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2019 DIGILAW 1131 (KAR)

State by Shirva Police Station v. Srinivas Kini

2019-06-06

MOHAMMAD NAWAZ

body2019
JUDGMENT : Mohammad Nawaz, J. This appeal is preferred by the State against the judgment and order of acquittal passed by the Trial Court, thereby acquitting the accused-respondent of the offence punishable under Sections 279 and 304-A of IPC. 2. I have heard Sri. Diwakar Maddur, learned HCGP appearing for the appellant-State. 3. The case of the prosecution in brief is that on 29.12.2016 at about 13.50 hrs. within the jurisdiction of Shirva Village Police Station, in front of Raksha Saloon Shop, Bantakallu, Shirva Village, Udupi Taluk, the accused being the rider of motor cycle bearing registration No.KA-20-EL-5943, rode the same from Katpady towards Shirva Village in a rash and negligent manner so as to endanger human life and hit against the pedestrian by name Santhosh who was standing by the side to cross the road, as a result of which, the said Santhosh sustained injuries on the back of his head and he was shifted to the Udupi Hi Tech Hospital, from there to KMC Hospital for higher treatment. However, he succumbed to the injuries on 30.12.2016 at about 1.20 p.m., 4. A case was registered against the accused in Crime No.132 of 2016 of Shirva Village Police Station and after completion of the investigation, charge sheet was filed for the offence punishable under Sections 279 and 304-A of IPC. 5. The accused pleaded not guilty to the accusation made against him and he came to be tried. The prosecution got examined PWs1 to 5 and got marked the documents at Ex.P1 to P14. The Trial Court after considering the evidence and material on record, acquitted the accused of the aforesaid offences by its judgment dated 04.05.2018 passed in Crl.C. No.709/2017. 6. Aggrieved by the aforesaid judgment and order of acquittal passed by the Trial Court, the present appeal has been preferred by the State. 7. The contention of the learned HCGP is that the prosecution has been able to prove the rash and negligent act of the accused in causing the accident by examining the material witnesses namely PWs2 and 3 who are the eye witnesses to the incident. He submitted that they have categorically deposed with regard to the manner in which the accident has taken place and the rash and negligent act of the accused. He submits that there are no material contradiction or inconsistency in the evidence of the prosecution witnesses. He submitted that they have categorically deposed with regard to the manner in which the accident has taken place and the rash and negligent act of the accused. He submits that there are no material contradiction or inconsistency in the evidence of the prosecution witnesses. He further submits that the evidence of PWs2 and 3 is further supported by the spot sketch marked as Exs.P3 and therefore, he contends that the finding recorded by the Trial Court that there is no rash or negligent act by the accused is illegal and erroneous. He further submits that according to the IMV report marked at Ex.P13, there is no mechanical defect and therefore he submits that the judgment and order of acquittal passed by the Trial Court may be set aside. 8. I have perused the impugned judgment passed by the Trial Court as well as the records made available by the learned HCGP. 9. It is the case of the prosecution that on 29.12.2016 at about 13.50 hours, the accused being the rider of the motor cycle bearing registration No.KA-20-EL-5943 by riding the said motor cycle in a rash and negligent manner from Katpady towards Shirva Village dashed against one Santhosh who was standing by the side of the road to cross the road as a result of which, he sustained injuries and thereafter succumbed to the injuries. 10. The prosecution has in all examined five witnesses to establish its case. PW1 is the complainant and he is the brother of the deceased. According to him, he received a phone call from another brother regarding the accident and he went to the hospital. After the death of his brother, he lodged complaint as per Ex.P1. In so far as the accident in question is concerned, PW1 is not an eye witness. PWs2 and 3 are the eye witnesses to the incident whose evidence will be discussed at a later stage. 11. Pw4 is the Inspector of Police at Shirva Village Police Station, who has stated that on 13.12.2016, when he was in the police station, at about 9.00 a.m., PW1 lodged the complaint, accordingly he registered Crime No.132/2016, which is marked as per Ex.P1 and sent FIR Ex.P12 to the jurisdictional court. Thereafter, he conducted Inquest Mahazar as per Ex.P8, Spot mahazar as per Ex.P2 and also prepared a rough sketch as per Ex.P3. Ex.P6 is the photograph. Thereafter, he conducted Inquest Mahazar as per Ex.P8, Spot mahazar as per Ex.P2 and also prepared a rough sketch as per Ex.P3. Ex.P6 is the photograph. He has seized the motor cycle bearing registration No.KA-20-EL-5943 which was in the police station under a mahazar as per Ex.P5. He has handed over the further investigation to CW-15 (PW5). 12. Pw5 is the Circle Inspector of Police. He has stated that on 09.01.2017, the accused was produced before him and he released the accused on bail. Further he received the post mortem report as per Ex.P9. After completion of investigation, he has filed charge sheet. 13. The accident in question and the accused being the rider of the motorcycle has been established by the evidence of the prosecution witnesses. Both the witnesses namely PWs2 and 3 have identified the accused as the person who caused the accident. The motor cycle was also seized and IMV report at Ex.P13 goes to show that there was damage caused to the motor cycle. According to the opinion of the Inspector of motor vehicle, the accident was not on account of any mechanical defect. 14. The evidence of PW2 is that on 29.12.2016, when he was at Bantakallu Auto Stand, the deceased who was known to him was standing by the side of the road. At that time, a motor cycle came from Katpady side towards Shirva Village in a rash and negligent manner, ridden by its rider and dashed against the deceased, on account of which, both the deceased as well as the rider of the motor cycle fell on the road. The deceased had sustained injuries on the back of his head and then, he was shifted to the hospital. The rider of the motor cycle had also sustained minor injuries. Later, he came to know that the deceased died in the hospital. In the cross-examination, he has stated that he is not aware as to why the deceased was crossing the road. He heard the sound, then he came to know that the accident has occurred and when he went to the spot, there were already other persons. He has further stated that he has not seen as to whether the deceased was crossing the road or not. He has also deposed that he does not know as to the speed of the motor cycle. He has further stated that he has not seen as to whether the deceased was crossing the road or not. He has also deposed that he does not know as to the speed of the motor cycle. He admits that the bike had fallen on the left side of the road. 15. The evidence of PW3 discloses that when he was standing in front of Bantakallu Auto rickshaw Stand, at that time, the deceased was standing in front of Raksha Saloon. The motor cycle ridden by its rider came in a rash and negligent manner from Katpady towards Shirva Village and dashed against the deceased and both the rider as well as the deceased fell on the road. The deceased had sustained injury on the back of his head and he was shifted to the hospital and again for higher treatment, he was shifted to KMC Hospital, but thereafter he succumbed to the injuries. He came to know regarding the death of the deceased, on the next day. 16. In the cross-examination, he has stated that about 10-15 minutes prior to the accident, he came to the bus stand. He know the deceased since he was from his Village. He says that he doesn't know as to the speed of the motor cycle. He says that since the motor cycle dashed against the right side of the deceased, he fell down and sustained injuries. However, he has stated that he has not seen whether the deceased was standing by the side of the kachcha road or on tar road. He states that the deceased was standing to cross the road and after the accident, he fell on the road. 17. The evidence of PWs2 and 3 are not corroborated with each other. PW2 has stated that he went to the spot after the accident in question, on hearing the sound and by the time he went to the spot, there were already other persons. PW2 having witnessed the accident seems doubtful. Though PW3 has stated that the rider of the motor cycle dashed against the right portion of the deceased. However, he has not stated as to where the deceased was standing at the time of the accident. PW2 having witnessed the accident seems doubtful. Though PW3 has stated that the rider of the motor cycle dashed against the right portion of the deceased. However, he has not stated as to where the deceased was standing at the time of the accident. The perusal of the sketch which is marked at Ex.P3 goes to show that the accident has occurred on the left side of the road and the motor cycle was traveling from Katpady to Shirva Village which was on the proper side. It does not disclose that the accident took place on the kachcha road. 18. The case of the defence is that while the deceased was trying to cross the road, the accident took place. The same cannot be ruled out since the evidence of PW2 cannot be accepted in view of the fact that he has admitted that he has seen the accident only after hearing the sound. The evidence of PW3 alone cannot be relied upon to hold that the prosecution has established the case against the accused beyond all reasonable doubts. It is observed by the trial court that the accident has occurred while the deceased suddenly rushed to cross the road without looking at the approaching vehicle. The rash or negligent act of the accused in riding the motor cycle has not been established by the prosecution beyond reasonable doubt. 19. From the aforesaid materials and evidence on record, the finding recorded by the Tribunal can not be said to be illegal or perverse. There is no merit in the appeal. Accordingly, the appeal is dismissed. Consequently, I.A. No.1/2019 is also dismissed.