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2019 DIGILAW 1276 (KAR)

State of Karnataka v. J. Arjun

2019-06-14

B.A.PATIL

body2019
JUDGMENT : B.A. Patil, J. Though this appeal is listed for hearing on interlocutory application, with the consent of the learned counsel appearing for the parties, the same is taken up for final disposal. 2. The present appeal has been preferred by the State being aggrieved by the judgment passed by the III Addl. District and Sessions Judge, Ballari, sitting at Hosapete, in Criminal Appeal No.5056/2016 dated 16.02.2018, where under the order of conviction was reversed and the respondent/accused is acquitted by setting aside the order passed by the Senior Civil Judge and JMFC, Kudligi in C.C.No.167/2014 dated 02.09.2016. 3. The case of the prosecution is that, on 16.09.2014 at about 1.00 pm, in front of the house of Sharadamma near Chapparadahalli bus stand, accused being the driver of Banashankari private bus bearing No.KA-16/B-6145, drove the same rashly and negligently and dashed against the TVS XL motorcycle bearing registration No.KA-35/X-6935. As a result, both the rider and pillion rider of the TVS XL motorcycle sustained injuries and subsequently the rider of the TVS XL motorcycle succumbed to the said injuries. On the basis of the complaint, a case has been registered and after investigation charge sheet has been filed against the accused. 4. After recording the plea, the trial Court recorded the evidence of PWs. 1 to 11 and got marked Exs. P1 to P16 and thereafter the statement of the accused was recorded under Section 313 Cr.P.C. The accused has not led any evidence. After hearing the Assistant Public Prosecutor and the learned counsel for the accused, the trial Court came to the conclusion that there is material as against the accused and he has been convicted for the offence punishable under Sections 279, 338, 304(A) and also under Section 183 of the Indian Motor Vehicles Act. Being aggrieved by the same, the accused/appellant preferred an appeal in Criminal Appeal No.5056/2016. The learned District and Sessions Judge by the judgment dated 16.02.2018 allowed the appeal and acquitted the accused/respondent. Being aggrieved by the same, the State is before this Court. 5. It is the contention of the learned High Court Government Pleader that the reasoning assigned by the First Appellate Court is contrary to the spot mahazer and other materials which have been produced before the Courts below. Being aggrieved by the same, the State is before this Court. 5. It is the contention of the learned High Court Government Pleader that the reasoning assigned by the First Appellate Court is contrary to the spot mahazer and other materials which have been produced before the Courts below. The trial Court without there being any evidence on record has observed that the deceased himself was responsible for the said accident. He further submitted that the reasoning and the observation of the first Appellate Court is not in accordance with law. It is his further submission that the evidence of eyewitnesses is corroborated with the evidence of the Investigating Officer and other witnesses and also the documents. He further submitted that, even in spite of sufficient material, the first Appellate Court has come to a wrong conclusion and the same is liable to be set aside and the accused be convicted for the alleged offences. On these grounds, he prays to allow the appeal. 6. Per contra, the learned counsel appearing on behalf of the respondent/accused vehemently argued and submitted that the first Appellate Court, after considering the evidence and material placed on record has rightly come to the conclusion that the alleged incident has not taken place due to the rash and negligent act of the driver of the bus. He further submitted that the first Appellate Court has observed in detail and thereafter passed an appropriate order. There are no good grounds to interfere with the order of the trial Court. On these grounds he prayed to dismiss the appeal. 7. I have carefully and cautiously gone through the submissions made by the learned High Court Government Pleader and the learned counsel appearing for the respondent/accused and perused the records. 8. In order to establish its case, the prosecution has got examined 11 witnesses. PW1 is the complainant, but he is not an eyewitness to the alleged accident. He has supported the case of the prosecution. He reached the spot when the injured was shifted to the hospital and on the basis of his complaint a case has been registered. His evidence is not going to throw any light in this behalf. 9. Pw2 is the eyewitness to the alleged incident. He has supported the case of the prosecution. He reached the spot when the injured was shifted to the hospital and on the basis of his complaint a case has been registered. His evidence is not going to throw any light in this behalf. 9. Pw2 is the eyewitness to the alleged incident. In his evidence he has deposed that, when he was returning from Kottur, after completing his bank work, the deceased was moving ahead of his vehicle in TVS XL motorcycle and CW8 was a pillion rider. At that time a bus came from opposite direction and dashed to the vehicle of the deceased and as a result of the same he fell down and sustained injuries. In the cross-examination he has admitted that generally he cannot identify the driver of the bus and its speed. He has further deposed in his statement before the police that, he has not specifically stated with the identity of the accused. 10. Pw3 is the brother of the deceased and pillion rider of the motorcycle. In his evidence also he has deposed that they were proceeding on a motorcycle and the bus hit to their vehicle which led to grievous injuries to himself and the deceased and later the deceased succumbed to the injuries. Though he has deposed that the accident occurred due to the fault of the bus driver, but as could be seen from the records and the sketch, the width of the road is 18 feet and it is the case of the prosecution that before the accident the bus was standing and they were making the passengers to alight from the bus and also allowed some passengers to board. Admittedly the alleged incident has taken place within 125 feet from the said spot. Even the records also shows that the deceased and PW3 were carrying two gunny bags of rice on a TVS XL motorcycle and the alleged incident has also taken place in the middle of the road. Though there is sufficient space on the other side of the bus, the rider of the motorcycle has not taken any proper care to take side and by ignoring the same he has come and hit to the bus when the said bus was admittedly stopped in the bus stop, thereafter it is started and the accident has taken place within 125 feet from the said stop. Under these circumstances nobody can imagine that the bus has come with high speed rashly and negligently and dashed to the motorcycle on which the deceased and PW3 were proceeding. In that light, the evidence of PW3 though he was the pillion rider is not acceptable. 11. Pw4 is also an eyewitness. He has also reiterated the evidence of PW3 and his evidence also is not acceptable in view of the discussion held by me above. PW5 is also another eyewitness. He has also supported the case of the prosecution, but his evidence is also not substantiable due to the above said facts and it is contrary to the factual situation which was existing at the time when the accident has taken place. PW6 is the PSI who has investigated the case and filed the charge sheet. PW7 is also the Investigating Officer who conducted part of the investigation. PW8 and PW9 are the mahazer witnesses. They have not supported the case of the prosecution and they have been treated as hostile and the evidence of other witnesses, which has been produced is also not cogent and reliable. 12. Under the said facts and circumstances, the first Appellate Court after considering the evidence has come to a right conclusion that the deceased has contributed to the said accident and the said accident has also taken place in the middle of the road and has rightly acquitted the accused/appellant. There are no good grounds to interfere with the said order. The order of the first Appellate Court deserves to be confirmed and accordingly it is confirmed. The appeal is devoid of merits and the same is liable to be dismissed. Accordingly the appeal is dismissed.