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2013 DIGILAW 1382 (KAR)

State by Traffic Police Station v. C. H. Dharma

2013-12-09

H.G.RAMESH

body2013
Judgment : 1. This appeal is by the State challenging the order of acquittal passed by the Chief Judicial Magistrate, Raichur in CC No.79/2008. The accused was acquitted by the impugned order dated 05.04.2010 for the offences punishable under Sections 279, 304-A of IPC and Section 134 r/w Section 187 of IMV Act. 2. It is alleged that on 8.2.2008 around 9.40 a.m., when the deceased Khadar Vali Shaik was going to KEB school on his bicycle on the left side of the road near Chitanya hospital, at that time, the accused-driver of lorry bearing No.AP-16/TW-4244 drove the lorry in a rash and negligent manner and dashed against the bicycle of the deceased Khadar Vali Shaik, due to which he fell down and left side rear wheel of the lorry ran over his head as a result, the deceased sustained severe injuries and died on the spot. After the accident, the accused ran away from the spot. The police after investigation, filed charge sheet against the accused. The trial Court recorded the plea of the accused who pleaded not guilty and claimed to be tried. During trial, the prosecution examined 11 witnesses and got marked 10 documents. After hearing, the trial court acquitted the accused of the alleged offences. Hence, this appeal is by the State. 3. Heard the Addl. SPP and counsel for the respondent. 4. The points that arise for consideration are; i) Whether the prosecution proved beyond reasonable doubt that the accused being the driver of the lorry in question, drove the same in a rash and negligent manner near Chaitanya hospital, Raichur and thereby dashed to the cyclist due to which the deceased Khadar Vali Shaik fell down and sustained severe injuries and died on the spot and thereafter, the accused ran away from the spot? ii) Whether the trial Court is justified in acquitting the accused for the above said offences? iii) What offence, if any the accused has committed? iv) What order? 5. The trial Court acquitted the accused on the ground that none of the witnesses have deposed about the rash and negligent driving of the vehicle though PWs.1, 4 and 10 are eyewitnesses. 6. PW 4 in his evidence has stated that he knew the accused as well as the deceased. iv) What order? 5. The trial Court acquitted the accused on the ground that none of the witnesses have deposed about the rash and negligent driving of the vehicle though PWs.1, 4 and 10 are eyewitnesses. 6. PW 4 in his evidence has stated that he knew the accused as well as the deceased. He has specifically deposed to the effect that on 8.2.2008 at about 9.40 a.m., when himself and Mallikarjun were going on motorcycle and were coming towards Basaveshwar circle. When they were near D.C's residential house, at that time, one lorry came in high speed, in a rash and negligent manner and dashed against one cyclist boy, as a result of which, the boy fell down and the lorry ran over him, due to which the boy died on the spot. Of course, PW.5 who is the father of the deceased Khadar Vali Shaik is a hearsay witness. He has deposed that he was informed that his son died in the accident on the spot and he was also informed that due to fault of the lorry driver, the accident occurred. 7. Out of the witnesses examined, PW.1 is the complainant, PW.4 is an eyewitness and PW.5 is the father of the deceased. PW.10 is an eyewitness and PW.11 is a hearsay witness. What is being noted is, in the evidence of PW.4, he has specifically stated that lorry was being driven in high speed and rash and negligent manner. This fact has not been taken note of by the trial Court. This speaks to the fact that the eyewitness- PW-4 has spoken not only about the speed of vehicle, but also about the rash and negligent driving of the vehicle by the accused. This has not been properly appreciated by the trial court. Further more, the spot of the accident is near the hospital and also there is a school. It is also admitted that it is a school zone. Such being the case, in such a busy place, driving the vehicle in speed is also presumed as rash and negligent driving. In such a place, driver was expected to drive the vehicle slowly and at a moderate speed. In that view of the matter, I do find substance in the argument of the Addl. Such being the case, in such a busy place, driving the vehicle in speed is also presumed as rash and negligent driving. In such a place, driver was expected to drive the vehicle slowly and at a moderate speed. In that view of the matter, I do find substance in the argument of the Addl. SPP not only with regard to speed, but also there is evidence with regard to rash and negligent driving and causing of accident and driving the vehicle in speed in a place which is a school zone. In that view of the matter, the prosecution is able to prove that the accident was caused due to rash and negligent driving of the vehicle by the accused thereby causing the death of the deceased Khadar Vali Shaik. 8. While reversing the finding of the trial court, the accused is convicted for the offences punishable under Sections 279, 304-A of IPC and also under Section 134 R/W Section 187 of IMV Act. 9. For the offence punishable under Section 279 of IPC, the accused is sentenced to pay a fine of Rs.1,000/-, in default of payment of fine, he shall undergo simple imprisonment for 15 days. 10. For the offence punishable under Section 304-A of IPC, the accused is sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.2,000/-, in default of payment of fine, the accused to undergo simple imprisonment for two months. 11. For the offence punishable under Section 187 of M.V. Act, the accused is sentenced to pay a fine of Rs.500/-, in default of payment of fine, he shall undergo simple imprisonment for seven days. 12. Since the accused appeared before the police and has taken bail, question of giving set-off under Section 428 of Cr.P.C. does not arise. 13. On deposit of fine amount, a sum of Rs.3,500/- shall be paid to the father of the deceased as compensation. Accordingly, appeal filed by the State is allowed in part.