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2019 DIGILAW 1751 (KAR)

State of Karnataka v. G. Anand

2019-07-19

B.A.PATIL

body2019
JUDGMENT : B.A. Patil, J. This appeal has been preferred by the State being aggrieved by the judgment and order of acquittal, dated 05.01.2018, passed by the Additional Civil Judge and Judicial Magistrate First Class, Bhatkal, in C.C. No.838/2015, whereby the respondent/accused has been acquitted of the offences under Section 279, 304A of IPC and Section 187 of the Indian Motor Vehicles Act. 2. I have heard learned High Court Government Pleader for the appellant-State and the learned counsel for the respondent/accused. 3. Brief facts of the case are that on 05.10.2014, at about 0030 hours, the respondent/accused, being the driver of the mini bus bearing registration No.KA-51/B-5447, is alleged to have driven the said mini bus in a rash and negligent manner endangering the human life and safety, and when the said vehicle was near Naveen Beach Resort road, it ran over a person who was sleeping on the beach road and caused his death on the spot. On the basis of the complaint filed by C.W.1, a case was registered in Crime No.125/2014 and, after investigation, a charge sheet was filed. The Court below, after serving the copies of the charge sheet and after hearing, recorded the plea of the accused. Thereafter, prosecution got examined 13 witnesses as P.Ws.1 to 13 and got marked 14 documents as Exs.P.1 to P.14. The statement of accused under Section 313 was recorded. After hearing the parties and considering the evidence on record, accused was acquitted. Challenging the legality and correctness of the said judgment and order, the State is before this Court. 4. It is the specific contention of the learned High Court Government Pleader that there is corroboration of the evidence of P.W.1 and other witnesses with regard to the alleged accident. It is his further submission that P.W.10, the owner of the vehicle, has supported the case of the prosecution to the effect that as on the date of the accident, accused, being the driver of the said mini bus, was driving the same. It is not in dispute that the said bus met with an accident and ran over the deceased and as a result of the same, he succumbed to the injuries. It is his submission that these aspects have not been properly considered and appreciated by the Court below. It is not in dispute that the said bus met with an accident and ran over the deceased and as a result of the same, he succumbed to the injuries. It is his submission that these aspects have not been properly considered and appreciated by the Court below. It is his submission that the mahazars and other documents which have been produced clearly go to show that the alleged accident had taken place due to the rash and negligent act of the driver of the said bus; the respondent/accused has not explained the circumstances under which the alleged accident had taken place; when that particular fact was purely within the knowledge of the respondent/accused and he has not come forward to explain the same, then a presumption can be drawn that because of the rash and negligent act of the accused the alleged accident has taken place. On these grounds, he prayed to allow the appeal and to convict the accused for the offences alleged against him. 5. Per contra, learned counsel for the respondent/accused, justifying the judgment and order of the Trial Court, submitted that the alleged accident had taken place at 0030 hours and it cannot be believed that P.W.1 is an eyewitness to the alleged incident. It is his further contention that the deceased was sleeping on the road and at that time, the alleged accident has taken place and under such circumstances, it cannot be said that the alleged accident had taken place due to rash and negligent act of the respondent/accused. It is his further submission that P.W.1 is a prime witness who has deposed that after hearing the vehicle sound, he got up and at that time, the accident had already taken place and the same goes to show that P.W.1 is not an eyewitness to the alleged accident. He further submits that the Trial Court, after appreciating the evidence on record, has rightly acquitted the respondent/accused and that there are no good grounds to entertain this appeal so as to interfere with the order of the Trial Court. On these grounds, he prayed to dismiss the appeal. 6. I have carefully and cautiously considered the submissions made by the learned counsel appearing for the parties and perused the records. 7. On these grounds, he prayed to dismiss the appeal. 6. I have carefully and cautiously considered the submissions made by the learned counsel appearing for the parties and perused the records. 7. In order to prove its case, the prosecution examined 13 witnesses as P.Ws.1 to 13 and got marked 14 documents as Exs.P.1 to P.14. 8. P.W.1 is the complainant and an eyewitness to the alleged accident. In his evidence, P.W.1 has deposed that himself, the deceased and others came to Murudeshwar on 04.10.2018 at about 9.00 p.m., and as they did not get any room, they were sleeping by the side of the road; at about 0030 hours, a mini bus came and the wheels of the said vehicle ran over the head of the deceased. However, in the cross-examination P.W.1 states that on hearing the sound of the vehicle, he woke up and along with him, C.Ws.2 to 9 and 11 were sleeping and thereafter, he went and filed the complaint as per Ex.P.1. 9. P.Ws.2 to 9 have reiterated the evidence of the P.W.1. P.W.2 is a panch witness to the spot mahazar to Ex.P.3; he has partly supported the case of the prosecution. P.W.3 is a panch witness to Ex.P.7. P.W.4 is another witness; he has deposed in the line of P.W.1; he has stated that on hearing the sound of the vehicle he woke up and thereafter he came to know about the accident. P.W.5 is the mother of the deceased, and P.W.6 and P.W.7 are the relatives of the deceased and their evidence would not help the case of the prosecution in any manner as they went to the place of accident only after the accident had taken place. The owner of the vehicle has deposed that as on the date of the accident, the respondent/accused was driving the said vehicle. P.W.11 is the Head Constable who got the case registered against the accused on the basis of the complaint-Ex.P.1 and issued FIR. P.W.12 is the Police Inspector who partly investigated the case. P.W.13 is also a Police Inspector, who investigated the case and filed the charge sheet. 10. P.W.11 is the Head Constable who got the case registered against the accused on the basis of the complaint-Ex.P.1 and issued FIR. P.W.12 is the Police Inspector who partly investigated the case. P.W.13 is also a Police Inspector, who investigated the case and filed the charge sheet. 10. On close reading of the charge sheet material, admittedly, the alleged accident has taken place at 0030 hours and it is the case of the prosecution itself that the alleged accident has taken place when the deceased was sleeping on the road by the side of the beach. The spot mahazar-Ex.P.3 also indicates the fact that the accident has taken place on the road. The alleged accident has taken place at 0030 hours and at that time, the deceased was sleeping on the road. Roads are meant for movement of the vehicles; it is not a place where a person should sleep. Nobody can presume or expect that a person would be sleeping on the road which is meant for movement of the vehicles. In a normal circumstance, a person who drives the vehicle would not anticipate the situation, as in the instant case on hand, that a person would be sleeping on the road meant for movement of the vehicles. If any prudent person sleeps on the road he will be doing the same at his risk. If a person sleeps on the road that too in the night, and at that time, if a vehicle comes on that road, the driver of the said vehicle will not be in a position to control the vehicle and avoid the accident. P.W.1 came to be examined before the Court and from his evidence, it is also seen that the place where the accident has occurred is a sandy place and as such, there is no question of a vehicle being driven in a rash and negligent manner at high speed. Even though witnesses who have been examined have also deposed that as they did not get any room, they went and slept on the road; the deceased was sleeping first, and others were sleeping next to the deceased. It is not the case of the prosecution that the said vehicle ran over all the persons who were sleeping on the said road. It is not the case of the prosecution that the said vehicle ran over all the persons who were sleeping on the said road. It is also not the case of the prosecution that there is a footpath and that the deceased and others were sleeping on the footpath. From the records, it is seen that the deceased and others were sleeping on the road which was meant for plying the vehicles and no prudent man would sleep on the road. If a person sleep on the road meant for plying the vehicles, it cannot be expected that a person driving the vehicle would anticipate that a person would be sleeping and he would drive the vehicle carefully. Under the said facts and circumstances, I feel that the Court below, after considering the evidence on record, has come to a right conclusion that the driver of the said vehicle was not rash and negligent when the alleged accident has taken place, and has rightly acquitted the accused. Be that as it may. Even though prosecution examined P.W.1 as eyewitness, his presence and he getting up on hearing the vehicle sound is improbable. When all others were sleeping, why he was alert and by hearing the sound got up is not natural and probable. The similar situation is there in respect of other witnesses. In that light, the evidence of P.W.1 is also not acceptable. The evidence produced does not prove that the alleged accident took place due to rash and negligent driving of the respondent/accused. 11. I have carefully and cautiously gone through the judgment and order of trial Court. The order of the Trial Court is neither perverse nor illegal so as to interfere with the same. There are no good grounds to entertain the appeal. The appeal is devoid of merits and the same is liable to be dismissed. Accordingly, the appeal is dismissed.