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2019 DIGILAW 1277 (KAR)

State of Karnataka v. Mahammad Jahid

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 learned High Court Government Pleader for the appellant and the learned counsel for the respondent/accused, the same is taken up for final disposal. 2. The present appeal has been preferred by the State being aggrieved by the judgment and order of acquittal, dated 20.07.2018, passed by the Principal Senior Civil Judge and Principal Judicial Magistrate First Class, Sirsi, in C.C. No.94/2016 whereby the respondent/accused was acquitted of the offences punishable under Sections 279, 338 and 304A of the Indian Penal Code. and under Section 3 read with Sections 181 and 196 of the Motor Vehicles Act. 3. I have heard learned High Court Government Pleader for the appellant-State and learned counsel for the respondent/accused. 4. The gist of the case of the prosecution is that on 07.06.2015, at about 4.30 p.m., when the complainant was proceeding on his motor cycle towards Sirsi on the Hubli road, in front of Ambedkar Bhavan, he saw a rider of TVS XL proceeding from APMC to Kotekere and when the said rider was taking turn towards right side after giving signal, another motor cycle rider came in a rash and negligent manner from Kotekere to APMC and dashed against the rider of the TVS XL. As a result of the said accident, the rider of the TVS XL vehicle fell on the road. The complainant went near the said rider and found that he had sustained injuries to the head and other injuries. Immediately, in 108 Ambulance, the rider was sent to the hospital. He lodged a complaint alleging that the accident had taken place due to rash and negligent riding of the motor cycle. On the basis of the said complaint, a case was registered in Crime No.43/2015 for the offences punishable under Sections 279, 338 and 304A of IPC. After investigation, a chargesheet was laid as against the accused. 5. The Court below took cognizance and recorded the plea and the evidence and on considering the same it came to the conclusion that the prosecution had failed to bring home the guilt of the accused and, therefore, acquitted the accused of the charges leveled against him. Being aggrieved by the same, the State is before this Court. 6. 5. The Court below took cognizance and recorded the plea and the evidence and on considering the same it came to the conclusion that the prosecution had failed to bring home the guilt of the accused and, therefore, acquitted the accused of the charges leveled against him. Being aggrieved by the same, the State is before this Court. 6. It is the submission of the learned High Court Government Pleader that the Trial Court ought to have taken into consideration the place of the accident and other aspects which corroborates the fact that the alleged accident had taken place due to rash and negligent act of the respondent/accused. It is his further submission that the Trial Court ought to have applied the principles of res ipsa loquitur, but, in the instant case, the Trial Court ignoring the said principle has acquitted the accused. It is his further submission that the Hon'ble Apex Court in the case of Ravi Kapur Vs. State of Rajasthan, (2012) 9 SCC 284 , has observed that if the facts and circumstances clearly goes to show that the accident occurred due to rash and negligent act of the accused, then under such circumstances, the doctrine of res ipsa loquitur can be applied and the accused can be convicted. This aspect has also not been properly considered and appreciated by the Trial Court. He further submitted that though there is ample material, the Court below erred in acquitting the accused. On these grounds, he prayed to allow the appeal and to set aside the impugned order. 7. Learned counsel appearing on behalf of the respondent/accused by justifying the judgment and order of the Trial Court, submitted that all the material witnesses have turned hostile and there is no material to bring home the guilt of the accused. He further submitted that the Trial Court has rightly acquitted the accused; there are no good grounds to admit the appeal and to proceed in the matter. On these ground, he prayed to dismiss the appeal. 8. I have carefully and cautiously considered the arguments of the learned counsel appearing for the parties and perused the records. 9. On a close reading of the case of the prosecution, it is found that the prosecution examined four witnesses as P.Ws.1 to 4 and got marked Exs.P.1 to P.11. On these ground, he prayed to dismiss the appeal. 8. I have carefully and cautiously considered the arguments of the learned counsel appearing for the parties and perused the records. 9. On a close reading of the case of the prosecution, it is found that the prosecution examined four witnesses as P.Ws.1 to 4 and got marked Exs.P.1 to P.11. P.Ws.1 and 3 are the panch witnesses; they have not supported the case of the prosecution and they have been treated as hostile. P.W.2 is the eyewitnesses and the complainant, so also P.W.4, but even they have not supported the case of the prosecution and have been treated as hostile. Even during the cross-examination of the said witnesses nothing has been elicited so as to substantiate the case of the prosecution. Taking into consideration the said material, as no witnesses supported the case of the prosecution and even the Investigating Officer who conducted the investigation had not been examined and the doctor has also not been examined, the Trial Court acquitted the accused. 10. It is the submission of the learned High Court Government Pleader that the Trial Court has ignored the decision of the Hon'ble Apex Court in Ravi Kapur's case quoted supra and the doctrine of res ipsa loquitur has not been applied. I am not having any difference of opinion regarding the said doctrine. The fact themselves substantiate that the accident in question has happened due to rash and negligent act of the accused. But, when there are eyewitnesses to the alleged accident and they have not supported the case of the prosecution under such circumstanced the said principle cannot be made applicable. Be that as it may. This is not a case where the said principle can be applied. If the accident had taken place in such a manner that the vehicle had left the road and hit to a road side tree, then under such circumstance, the doctrine of res ipsa loquitur can be applied. It is an admitted fact that the deceased was intending to take a right turn and, at that time, the rider of the motor cycle came and hit. It is an admitted fact that the deceased was intending to take a right turn and, at that time, the rider of the motor cycle came and hit. It is the specific case of the prosecution that the rider of the TVS XL gave signal to take right turn and at that time, the other motor cyclists came at a great speed and hit the rider of the TVS XL vehicle. At that time, whether the deceased gave signal to take a right turn or not or whether he took the turn suddenly without giving any signal are all facts that are to be ascertained only with the evidence of the eye witnesses. But, in the instant case, the material witnesses have not supported the case. In that light, the principles of res ipsa loquitur cannot be made applicable. 11. I have carefully and cautiously gone through the judgment and order of the Trial Court and perused the records. On a close reading of the said judgment, it is found that the Trial Court has not committed any error or illegality while passing the impugned order. The impugned judgment and order deserves to be confirmed and the same is confirmed. The appeal is devoid of merits; the same is liable to be dismissed and accordingly, it is dismissed.