidence of P.W.2, the alleged eye witness.

Looking to the judgment and order of acquittal and the reasoning adopted by the Court below, I am of the opinion that no illegality has been

committed by the Court below in coming to such conclusion and no perverse and capricious view has been taken by the Court below in the matter.

Therefore, there are no justifiable and valid grounds for this Court to interfere with the judgment and order passed by the Court below. The appeal

is accordingly dismissed confirming the judgment and order of the Court below.