Dismissed

The State of Karnataka v. Mohammad Rafiq S/O Moulasab Nadaf

Karnataka HC20 Jun 2019CRL.A/100058/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed the State's criminal appeal challenging an acquittal. The court held that the prosecution failed to identify the accused as the driver of the offending vehicle and that no evidence substantiated the rash driving charge, confirming the lower court's decision.

What did the court decide?

The criminal appeal was dismissed as devoid of merits; the judgment and order of acquittal were confirmed.

The State of Karnataka Vs Mohammad Rafiq S/O… — Criminal Trial and Appeal | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 20^TH DAY OF JUNE 2019

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BEFORE

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THE HON’BLE MR.JUSTICE B.A.PATIL

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CRIMINAL APPEAL NO.100058/2019

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BETWEEN:

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THE STATE OF KARNATAKA BY CPI OF HIREKERUR CIRCLE THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT OF KARNATAKA, DHARWAD BENCH.

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... APPELLANT

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(BY SRI. PRAVEEN K. UPPAR, HCGP)

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AND:

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MOHAMMAD RAFIQ S/O MOULASAB NADAF AGED ABOUT: 28 YEARS, OCC: DRIVER, R/O: HIREKERUR, TQ: HIREKERUR, DIST: HAVERI.

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... RESPONDENT

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(BY SRI. M H PATIL, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED U/S 378(1) & (3) OF CR.P.C. SEEKING TO A) TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 28.11.2018 PASSED BY THE II-ADDL. DIST. & SESSIONS JUDGE, HAVERI, SITTING AT RANEBENNUR IN CRL.A.NO.65/2015; B) TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 28.11.2018 PASSED BY THE IIADDL. DIST. & SESSIONS JUDGE, HAVERI, SITTING AT RANEBENNUR IN CRL.A.NO.65/2015, U/S 279, 338 & 304-A OF IPC AND C) TO CONFIRM THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE PASSED BY THE CIVIL JUDGE & JMFC COURT, HIREKERUR IN C.C.NO.183/2011 DATED 16.07.2015.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGEMENT

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The present appeal has been preferred by the

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State being aggrieved by the judgment and order of acquittal passed by the II Addl. District and Sessions Judge, Haveri, sitting at Ranebennur, in Criminal Appeal No.65/2015 dated 28.11.2018, wherein the judgment of conviction and sentence passed by the learned Principal Senior Civil Judge and JMFC, Hirekerur in C.C.NO.183/2011 dated 16.07.2015 was set aside and the accused/appellant was acquitted for the alleged offences.

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I have heard the learned HCGP appearing for the appellant and the learned counsel for the respondent/accused.

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The brief facts of the case as per the case of

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the prosecution are that, on 10.11.2008 at about 5.30 pm, when the deceased along with his wife was

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proceeding on his motorcycle bearing registration No.KA-15/K-1568, the accused/respondent being the driver of the auto rickshaw bearing registration No.KA17/9475 drove the same rashly and negligently and dashed to the motorcycle on which the deceased was proceeding. As a result of the same, he fell down and sustained grievous injuries and subsequently he succumbed to the injuries. The wife of the deceased also sustained grievous injuries. On the basis of the complaint a case has been registered and after investigation, charge sheet has been led as against the accused.

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Thereafter the Court below secured the

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presence of the accused and after complying the mandatory provisions of Section 207 of Cr.P.C. recording the plea of the accused. Accused pleaded not guilty. He claims to be tried and as such, the trial was fixed. In order to prove the case of the prosecution, the prosecution got examined 6 witnesses and got marked 6

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documents. Thereafter the statement of the accused was recorded. Accused has not led any evidence and no documents have been got marked. After hearing the learned Assistant Public Prosecutor and the learned counsel for the accused, the trial Court convicted the accused for the offence punishable under Section 279, 338 and 304A of the IPC.

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Being aggrieved by the same, the

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accused/respondent filed criminal appeal No.65/2015 before the learned District and Sessions Judge, Haveri sitting at Ranebennur. The said Court allowed the appeal and acquitted the accused. Challenging the same, the State is before this Court.

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In order to prove its case, the prosecution

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got examined 6 witnesses. PW1 is the panch witness to the spot mahazer. He has not supported the case of the prosecution. He has been treated as hostile. Even during the course of cross-examination by the learned

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Assistant Public Prosecutor, nothing has been elicited

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so as to substantiate the evidence of the prosecution.

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PW2 is the eyewitness to the alleged

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incident. He is the relative of the deceased. In his evidence, he has deposed that on 10.11.2008 at about 4.30 to 5.00 pm, deceased and his wife were proceeding on a two wheeler vehicle and at that time one auto rickshaw came in a high speed from the backside of the motorcycle and dashed against the motorcycle, as a result of the same they fell down and sustained grievous injuries and subsequently the rider of the motorcycle died. During his evidence he has deposed that he saw the accident from a distance of about 50 ft when he was proceeding in his two wheeler Hero Honda vehicle. In his evidence he has further deposed that the accident has occurred near Hosahalli cross. But as per Ex.P2 the alleged accident has occurred after Hosahalli cross. On a close reading of the evidence of PW2, nowhere he has deposed that it is the accused/respondent who was

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driving the offending auto rickshaw at the alleged time of accident. He never identified the accused before the Court below while recording the evidence. He has not whispered anything about the rash and negligent driving of the driver of the said auto rickshaw. In that light, the trial Court after considering his evidence has come to the conclusion that the evidence of PW2 is not acceptable and it is doubtful.

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PW3 is the wife of the deceased who was travelling on the motorcycle. In her evidence she has deposed that, immediately after the accident she became unconscious and she did not know anything about the alleged accident. Even in her evidence also she has not identified the accused as the driver of the said auto rickshaw and she has also not whispered anything with regard to the rash and negligent act of the driver. Under these circumstances, the trial Court has not accepted the evidence of the said witnesses.

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PW4 is the inmate of the auto rickshaw and

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he is the complainant in this case. Though he has deposed regarding the manner in which the accident has taken place, but in the cross-examination he has deposed that, in the said auto rickshaw 4 to 5 persons were proceeding and not mentioned about the name and other details about the said persons. Even in the complaint he has not deposed about who are all in the said Auto rickshaw and not stated any registration number of the auto rickshaw and even the complaint itself does not disclose the fact that he was travelling in

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the said auto rickshaw. It has come only in the evidence that itself is the improvement in this behalf. Though the said improvement has not been contradicted to the witnesses or the investigating officer, but in the instant case on hand, the Investigating Officer has not been examined. Under these

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circumstances, the said evidence of PW4 is also not

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worth believable and the Court below has also rightly come to the said conclusion.

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PW5 is the brother of the deceased who has come to the place of accident only after he came to know that his brother has met with an accident and PW6 is the mahazer witness and he has not supported the case of the prosecution.

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All these material which has been produced by the prosecution clearly goes to show that the prosecution has utterly failed to prove the guilt of the accused and the first Appellate Court after considering the evidence and proper discussion has come to a right conclusion and there are no good grounds to interfere with the order of the first Appellate Court. The same deserves to be confirmed and accordingly it is confirmed. Appeal is dismissed as devoid of merits.

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gab

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Sd/JUDGE

The State of Karnataka v. Mohammad Rafiq S/O Moulasab Nadaf

Case brief

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The State of Karnataka v. Mohammad Rafiq S/O Moulasab Nadaf

Case brief

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What did the court decide?

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