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2015 DIGILAW 426 (KAR)

State of Karnataka v. Kallesha Driver

2015-04-13

P.D.WAINGANKAR

body2015
JUDGMENT : P.D. Waingankar, J. 1. This appeal is preferred against the judgment and order dated 3.5.2010 in C.C. No. 467/2008 on the file of the I Addl. Civil Judge & JMFC, Kadur, whereby the accused has been acquitted of the charges under sections 279, 337, 338 and 304-A of IPC. Prosecution case briefly stated as under: On 15.4.2008 one Kalleshappa-PW-1, Parameshwarappa- PW-5, Nanjundappa-PW-6, Eshwarappa-PW-7, Kotturappa-PW-8 and one Neelamma-deceased along with others were travelling in Mahindra Bolero pick up van bearing registration No. KA.18-A- 2278 belonging to one Jagadeesh at 6.30 p.m. from Mathihalli to Dombarahalli to a temple. The respondent-accused was driving the vehicle. At about 7.30 p.m., when it reached near Hanmantpur Gate, on account of rash and negligent driving of Mahindra Bolero pick up van, it went off the road and dashed against a roadside tree. As a result, all the inmates of the vehicle sustained grievous injuries. They were shifted to the Government Hospital, Kadur. While undergoing treatment, injured Neelamma succumbed to the injuries. A complaint came to be lodged by one Kalleshappa-PW1 before Singatagere Police station as per Ex. P.1. On the strength of Ex. P.1, Cr. No. 14/2008 came to be registered by PW-10 N. Manjunath P.S.I. against the respondent-accused, the driver of the vehicle for the offences punishable under sections 279, 337 and 338 of IPC. PW-10 recorded the statements of all the injured while they were undergoing treatment in Hospital. Neelamma died while undergoing treatment. As such, Section 304-A of IPC came to be added. The investigating Officer obtained the wound certificates of all the injured witnesses Exs.P-8 to P-12, report of the motor vehicle Inspector Ex. P-19, post mortem report of Smt. Neelamma Ex. P-18 and after completion of the investigation, charge-sheet came to be filed by PW-12-M.P. Nagaraj, the CPL, against the respondent/accused for the offences punishable under sections 279, 337, 338 and 304-A of IPC before the JMFC, at Kadur. 2. The respondent/accused having pleaded not guilty to all the charges levelled against him, the prosecution has examined as many as 12 witnesses as PW 1 to PW12 and relied upon 26 documents which are at Exs.P.1 to P.26. 3. 2. The respondent/accused having pleaded not guilty to all the charges levelled against him, the prosecution has examined as many as 12 witnesses as PW 1 to PW12 and relied upon 26 documents which are at Exs.P.1 to P.26. 3. The learned Magistrate after hearing the submissions made by the Public Prosecutor and the defence counsel and on appreciation of the evidence by the impugned judgment and order recorded a finding that the charges levelled against the accused/respondent were not proved, which resulted in acquittal of the accused. 4. Questioning the legality of the judgment and order passed by the learned Magistrate, this appeal is preferred by the State. 5. I have heard the learned Government Advocate and learned amicus curiae for the respondent. Perused the records and the judgment of the court below. 6. The learned Government Advocate while taking me through the records would submit that all the injured witnesses who were travelling in the van have categorically deposed that due to negligence of the driver, he lost control over the vehicle and thereby it went off the road and dashed against roadside tree, which resulted in death of Smt. Neelamma and injuries to other inmates. The learned Magistrate has wrongly held that the witnesses have not spoken about the speed of the vehicle and negligence of the driver. When the vehicle went off the road and dashed against a tree, it is for the driver to explain under what circumstances the accident occurred. It is wrong on the part of the Magistrate to expect explanation from the injured inmates of the vehicle. Hence, the learned Government Advocate sought to reverse the judgment of acquittal and convict the accused. 7. The learned amicus curiae for the respondent/accused would argue in support of the judgment of acquittal and sought for dismissal of the appeal as bereft of merits. 8. It is not in dispute, that on 15.4.2008 one Kalleshappa-PW1, Parameshwarappa-PW5, Nannjundappa-PW6, Ishwarappa-PW7, Kotturappa-PW-8 and Smt. Neelamma along with others were travelling in Mahindra Bolero pick up vehicle bearing registration No. KA-18-A-2278 from Mathihalli to Dombarahalli which was being driven by accused/respondent. 8. It is not in dispute, that on 15.4.2008 one Kalleshappa-PW1, Parameshwarappa-PW5, Nannjundappa-PW6, Ishwarappa-PW7, Kotturappa-PW-8 and Smt. Neelamma along with others were travelling in Mahindra Bolero pick up vehicle bearing registration No. KA-18-A-2278 from Mathihalli to Dombarahalli which was being driven by accused/respondent. It is the case of the prosecution that on account of the rash and negligent driving of the driver-accused/respondent, the van went off the road and dashed against the roadside tree and thereby all the aforesaid persons travelling in the vehicle sustained grievous injuries for which they were treated in the Government hospital, Kadur. The wound certificates are produced and marked as Exs.P.8 to P. 12, Ex. P.20 and Ex. P.22 to Ex. P.26. In all these wound certificates, it is mentioned that they have sustained injuries in a road traffic accident. Ex. P.18- P.M. report of Neelamma who died in the said accident while undergoing treatment in the Government hospital at Kadur. All the aforesaid witnesses PW-1, PW-5, PW-6, PW-7, PW-8 have categorically deposed that while they were travelling in the said van, because of rash and negligent driving, the driver lost control over the vehicle and thereby it went off the road and dashed against the roadside tree. 9. It is deposed as under by all the aforementioned witnesses: (Vernacular matter omitted... Ed.) There is nothing in the cross-examination of these witnesses except suggestion that just to claim compensation, negligence has been attributed to driver which has been denied. 10. The motor Vehicle Inspector's report marked as Ex. P.19 would disclose that the accident was not due to mechanical defects. Ex P-14 spot sketch reveals that the vehicle went off the road and dashed to a tree situated at a distance of 20 feet away from the edge of the road. The accused in his examination under section 313, Cr.P.C. has not given any explanation as to how the vehicle went off the road and dashed against the roadside tree. The learned Magistrate found fault with the inmates of the van for the reason that they were travelling in a goods vehicle which is an untenable reason. What is to be seen is, whether the accident has occurred on account of the negligence of the driver of the vehicle. The learned Magistrate found fault with the inmates of the van for the reason that they were travelling in a goods vehicle which is an untenable reason. What is to be seen is, whether the accident has occurred on account of the negligence of the driver of the vehicle. There is sufficient, cogent and reliable evidence PW-1, PW-5, PW-6, PW-7, PW-8, who have categorically stated that while they were proceeding on the said vehicle and on account of the rash and negligent driving, the driver lost control over the vehicle and thereby it went and dashed against a roadside tree. That itself speaks the total negligence on the part of the driver-accused/respondent of the van. Since he has not given any explanation, the learned Magistrate ought to have recorded a finding that the accident and the resultant injuries sustained by PW-1, PW-5, PW-6, PW-7, PW-8 and death of one Neelamma was on account of the negligence of the accused-driver/respondent of the van. That was the only possible view that should have been taken by the Magistrate in view of enough concrete and acceptable evidence placed on record. As such, the judgment and order passed by the court below is liable to be set aside. Accordingly, I pass the following. ORDER The appeal is allowed. The judgment and order dated 3.5.2010 in C.C. No. 467/2008 on the file of the I Addl. Civil Judge & JMFC, Kadur, is hereby set aside. The respondent-accused is convicted for the offences punishable under sections 337, 338 and 304-A of IPC. The respondent is sentenced to undergo Simple Imprisonment for a period of one month for the offence punishable under section 337 of IPC. Further he is sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs. 1,000/- and in default to undergo Simple imprisonment for a period of one month for the offence punishable under Section 338 of IPC. Further the respondent is sentenced to undergo imprisonment for a period of six months and to pay a fine of Rs. 1,000/-, in default, to undergo Simple imprisonment for a further period of one month. All the substantive sentences shall run concurrently. I place on record the valuable assistance provided by Sri. P. Mahadeva Swamy Amicus Curiae. The registry is directed to pay a sum of Rs. 4,000/- as honorarium to the Amicus Curiae. 1,000/-, in default, to undergo Simple imprisonment for a further period of one month. All the substantive sentences shall run concurrently. I place on record the valuable assistance provided by Sri. P. Mahadeva Swamy Amicus Curiae. The registry is directed to pay a sum of Rs. 4,000/- as honorarium to the Amicus Curiae. Send the records and copy of the judgment to the Magistrate for implementation of the order.