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Karnataka High Court · body

2019 DIGILAW 2026 (KAR)

Girish G. L. v. State of Karnataka

2019-09-18

B.A.PATIL

body2019
ORDER : 1. Though this case is listed for admission, with the consent of learned counsel for petitioner and learned High Court Government Pleader, the same is taken up for final hearing. 2. I have heard the learned counsel for the petitioner and the learned HCGP for respondent-State. 3. The genesis of the case of the prosecution in brief is that, on 16.01.2013 at about 3.30 p.m. the accused being the driver of a KSRTC bus bearing Reg.No.KA-09-F-4094 by overtaking another bus at Turvekere - Tiptur road, drove the same in a rash and negligence manner, so as to endanger human life and personal safety of others, dashed against the rider of motor cycle bearing Reg.No.44-J-7460 and caused the accident and as a result of the same, the rider of the motor cycle sustained grievous injuries. On the basis of the complaint, a case has been registered and after investigation, charge sheet was filed. 4. The learned Magistrate took the cognizance and secured the presence of the accused and after following formalities as required under Section 207 of Cr.P.C. plea was recorded. Accused pleaded not guilty and claimed to be tried and as such, the trial was fixed. 5. In order to prove the case of the prosecution, it has got examined PWs. 1 to PW-8 and got marked documents at Ex.P-1 to Ex.P-11. After completion of prosecution evidence statement of the accused was recorded under Section 313 of Cr.P.C. wherein the accused has denied the incriminating evidence appearing against him but he has not lead any evidence and has not produced any documents from his side. 6. After hearing learned counsel for the appellant and learned Additional Prosecutor, the learned Senior Civil Judge, JMFC, Turuvekere, convicted the accused for the offences punishable under Sections 279, 337 and 338 of IPC. Being aggrieved by the same, appellant preferred an appeal before learned District Judge. Learned District Judge also dismissed the appeal by confirming the order of the trial Court. Challenging the same, the petitioner-accused is before this Court. 7. It is the submission of learned counsel for the petitioner-accused that trial Court as well as the first appellate court without properly appreciating the evidence of PWs-1 and 2 have given their own conclusion and wrongly convicted the accused. Witnesses have not deposed about the rash and negligent act of the petitioner-accused including the injured. 7. It is the submission of learned counsel for the petitioner-accused that trial Court as well as the first appellate court without properly appreciating the evidence of PWs-1 and 2 have given their own conclusion and wrongly convicted the accused. Witnesses have not deposed about the rash and negligent act of the petitioner-accused including the injured. Under such circumstances, conviction arrived by the Court below and confirmed by the first appellate Court are contrary to the facts and evidence on record. He further submitted thatPW-2 has admitted in his evidence that there is bridge immediately after the bus stop and prior to the bus stop the alleged accident has taken place. Under such circumstances, even the bus driven by the accused in a rash and negligent manner does not arise at all. Without looking into said facts, the Court below has come to a wrong conclusion and has wrongly convicted the accused. On these grounds, he prays to release the accused- petitioner and to set aside the impugned Judgments. 8. Per contra, the learned HCGP vehemently argued and submitted that the evidence of PWs-1 and 2 clearly goes to show that accused was driver of the KSRTC bus and in order to over take another KSRTC bus he dashed against the motor cycle, which was coming from opposite direction. As a result, the driver of the motor cycle sustained grievous injuries to his leg and other parts of the body and other evidence has discussed during the course of cross-examination. He further submitted that the cross-examination of PW1 itself clearly goes to show that act of the accused-petitioner about rash and negligent driving has been proved and he further submitted that PW2 is also an independent witness and has supported the case of the prosecution. The trial Court as well as first appellate Court after considering the materials placed on record has come to the conclusion that the driver of the KSRTC drove the bus in a rash and negligent manner and because of the said act PW1 has sustained injuries. There are no grounds to allow the petition. On these grounds he prays to dismiss the petition. 9. I have carefully and cautiously gone through the submissions made by learned counsel for the parties and perused the evidence, which was made available by the learned counsel for the petitioner-accused. 10. There are no grounds to allow the petition. On these grounds he prays to dismiss the petition. 9. I have carefully and cautiously gone through the submissions made by learned counsel for the parties and perused the evidence, which was made available by the learned counsel for the petitioner-accused. 10. PW1 is the injured eye witness, who was a rider of the motor cycle bearing Reg.No.KA-44-J-7460. In his evidence, he has deposed that two KSRTC buses were going one behind the other and the driver of the KSRTC bus in an attempt to over take another bus hit the motor cycle driven by PW1, even though he was on the left side of the road as the bus was in high speed at the time of accident. Immediately CW1 came to the spot and called ambulance and the injured was sent to the hospital. During the course of cross-examination, he has admitted that at a short distance there is a bridge and at a shorter distance there is a bus stop and near the bus stop the alleged accident has taken place, except that nothing has been elicited from the mouth of this witness. However, during the course of cross-examination, it has been suggested that alleged accident has not taken place due to rash and negligent act of the accused, the same has been denied. PW2 is the complainant; he has also reiterated the evidence of PW1. He has deposed that the driver drove the bus in a high speed and dashed the motor cycle. He has also deposed that mahazar was drawn as per Ex-P2 for having seized the said vehicles. He has also admitted during the course of cross-examination that there is a bridge at a distance of 10 meters and other suggestions have been denied. PW3 is the conductor, who was in the said bus at the time of accident and he has not supported the case of the prosecution and he has been treated as hostile. PW4 is the independent spot-cum-seizure mahazar witness who has completely turned hostile and not supported the prosecution case. PW5 is an independent spot-cum-seizure mahazar witness to Ex-P2 he has supported the case of the prosecution. PW6 is traffic controller, he has been treated as hostile. PW4 is the independent spot-cum-seizure mahazar witness who has completely turned hostile and not supported the prosecution case. PW5 is an independent spot-cum-seizure mahazar witness to Ex-P2 he has supported the case of the prosecution. PW6 is traffic controller, he has been treated as hostile. PW7 is a Depot Manager, who deposed that he has issued Ex-P6 and Ex-P7 documents with respect to work done by the accused and PW3 was working as a conductor. PW8 -PSI, who investigated the case and filed the charge sheet as against the accused. In his cross-examination, he has admitted that he has not seized the vehicles and he has not submitted the P.F. to the Court, except that nothing has been elucidated. 11. On close reading of the evidence of PW1, nowhere in his examination in chief, he has deposed that the alleged accident has taken place due to rash and negligent act of the petitioner-accused, so also in the evidence of PW2, he has stated that the alleged accident has taken place due to the fault of the accused. He has not spoken anything about the rash and negligent act of the accused. Though during the course of argument, the learned HCGP submitted that though witnesses have not supported the case by deposing that there is rash and negligent act on the part of the accused, but the suggestion has been made that the alleged accident has not been taken place due to rash and negligent act of the accused, that itself goes to show that he has supported the case of the prosecution to hold that alleged accident has taken place due to rash and negligent act of the accused. When the witnesses have not clearly stated in examination-in-chief about the rash and negligent act of the petitioner-accused, then under such circumstances, the suggestion made cannot be taken into consideration for the purpose of convicting the accused. It is well settled proposition of law that prosecution has to win on its own leg and it should not take the weakness of the defence to prove its case. 12. Taking into consideration the above said facts, I am of the considered opinion that contention of the learned HCGP that the suggestion made is going to prove the case of prosecution cannot be accepted. 12. Taking into consideration the above said facts, I am of the considered opinion that contention of the learned HCGP that the suggestion made is going to prove the case of prosecution cannot be accepted. By looking into the deposition of PW1 and PW2, who are stated to be the eye witnesses to the incident have stated that alleged accident has taken place due to negligence act of the petitioner-accused. It is well settled proposition of law that in order to prove the guilty of accused under Section 338 of IPC, the prosecution has to clearly establish the fact that alleged accident has taken place due to rash and negligent act of the petitioner-accused. In the evidence of witnesses there is no worth material to prove the guilty of the accused. Subsequently, during the course of appreciation, all these aspects which have been discussed above have not been properly appreciated by the trial court as well as by the first appellate court. Looking from any angle, the Judgments of learned Magistrate as well as the first appellate court are not sustainable in law and the same are liable to be set aside. 13. Accordingly, Criminal Revision Petition is allowed and the Judgment passed by V Additional District and Sessions Judge, Tiptur, in Crl. App. No. 10010/2017 dated 05.08.2019 and consequently the Judgment passed by Senior Civil Judge and JMFC, Turuvekere in Criminal Case No.374/2013 dated 25.02.2017 are set aside and accused is acquitted of all the charges leveled against him. 14. The bail bonds executed by accused and sureties stand cancelled. 15. In view of the disposal of the main petition, IA.No.1/2019 does not survive for consideration. Hence, IA.No.1/2019 is disposed of.