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2013 DIGILAW 657 (KAR)

STATE OF KARNATAKA v. K. SURYANARAYANA RAJU

2013-06-10

B.V.PINTO

body2013
JUDGMENT B.V. PINTO, J.-This appeal is filed by the State challenging the Judgment dated 30.3.2011 passed by the City Fast Track (Sessions) Judge, Bangalore City in S.C. No. 805/2007 acquitting the respondent of the offences under Sections 279, 304 Part-II of IPC and Section 134(a)(b), 179(1) and 187 of M.V. Act. 2. It is the case of the prosecution that on 18.3.2006 at about 11.45 p.m. on Cubbon Road, near BRV Junction, Bangalore City respondent being the driver of the black colour Scorpio vehicle bearing registration No. KA-04-MC-5055, drew the same on the M.G.Road in a rash and negligent manner, endangering human life, and at that time, the deceased as well as the police party were checking the drunken driving and had put the barricades at BRV Junction. 3. It is the case of the prosecution that the deceased PSI-N. Arun Kumar, stopped the Scorpio vehicle and went to check the said vehicle and by that time, the respondent has pretended that he is going to stop the vehicle and when the said PSI-N. Arun Kumar, wanted to check the vehicle, the respondent neglected the orders of PSI and immediately the respondent drove the vehicle in a rash and negligent manner and hit against on duty Police Officer-N. Arun Kumar, who was near the junction on checking duty, knowing fully well that the such act would cause the death of the deceased-N. Arun Kumar and as a result of the said act deceased was succumbed to the injuries in the hospital, thereby, it is alleged that the respondent has committed the offences under Sections 279 and 304 Part-II of IPC. 4. It is the further case of the prosecution that knowing fully well that the accident has taken place in which one person has injured, the respondent has not stopped the vehicle either to give first aid to the injured nor to inform the said incident to the nearest Police Station, thereby he is alleged to have committed the offences 134(a)(b), 179(1) and 187 of Indian Motor Vehicle Act. 5. The prosecution in order to prove the case has examined in all 26 witnesses and got marked Exs-P1 to P44 and produced material object No. 1-Scorpio Car. The defence of the respondent was one of total denial. 5. The prosecution in order to prove the case has examined in all 26 witnesses and got marked Exs-P1 to P44 and produced material object No. 1-Scorpio Car. The defence of the respondent was one of total denial. However by the impugned judgment, the learned Sessions Judge was pleased to hold that the prosecution has not proved the case against the respondent as being the driver of the said vehicle and has acquitted him giving benefit of doubt. It is this Judgment of acquittal that has been challenged by the State in this appeal. 6. The Commercial Street Traffic Police received a complaint on 19.3.2006 at about 1'o clock in the midnight by one S. Vidyuth. It is stated in the said complaint that on that day, at about 11.45 p.m. when the complainant was on his way back to his residence in Jayanagar, he stopped his two wheeler [Kinetic Honda, KA-05 EE 2412] on Cubbon Road near the old BRV Theatre junction. He noticed traffic police checking at the junction. There were two barricades placed on either side of the lane. He was behind the Scorpio vehicle. He noticed the vehicle moving slowly and a police officer on the right side of the vehicle. The officer was talking to the driver. The officer then walked up to the front of the vehicle, as vehicle started raising the accelerator. At the moment of impact, the complainant saw the officer being hit by the vehicle and he subsequently fell down on his right side. As he fell down, the vehicle ran over his leg and sped away leaving heavy black smoke behind. The complainant could not notice the registration number due to the black smoke emanated from the Scorpio Car. He noticed the rear glass was tinted with horizontal lines. As they were all engaged in lifting the officer and putting him in an Auto, some traffic police officers got onto a pulsar to chase the vehicle. After they shifted the injured officer into an Auto, he came to know that he was being taken to Bowring Hospital. He later on came to know that the injured officer's name was Mr. Arun Kumar, Sub Inspector of Traffic Police, attached to Shivajinagar Police Station. He also later on learnt that the said officer had passed away at Mallya Hospital. He later on came to know that the injured officer's name was Mr. Arun Kumar, Sub Inspector of Traffic Police, attached to Shivajinagar Police Station. He also later on learnt that the said officer had passed away at Mallya Hospital. It is stated in the complaint that the Complainant can identify the vehicle, if he were to see. Based on the above information, a case in Crime No. 33/2006 was registered at the Commercial Street Traffic Police Station for the offences under Sections 279, 304 Part-II of IPC and Section 134(a)(b), 179(1) and 187 of M.V. Act. 7. PW.25-Manjunath S.H., Inspector of Police, Indiranagar Traffic Police Station, who conducted the investigation, drew the panchanama of the scene of occurrence and subjected the dead body for post-mortem examination after conducting the inquest proceedings. He summoned PW.12, Junior Engineer to prepare the sketch of the scene of occurrence. He deputed his sub-ordinates to secure the black colour Scorpio vehicle, wherever found. PW.10 subsequently secured all the black coloured scorpio vehicles out of which on the basis of the small dent on the right side of the vehicle, the present vehicle bearing registration No. KA-04-MC-5055 was detained and it was found that the said vehicle was involved in the accident. The driver of the said vehicle, the respondent herein was arrested and subsequently after completion of investigation, charge sheet came to be filed. However, Investigation Officer instead of filing a charge sheet for an offence under Section 304-A of IPC, filed a charge sheet against him for an offence under Section 304 Part-II of IPC alleging that the respondent has committed culpable homicide not amounting to murder, in causing the death of the deceased Arun Kumar. 8. Out of the 26 witnesses examined by the prosecution, PWs.5, 7 to 9 & 20 to 23 have turned hostile to the case of the prosecution. 9. PW.1-Prashanth is the son of the deceased. He has stated that on the date of incident namely, on 18.3.2006 his father was on duty during the night time and he had informed that he would come back to the house at about 11.45 p.m. However, he was summoned to the Bowring Hospital, where, he was informed that his father had succumbed to the injuries arising out of the accident on the road. 10. PW.2-Shivakumar, is the constable attached to the Shivajinagar Police Station. 10. PW.2-Shivakumar, is the constable attached to the Shivajinagar Police Station. He was the sub-ordinate to the deceased as on the date of the accident. He has stated that on 18.3.2006, he was working as a constable and they were holding a check of the vehicles driven by the drivers in a drunken condition at the BRV Junction within the jurisdiction of Shivajinagar Police Station. It is in his evidence that at about 11.45 p.m. while they were on their duty by placing iron barricades and reflectors on the road, so as to stop the oncoming vehicles, a black coloured Scorpio vehicle, came from the Manipal junction side in a rash and negligent manner. The deceased PSI-Arun Kumar and himself gave a signal to stop the same. At that time, a sound was heard and when he noticed at the where the said sound came, he observed that the said black coloured Scorpio vehicle was going ahead, the deceased PSI-Arun Kumar had fallen on the ground and he was bleeding from his head and ears. The other colleagues in the Department went to give first aid to the injured-Arun Kumar. PW.2 followed the Scorpio vehicle in a Maruthi Car, which went towards CTO Junction but since black smoke was coming from the vehicle, he could not note down the registration number of the vehicle. Near Raj Bhavan Junction, since the signal light fell down, they could not proceed further. Whereas the Scorpio vehicle went ahead and therefore they could not catch-hold of the vehicle on the night of the accident. It is stated by PW.2 that the injured-Arun Kumar was later on shifted to Bowring Hospital, where it was advised to take him to the Mallya Hospital after giving first aid and oxygen. While injured-Arun Kumar was still on the way to Mallya Hospital, he succumbed to the injuries and the Doctor has declared him as 'brought dead'. By that time, police Commissioner and another person came to the scene of occurrence. It is in the evidence of PW.2 that PW.26-B.K.Shivarao further took up the investigation and he has given statement before the said Officer. He has also stated that he has identified the said vehicle in the Police Station. By that time, police Commissioner and another person came to the scene of occurrence. It is in the evidence of PW.2 that PW.26-B.K.Shivarao further took up the investigation and he has given statement before the said Officer. He has also stated that he has identified the said vehicle in the Police Station. He has identified the said vehicle since the vehicle was similar to the one which caused the accident in the night and since there was a dent on the left side hind portion of the said vehicle and there was a sign of damage on the said vehicle. He has stated that the driver of the said vehicle was in the Station, he has identified him as a driver. In the cross-examination, it is elicited that he could not have carefully looked into the colour since it was dark at the time of incident. None of the persons present had noted the registration number of the vehicle on the date of the incident. It is also elicited that none of them have seen the driver of the vehicle as on the date of the incident and it is for the first time on19.3.2006, he has seen the accused while being seated in the Police Station. 11. PW.3-Govindaiah.B.M. was an ASI, who was also on duty on the night of incident. His evidence regarding the occurrence of incident is similar to that of PW.2. He has also not noted the registration number of the vehicle nor he has spoken regarding the identity of the driver on the date of incident. He has also stated that he has seen the driver first time in the Police Station. 12. PW.4-Prabhakar Bayari. K. is the Inspector of Police, Ulsoorgate Police Station. He has registered the case, sent a wireless message to the Bangalore Police to stop the Scorpio vehicle, wherever found and subsequently he has conducted the spot mahazar and further handed over the investigation to PW.25-Manjunath S.H. 13. PW.5-Smt.Subbalakshmi is the registered owner of the vehicle. However, she has turned hostile to the case of the prosecution stating that during the relevant period, the vehicle was not used on the M.G. Road and that she was using the said vehicle for her personal use. 14. PW.6-Doddasiddaiah A.S. is the signatory to the Inquest proceedings-Ex.P6. PW.5-Smt.Subbalakshmi is the registered owner of the vehicle. However, she has turned hostile to the case of the prosecution stating that during the relevant period, the vehicle was not used on the M.G. Road and that she was using the said vehicle for her personal use. 14. PW.6-Doddasiddaiah A.S. is the signatory to the Inquest proceedings-Ex.P6. PW.7-Govinda Raj; PW.8-irshad Ahammed and PW.9-Firoz Ahammed have turned hostile to the case of the prosecution, PWs.8 and 9 being the witnesses to the seizure of the vehicle in question. 15. PW.10-K.G.Ravi, is also a constable, who was present at the scene of occurrence on the date of incident. However, his evidence is similar to that of PW.2. 16. PW.11-Mahadesh, was appointed for tracing the vehicle involved in the accident and he has stated that on 20.3.2006, he found one black colour Scorpio Vehicle bearing registration No. KA-04-MC-5055 near the Blue Valley Resorts, Nandidurga and on identifying the same, he brought the same to Bangalore and produced before the IO alongwith the report. 17. PW.12-Sanjay.N, is the Junior Engineer, who was prepared the sketch of scene of occurrence as per Ex.P10 18. PW.13-Velu, is the Head Constable, who was also present at the scene of occurrence and his evidence is similar to that of PW.2. 19. PW.14-Moorthy.G, is another constable, who was also present at the scene of occurrence. However, none of these witnesses have stated regarding the vehicle number and driver as on the date of incident. 20. PW.15-Dhanarajachar, is the Director of Regional Forensic Science Laboratory, Bangalore during the relevant period. He has stated that he has compared the yellow colour paint pieces and also the paint found on the Scorpio vehicle and compared the same extracted by police from the road barricade. He has stated that the painting found on the vehicle was similar to that of the paint found on the barricade. However, in the cross-examination, it is stated that the dent found in the vehicle was an old dent. It is also admitted by him that the barricade which had colluded with the vehicle has not been produced before him nor it is examined by him. 21. PW.16-Rao Ganesh, is the Inspector of Police, Shivajinagar Traffic Police Station, who was also present at the scene of occurrence and his evidence is similar. It is also admitted by him that the barricade which had colluded with the vehicle has not been produced before him nor it is examined by him. 21. PW.16-Rao Ganesh, is the Inspector of Police, Shivajinagar Traffic Police Station, who was also present at the scene of occurrence and his evidence is similar. However, he has not stated regarding the vehicle number being found at the time of incident and also the person, who drew the vehicle as on the date of incident. In the cross-examination, he has stated that he cannot definitely say whether the vehicle was of the Black colour or Maroon colour. 22. PW.17-Moulendra Prasad, is another constable, who has stated similarly to that of PW.16 as well as PW.2. 23. PW.18-Srinivas Moorthy, is the Motor Vehicles Inspector, who has stated that he has examined the Scorpio Vehicle produced before him and gave report as per Ex.P16. In the cross-examination, he has stated that he cannot say the age of the dent found on the vehicle. It is further admitted by him that the dent found in the vehicle could be caused if a stone is thrown on the vehicle and if the vehicle comes into contact with such a stone. 24. PW.19-Dhananjaya, is the constable, who has assisted PW.25 during investigation. 25. PW.20-Chandrashekhar Bilagu; PW.21-Vidyuth; PW.22-Ningaraju; PW.23-Krishnappa R, have turned hostile to the case of the prosecution. However, PW.21, who is the complainant in this case, has also not supported the case of the prosecution. Insofar as the identity of the Scorpio vehicle produced in the Police Station is concerned, he has stated that he is not able to identify the vehicle produced before the Court or Police Station. 26. PW.24-Dr.R.Nirmala, has stated that she was working in the Bowring Hospital during the relevant period and she has given first aid to the deceased-Arun Kumar at about 00.30 hours on 19.3.2006 who was brought in respect of a road traffic accident. 27. PW.25-Manjunath S.H. is the Investigating Officer who has conducted the investigation initially and held the Inquest proceedings on the dead body and sent the dead body to the post-mortem examination and thereafter released the dead body to the relatives of the deceased. He has also sent the materials found in the recovered vehicle-MO.1 for FSL, Bangalore for its opinion. Subsequently, he has handed over the investigation to PW.26. 28. He has also sent the materials found in the recovered vehicle-MO.1 for FSL, Bangalore for its opinion. Subsequently, he has handed over the investigation to PW.26. 28. PW.26-B.K.Shivaram, after completion of the investigation has filed a charge sheet in this case. 29. After careful scrutiny of the above evidence of the prosecution witnesses and the materials on record, the learned Sessions Judge has held that the prosecution has not been able to prove that the respondent was the driver of the vehicle and therefore passed an order of acquittal. 30. Heard Sri G.M. Srinivasa Reddy, learned HCGP for the Appellant/State and Sri M. Partha, learned Counsel for the Respondent. 31. Sri G.M. Srinivasa Reddy, learned HCGP for the Appellant/State submits that from the evidence of the prosecution witnesses, more particularly, the evidence of PWs.2, 3, 4, 11 and 13, it is clear that the vehicle involved in this case was black colour Scorpio vehicle bearing registration No. KA-04-MC-5055 and that the said vehicle when seized was found containing a dent on its right front portion. The accused was unable to give any explanation regarding the said dent and therefore the prosecution has charge sheeted the respondent-accused for having committed the accident, which has resulted in the death of the deceased-Arun Kumar. He has also further submitted that though majority of the prosecution witnesses do not identify the accused, PWs.16 and 17 have identified the accused and hence, he submits that the order of acquittal is perverse and the said order may be reversed by holding that the respondent is guilty of the offence under Section 304-A of IPC and other connected offences under the Motor Vehicles Act for which he stood charge sheeted. 32. Sri M. Partha, learned Counsel for the Respondent on the other hand submits that the learned Sessions Judge has found that none of the witnesses are the eye witnesses who have seen the accused driving the vehicle neither any identification marks of the driver have been disclosed at the time of filing the complaint or before the accused was arrested by the police. He submits that it is admitted by the IO that nearly 200-250 scorpio vehicles were summoned before the Police Station and that ultimately the Police Inspector chose the vehicle of the respondent since there was a dent on the right side of the said vehicle. He submits that it is admitted by the IO that nearly 200-250 scorpio vehicles were summoned before the Police Station and that ultimately the Police Inspector chose the vehicle of the respondent since there was a dent on the right side of the said vehicle. However, it is deposed by PW.15, the Director of Regional Forensic Science Laboratory that the dent found in the vehicle of the respondent was an old one and therefore the very identification mark on the vehicle is not proved to be the one which was caused at the time of accident. He further submits that PW.5 being the registered owner of the vehicle has also not supported the case of the prosecution nor there is any evidence to show that on the night of the incident PW.5 or any other person has taken out the vehicle from their house and therefore he submits that even regarding the vehicle being used on the date of accident is not proved by the prosecution beyond reasonable doubt. Hence, the learned Sessions Judge has rightly come to the conclusion that the prosecution has not proved that it is the respondent and respondent alone who has caused the accident on the date of incident. He also further submits that the barricade, which was the cause of the accident on the night and which is alleged to have collided with the Car has not been seized nor produced before the Court nor it was produced before the Forensic Science Laboratory to compare the paint which was allegedly found in the barricade with that found on the vehicle. Under the circumstances, he submits that the important link between the incident and the accused has also been not established. It is his further submission that the legal heirs of the deceased had filed a motor vehicle claim case against the vehicle of the respondent. But the Principal MACT., and Civil Judge, Court of Small Causes, Bangalore has dismissed the said claim by its Judgment dated 2.9.2010 in MVC No. 3692/2006 holding that the petitioners therein have not proved the vehicle, which involved in the accident. Under the circumstances, he submits that the Judgment of the trial Court may not be disturbed and the appeal may be dismissed. 33. I have carefully gone through the evidence of the prosecution witnesses and also the materials on record. Under the circumstances, he submits that the Judgment of the trial Court may not be disturbed and the appeal may be dismissed. 33. I have carefully gone through the evidence of the prosecution witnesses and also the materials on record. I have gone through the Judgment of acquittal passed by the trial Court. On a careful scrutiny of the Judgment of the trial Court, it is seen that the said Judgment is based on the evidence on record and is neither perverse nor against the settled principles of law. It is seen from the evidence of the prosecution witnesses that none of the witnesses have spoken regarding the identity of the driver nor the identity of the vehicle as on the date of the accident. It is in the evidence that 200 to 250 Scorpio vehicles were summoned by the IO and out of the said vehicle, the respondent's vehicle was chosen for filing the charge sheet on the basis of the dent on the right side of the said vehicle. However, PW.15-Director of Regional FSL has clearly stated that the said dent is an old one which was caused prior to the incident and not the one connecting to the accident. It is also seen that the barricade which was the cause of the collision between the Scorpio vehicle and the barricade has not been produced before the FSL nor seized by the IO so as to compare the paint in the barricade to the one which was found on the scorpio vehicle on its dent. 34. Under the circumstances, the connection of the vehicle in the accident is not proved by the prosecution so far as the respondent is concerned. Neither PW.2 nor PW.21, who is the original complainant have ever stated in their complaint that they have seen the driver of the Scorpio Car on the date of incident. Under the circumstances, I am of the opinion that the learned Sessions Judge has rightly held that the prosecution has not proved the case against the respondent beyond all reasonable doubts. 35. Further this being an appeal against an order of acquittal, the Appellate Court should not disturb the finding of the trial Court, acquitting the accused unless the Judgment is perverse or the same is against the settled principles of law or it is not based on the evidence on record. 35. Further this being an appeal against an order of acquittal, the Appellate Court should not disturb the finding of the trial Court, acquitting the accused unless the Judgment is perverse or the same is against the settled principles of law or it is not based on the evidence on record. After scrutinizing the evidence on record and the materials placed before the Court below, I am of the considered view that the Judgment is based on the evidence on record and relies on the settled principles of law. There is no perversity in the well considered Judgment of the trial Court and in that view of the matter there is no merit in this appeal, so as to interfere with the order of acquittal passed by the trial Court. 36. In that view of the matter, this appeal is liable to be dismissed and accordingly appeal is dismissed.