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2020 DIGILAW 560 (KAR)

State Of Karnataka v. N. B. Venkataramana

2020-02-26

MOHAMMAD NAWAZ

body2020
JUDGMENT Mohammad Nawaz, J. - The State has preferred this appeal against the Judgment and Order of acquittal passed by the trial Court, acquitting the respondent of the offences punishable under Sections 279 and 304-A of IPC. 2. I have heard the learned HCGP appearing for the appellant/State and the learned counsel appearing for the respondent. 3. The case of the prosecution is that; On 29.04.2014 at about 5.30 p.m., the accused being the driver of Maruti Omni car bearing reg. No. KA-21/N-1963 drove the same in a rash and negligent manner from Panja to Bellare and when he reached near Tumbinamakki bus stop of Kalanja village in Suliya Taluk, went to the extreme right side of the road and hit against the motorcycle bearing reg. No. KA-21/Q-1897. On account of which the rider of the motor cycle by name Pavanraj was thrown to the road and sustained injuries and shifted to Mangalore hospital. However, he succumbed to the injuries at about 9.30 p.m. on 30.04.2014 and thereby the accused committed the offences punishable under Sections 279 and 304-A of IPC. The trial Court by its Judgment and Order dated 14.02.2019 passed in C.C. No. 685/2014, acquitted the accused. Aggrieved by which, the present appeal is preferred by the State. 4. It is the contention of the learned HCGP that the trial Court has erroneously acquitted the accused in spite of the evidence of eyewitnesses namely P.Ws.1 and 2, who have clearly deposed that the accused by driving his Maruti Omni car in a rash and negligent manner, went to the wrong side of the road and hit against the motorcycle coming from the opposite direction. On account of which, the rider of motorcycle sustained injuries and succumbed to the said injuries in the hospital. He contends that the evidence of P.Ws.1 and 2 is further corroborated by Ex.P2-spot mahazar and Ex.P3-sketch and other official witnesses. He further contends that the trial Court has erroneously relied upon Ex.D2, which was not part of the charge-sheet. There is no contradiction in the evidence of the prosecution witnesses and therefore, the trial Court was not proper in coming to the conclusion that the evidence of the witnesses to the spot mahazar and the evidence adduced by the prosecution cannot be believed. There is no contradiction in the evidence of the prosecution witnesses and therefore, the trial Court was not proper in coming to the conclusion that the evidence of the witnesses to the spot mahazar and the evidence adduced by the prosecution cannot be believed. Hence, he submits that the reasons assigned by the trial Court for acquitting the accused is not in accordance with law and accordingly, seeks to allow the appeal. Per contra, learned counsel appearing for the respondent would contend that P.Ws.1 and 2 are not eyewitnesses. They have implicated the accused falsely stating that he drove the vehicle in a rash and negligent manner and came to the wrong side of the road and caused the accident. He submits that the accident has not occurred in the manner put-forth by the prosecution. Ex.D2-photograph of Maruti Omni clearly shows that the vehicle is on the proper side of the road, which is admitted by the Investigating Officer. He further submits that even though in the sketch it is shown that the spot is on the right side of the road towards Bellare, there is nothing on record to show as to who marked the said spot. He submits that in view of the admission given by the prosecution witnesses including the Investigating Officer, the trial Court has rightly acquitted the accused and therefore, seeks to dismiss the appeal. 5. In order to bring home gilt of the accused, the prosecution has got examined P.Ws.1 to 9 and got marked Exs.P1 to 18. The defence got marked Exs.D1 and 2. 6. P.W.1 is the first informant and he is an eyewitness. P.W.2 is another eyewitness, examined by the prosecution. P.W.3 is the father of the deceased. P.W.4 is the owner of Maruti Omni car, which was involved in the accident. P.W.5 is a panch witness to mahazar-Ex.P15, under which photographs-Exs.P4 to 9 are marked. P.W.6 is the panch witness to the spot mahazar-Ex.P2 and to spot sketch-Ex.P3. P.W.7 is another panch witness to the mahazar-Ex.P15. P.W.8 is the head constable, who received the complaint from P.W.1 and registered the case. He has also prepared the spot mahazar and the sketch which are marked as Exs.P2 and 3 respectively. He has conducted the inquest mahazar as per Ex.P10. P.W.9 is the Investigating Officer, who took over investigation from P.W.8 and filed the charge-sheet. 7. P.W.8 is the head constable, who received the complaint from P.W.1 and registered the case. He has also prepared the spot mahazar and the sketch which are marked as Exs.P2 and 3 respectively. He has conducted the inquest mahazar as per Ex.P10. P.W.9 is the Investigating Officer, who took over investigation from P.W.8 and filed the charge-sheet. 7. Among the prosecution witnesses, P.Ws.5 and 7, who are attesters to Ex.P15 have not supported the case of prosecution and they have been treated hostile. Their evidence is not helpful to the prosecution. 8. The identity of the accused and he being the driver of the Maruti Omni vehicle is not seriously disputed. The prosecution mainly relies on the evidence of P.Ws.1 and 2, stated to be the eyewitnesses. According to P.W.1, on 29.04.2014 at about 5.00 to 5.30 p.m., he was riding a motorcycle and at that time, the Maruti Omni car driven by the accused overtook his motorcycle and went to the extreme right side of the road and hit against the motorcycle which was coming from the opposite direction. On account of the same, the rider of the said motorcycle was thrown on the road. He immediately went near the spot. Accused also came to the spot. Thereafter, the injured was shifted to the hospital. 9. According to P.W.2, at the time of accident, he was also riding a motorcycle. At that time, deceased was riding his motorcycle from Bellare side and going towards Ninthikallu. The Maruti Omni driven by the accused came to the extreme right side of the road and hit against the motorcycle, on account of which the rider of the motorcycle fell on the road and sustained grievous injuries. 10. P.W.1 has admitted in the cross-examination that there is a turn near the spot of accident. He was behind the Maruti Omni van at a distance of about 15 to 20 mtrs. and he was riding his motorcycle behind the said van. He has admitted that the accident has occurred in a fraction of second and because the van was in front of him, he could not see the motorcycle. In his cross-examination, P.W.1 has clearly admitted that he was going behind the Maruti Omni van and because the said van was in front of him, he could not see the bike which was coming from the opposite direction. In his cross-examination, P.W.1 has clearly admitted that he was going behind the Maruti Omni van and because the said van was in front of him, he could not see the bike which was coming from the opposite direction. If that is so, then it is difficult to believe that the accused drove his vehicle to the extreme right side of the road and caused the accident. Veracity of his evidence requires to be tested from other evidence available on record. He has stated in the cross-examination that on the date of accident itself the Police removed the vehicles from the spot. He has stated that he showed the position of vehicles, at the time of conducting spot mahazar and sketch as per Ex.P2 and 3. 11. Though P.W.2 has been projected as an eyewitness, in the cross-examination he has admitted that after the accident, by the time he and Guruprasad [P.W.1] reached the spot, about 10 persons had already gathered at the spot. Though P.W.2 is an attester to Exs.P2 and 3, he has stated that he is not aware as to what is written in Ex.P2. 12. According to P.W.1, he was riding his motorcycle behind the Maruti Omni van driven by the accused and immediately after the accident he went to the spot and then the accused also came there. However, P.W.2, who is another eyewitness to incident has admitted in the cross-examination that by the time he and Guruprasad [P.W.1] went to the spot, already about 10 persons were at the spot. If the evidence of P.W.2 is accepted, then it cannot be said that P.Ws.1 and 2 are eyewitnesses to the accident in question. 13. P.W.8 is the head constable, who after receiving the complaint went to the spot and prepared the spot mahazar as well as sketch, which are marked as Exs.P2 and 3. The accident has taken place on 29.04.2014 at about 5.00 to 5.30 p.m. Exs.P2 and 3 are prepared on 30.04.2014 between 11.00 a.m. to 12.00 noon. In the sketch marked at Ex.P3, the spot is shown towards right side of the road leading to Bellare from Ninthikallu. However, P.W.8 has admitted in the cross-examination that at the time he went to prepare the mahazar, vehicles were not at the spot. But, he marked the spot as shown by the complainant. He has admitted that there were no tyre marks. However, P.W.8 has admitted in the cross-examination that at the time he went to prepare the mahazar, vehicles were not at the spot. But, he marked the spot as shown by the complainant. He has admitted that there were no tyre marks. He has admitted that he has not enquired with the Police as to who removed the vehicles from the spot of accident. 14. The Investigating Officer, who is examined as P.W.9 has stated in the cross-examination that it is not mentioned in Ex.P2 and Ex.P3 about the position of the vehicle. He has admitted that Ex.D2 is the photograph taken before the vehicle was removed from the spot and in Ex.D2 the vehicle is shown on the extreme left side of the road. The said Ex.D2 is the photograph of the Maruti Omni in question. The said photograph is not disputed by the prosecution. When P.W.9-Investigating Officer has not disputed Ex.D2-photograph, wherein he has admitted that in the said photograph the Maruti Omni is shown parked on the extreme left side of the road, then it is difficult to accept the case of the prosecution that the accused by driving the said vehicle towards extreme right side of the road and caused the accident. From the admission given by P.W.2 that by the time he and Guruprasad [P.W.1] went to the spot, there were already about 10 persons gathered near the spot, it is difficult to accept the case of the prosecution that P.Ws.1 and 2 are the eyewitnesses to the accident in question. Therefore, the prosecution has failed to establish the guilt of the accused beyond reasonable doubt. 15. The trial Court after considering the oral and documentary evidence and after giving reasons has acquitted the accused. The reasons assigned by the trial Court cannot be said to be either perverse or illegal. This being an appeal against the Judgment and Order of acquittal and the trial Court having taken one of the possible view, the impugned Judgment and order of acquittal passed by the trial Court requires no interference. Accordingly, the following: ORDER Appeal is dismissed.