THE STATE OF KARNATAKA v. NALLAYAPPA — 1996 DIGILAW 250 (KAR)

C. N. ASWATHANARAYANA RAO, J. ( 1 ) THIS is a State appeal against the judgement in C. C. No. 539/88 dated 6-7-1989 on the file of the Court of the First Additional Metropolitan Magistrate, Bangalore, wherein the respondent-accused has been acquitted of the offences under Sections 279, 337 and 304 (A), IPC and under Section 3 (1) and 112 of the Motor Vehicles Act. ( 2 ) THE prosecution case is that on 13-9-1986 at about 7. 45 a. m. , the complainant Munivenkatappa, one Narayanappa and Gowramma were going for cooly work from Kasavanahally to Kaikondanahally. Gowramma was going in the front. About twenty feet behind her, the complainant was going. When they were going near the house of one Buddappa, from the opposite side a tempo bearing No. CAM 2567 came. The driver of the said tempo, who is the accused, drove it in a rash and negligent manner, as a result of which it came and dashed against Gowramma and Buddappa. Gowramma died at the spot and Buddappa suffered serious injuries. ( 3 ) SINCE the accused pleaded not guilty, the prosecution in support of its case, examined five witnesses P. Ws. 1 to 5 and relied upon the document Ex. P-1. The defence of the accused is one of total denial. ( 4 ) AFTER trial and hearing the arguments of the learned Counsel for the parties, the learned Magistrate held that the prosecution had not established the case against the accused beyond all reasonable doubts and acquitted the accused. Being aggrieved by that judgement, the State has preferred this appeal. ( 5 ) IN the appeal memo, the appellant has contended that the appreciation of the evidence on record by the Trial Court is not proper. It is contended the learned Magistrate, without giving sufficient opportunity to the prosecution to examine the Investigating Officer, the Inspector of Motor Vehicles and the doctor, has passed the impugned judgement and therefore it is liable to be set aside. It is contended even on the available evidence, the Trial Court ought to have convicted the accused. It is contended the evidence of P. Ws. 1 to 5 has been discarded on flimsy grounds. It is contended the learned Magistrate failed to see that when once the Court has issued summons to the witnesses, it was its duty to secure their presence. It is contended the evidence of P. Ws. 1 to 5 has been discarded on flimsy grounds. It is contended the learned Magistrate failed to see that when once the Court has issued summons to the witnesses, it was its duty to secure their presence. The appellant has therefore prayed for setting aside the impugned judgement and convicting the accused or in the alternative, to remand the case for a fresh disposal in accordance with law, giving an opportunity to the prosecution to examine the remaining witnesses. ( 6 ) I have heard the learned High Court Government Pleader for the appellant and the learned Counsel for the respondent and have perused the records. I shall first consider the grounds urged by the learned Counsel for the appellant for remanding the matter. The learned Counsel for the appellant contended that in the Lower Court records, the sketch of the spot of accident, the I. M. V. Report, the P. M. Report and the wound certificate are available, but they are not marked as exhibits in the case. He drew my attention to the order sheet in the Trial Court. It goes to show that summons were issued by the Court to some of the witnesses connected with these documents, but they could not be served. The order sheet dated 17-1-1989 reads as follows :-"accused present. Summons not returned. Sufficient opportunity given. Evidence closed. Statement by 23-6-1989. "the earlier order sheets go to show twice or thrice the summons was issued and reissued to the witnesses. ( 7 ) AS submitted by the learned High Court Government Pleader for the appellant, when once the learned Magistrate decided to issue summons to these witnesses, he could not have closed the prosecution case merely because the summons issued had not been returned. It was open for him to issue fresh summons to the witnesses by registered post or through the higher authorities of the concerned witnesses and even then if they did not appear, to have issued bailable or non-bailable warrants as the occasion demanded, to enforce the attendance of the witnesses. Without taking any such steps, the learned Magistrate was not right in closing the prosecution case. ( 8 ) THE learned counsel for the respondent argued that no useful purpose would be served by remanding the matter since the accused was not at all driving the tempo in question. Without taking any such steps, the learned Magistrate was not right in closing the prosecution case. ( 8 ) THE learned counsel for the respondent argued that no useful purpose would be served by remanding the matter since the accused was not at all driving the tempo in question. I do not think at this stage this Court can go into that question. Expressing any opinion on the said contention by this Court at this stage, may prejudice the case of either of the parties before the Trial Court. It is open to the respondent-accused to take up such a contention before the Trial Court. One of the grounds of acquittal, as could be seen from the impugned judgement is that these material witnesses namely the I. M. V. Inspector, the Investigating Officer and Doctor have not been examined. To this list it may be added the author of the sketch of the scene of offence has also not been examined. This is a serious lacuna in the prosecution evidence. We have seen from the above discussion that the prosecution is not to be blamed for this situation inasmuch as, the Trial Court did not pursue the matter and did not issue any further summons or take coercive steps to secure the presence of these material witnesses. I therefore find that this is a fit case to set aside the judgement of acquittal passed by the Trial Court and remand the matter for a fresh decision in accordance with law by giving necessary directions to the Trial Court. In view of this finding, there is no necessity for me to consider the evidence of PWs 1 to 5 and express any opinion on the same. ( 9 ) FOR the reasons aforesaid, the appeal is allowed. The impugned judgement is set aside. The matter is remanded to the Trial Court with a direction to the learned Magistrate to issue fresh witness summons to the witnesses whom the prosecution wants, pursue the matter, if the witnesses do not attend inspite of service of summons, to take coercive steps against them and secure their presence. After examining the remaining witnesses, the learned Magistrate shall hear the arguments of both the parties and dispose off the case afresh in accordance with law. Both the parties are directed to appear in the Trial Court on 5-6-1996. After examining the remaining witnesses, the learned Magistrate shall hear the arguments of both the parties and dispose off the case afresh in accordance with law. Both the parties are directed to appear in the Trial Court on 5-6-1996. On an application to be filed by the respondent-accused before the Trial Court for fresh bail, the learned Magistrate shall accord bail to him on necessary conditions. Appeal allowed. --- *** --- .