Dismissed

State of Karnataka v. Kalakappa S/O Basavaraj Sajjan

Karnataka HC10 Dec 2020CRL.A/100265/2015

Case brief

AI extract

What is this about?

The High Court, Dharwad Bench dismissed the State's criminal appeal against the trial court's acquittal in a rash and negligent driving case. The court held that the prosecution failed to establish rash and negligence as allegations of high speed were unsupported by specific overt acts or exact location details, creating reasonable doubt. Alleged hostility of some witnesses did not outweigh the la

What did the court decide?

The criminal appeal filed by the State was dismissed, upholding the acquittal of the respondent.

State of Karnataka Vs Kalakappa S/O Basavaraj Sajjan — Cheque Dishonour | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA

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DHARWAD BENCH

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DATED THIS THE 10^TH DAY OF DECEMBER 2020

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BEFORE

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THE HON’BLE MR.JUSTICE RAVI V.HOSMANI

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CRIMINAL APPEAL No.100265 OF 2015

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BETWEEN

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STATE OF KARNATAKA RPTD. BY THE CIRCLE POLICE INSPECTOR ANKOLA, THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD

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...APPELLANT

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(BY SRI.V.M.BANAKAR, ADDL SPP)

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AND

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KALAKAPPA, S/O BASAVARAJ SAJJAN AGED ABOUT 27 YEARS, R/O MUDHOL, YELABURGA, KOPPAL.

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…RESPONDENT

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(BY SRI.G.S.MOT, ADV.)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF CR.P.C. PRAYING TO GRANT LEAVE TO APPEAL AGAISNT THE JUDGMENT AND ORDER OF ACQUITTAL DATED 14.09.2015 PASSED IN CC NO.218/2011 BY THE JMFC, ANKOLA AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 14.09.2015 PASSED IN CC NO.218/2011BY THE JMFC., ANKOLA AND TO CONVICT THE RESPONDENTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 279, 337, 338, 304(A) OF IPC.

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JUDGMENT

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Challenging the judgment dated 14.09.2015 passed by the JMFC., Ankola in

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CC No.218/2011 acquitting the accused of the offence punishable under Section 279, 337, 338 and 304A of Indian Penal Code(hereinafter for short ”IPC”) this appeal is filed by the State.

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Brief facts giving rise to this appeal

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are as under:

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A statement came to be recorded given by Shabhulinga Siddaramappa on 19.01.2011 between 13.15 and 13.45 hours at Ankola Government Hospital stating that on 18.01.2011 they had proceeded from Kamalapura to go to Gokarna for a school

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trip by hiring one mini bus and two cruiser vehicles. That they had left Hubballi at 7.45 a.m. on 18.01.2011. When they were going towards Ankola via Yallapura on 19.01.2011 at about 11.45 am, near Heggar village a lorry bearing registration No.KA-26/9046 driven by it’s driver in high speed and rash and negligent manner came from opposite direction and dashed against Cruiser. In the accident, Ambharaiah Chandrakanth Kumbar, driver of the Cruiser vehicle and one of students in vehicle died on the spot, while several others sustained injuries. Immediately, thereafter, injured were taken to Ankola Government Hospital in 108 ambulance. Based on above statement, FIR came to be registered in Crime No.12/2011 by Ankola Police Station, at 2 p.m. for

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offences punishable under Sections 279, 337, 338 and 304A of IPC. After investigation, charge sheet was filed against accused for said offence.

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On appearance, accused denied the

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charges and sought for trial. In support of it’s case, prosecution examined 12 witnesses as PW.1 to PW.12. Ex.P1 to P.33 were marked. Thereafter, the incriminating material was explained to accused which was denied by him and no explanation was offered by accused, he did not lead any defence evidence.

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Based on above material, trial Court

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framed following points for it’s consideration:

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Whether prosecution proves beyond all reasonable doubts that on 19.01.2011 at about 11.45 a.m. on National High Way 63 at

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Heggar village of Ankola taluk, accused being the driver of the lorry bearing registration NO.KA26/9046 proceeding from Ankola towards Yellapur, drove it in a rash or negligent manner so as to endanger human life and dashed it to the Toofar Crusher Vehicle No.KA-17/M-8986 and thereby committed an offence punishable under Section 279 of IPC?

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Whether the prosecution proves beyond all reasonable doubts that on the above said date, time and place mentioned herein above, accused by his negligent driving caused simple injuries to complainant, CW.17, 18, 19 and 20 and thereby committed offence punishable under Section 337 of IPC?

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Whether the prosecution proves beyond all reasonable doubts that on the above said date, time and place mentioned herein above, accused by his negligent driving caused grievous injuries to CW.11,12,13,14,15 and 16 and thereby committed offence punishable under Section 338 of IPC?

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Whether the prosecution proves beyond all reasonable doubts that on the above said date, time and place, as a result of rash or negligent manner of driving described above caused the death of the driver of the Toofan Crusher vehicle Ambaraya, S/o Chandrakantha Kumbar and

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inmates of the vehicle Shivashanta Kalyani Kattimani, Shambulinga Gurushantappa Biradar, Ambaraya Bhimahankar and Inrajith Shivaram Bhavimani, which not amount to culpable homicide and thereby committed offence punishable under Section 304-A of IPC?

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What order?

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After answering point Nos.1 to 4 in negative, trial Court proceeded to acquit accused of all offences. Challenging

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acquittal, State is in appeal.

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Learned Addl. State Public

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Prosecutor Sri.V.M.Banakar appearing for appellant submitted that prosecution examined several eye witnesses, Assistant Executive Engineer who draw spot sketch, recorded statements of the pancha witnesses for spot mahazar and Seizure panchanama and also produced all relevant documents to

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constitute offence under provisions of Penal

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Code. The reasons assigned by trial court based are that witnesses merely deposed about lorry being driven in high speed. But, speed alone does not establish rash and negligence. Trial Court also held that evidence of PW5 and 6 suffers from contradictions. It was submitted that though complainant-PW1, PW2 and 8 pancha witnesses for spot mahazar-Ex.P3; P.4 injured-eye-witnesses turned hostile and PW.9 independent eye witness turned hostile, the prosecution case was duly supported by PW.5 and 6 who were also injured eye witnesses. Learned Addl. State Public Prosecutor submitted that prosecution based it’s case on evidence of PW.5 and 6 who are the material witnesses supported by spot

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sketch-Ex.P28 and Ex.P3 which is spot mahazar and seizure panchanama, which clearly established the offences against the accused.

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On the other hand, Sri.Gourishankar S. Mot submitted that

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prosecution miserably failed to establish any of the ingredients of offences alleged against

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accused. There was no proper identification of accused, no specific overt acts constituting rash and negligent driving by accused were established and there were several grave and material inconsistencies between evidence of two eye witnesses PW.5 and 6 which raised doubt about prosecution case. Hence, acquittal of accused by trial Court was fully justified and there was no merit in the appeal.

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I have heard learned counsel for

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parties and perused impugned judgment and record.

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From the complaint at Ex.P1, it is seen that accident occurred on HubballiAnkola road on 19.01.2011 at 11.40 a.m. when the Cruiser vehicle in which deceased were traveling from Hubballi towards Ankola and lorry was coming from Ankola towards Hubballi. That lorry came from opposite side and dashed against front side of Cruiser. From Ex.P.3-spot panchanama, it is seen that the road at accident spot is 24 feet with 4 feet kacha road on either side. However, there is no mention about exact location of accident spot on the road, either in EX.P3spot panchanama or spot sketch-Ex.P.28.

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PW.1/complainant turned hostile. Despite cross examination by Addl. Public Prosecutor, no useful elicitations were obtained and therefore, evidence of PW.1complainant does not help the prosecution case. Likewise, PW.2 who is a witness to spot mahazar-Ex.P.3 also not supported prosecution case. PW.3 one of the injured eye witness though stated about the accident, stated that he has lost his consciousness after accident and stated that he does not know who was driving the lorry. During cross examination by Addl. Public Prosecutor, there is suggestion that driver of the lorry was driving it in rash and negligent manner to which witness answered as ‘may be’. But, during cross examination, PW.3 the witness admits that he does not know

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contents of his statement recorded by Police and that he was tired and asleep at the time of accident and unconscious after accident and therefore cannot identify driver of lorry. Therefore, evidence of PW.3 also is not helpful to prosecution case.

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PW.4 is another eye witness who deposed in the same manner as PW.3 and not supported prosecution case. PW.5-Santhosh Kumar who is one of the students and passenger of Cruiser vehicle who suffered injuries in accident; state that on 19.01.2011 they were going on a school trip in Cruiser vehicle to Gokarna on Hubbali-Ankola road at about 11 p.m. when the vehicle was near Heggar village, accused driving his lorry in high speed came and dashed against Cruiser. PW.5 stated that he had seen the

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lorry driver on date of accident and identified accused as the driver who caused accident. Though, he is cross examined, cross examination is concentrated towards eliciting admissions regarding negligence of Cruiser vehicle driver in causing the accident. PW.6 is Shiva kiran Chandrakanth is another injured eye witness. He has also stated in his evidence regarding manner of accident and that accused was driving his lorry in excess speed and dashed Cruiser Vehicle. PW.6 also stated that he had seen lorry driver at time of accident. During cross examination, it is elicited from PW.6 that he was sitting in the seat behind the driver and was not able to see the road ahead of him clearly. It is further elicited from said witnesses that accident occurred on left side

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of Hubballi-Ankola road. To a specific question about the distance of accident spot from kacha road, witness has stated that the accident spot included kacha road.

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It is relevant to refer to spot sketch Ex.P.28 wherein accident spot is shown towards left side of road in direction in which lorry was proceeding. Therefore, Cruiser vehicle is likely to have crossed over to it’s wrong side at the time of accident. There is no further elucidation about this fact. This gives raise to material doubt about prosecution case. In its judgment in K.Gopal Reddy V/s State of Andhra Pradesh reported in (1979) 1 SCC 355, the Hon’ble Supreme Court has clarified the meaning of reasonable doubt. It is stated therein that if two reasonably probable and evenly balanced views of the evidence are possible,

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one must necessarily concede the existence of a reasonable doubt.

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In this case, since there is no elucidation

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of the exact location of accident spot by prosecution

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and as none of witnesses specifically stated about overt-acts on Lorry driver other than driving Lorry in high speed, negligence cannot be imputed to accused. Section 279 imposes a further requirement that rash and negligent driving should be of such nature as to endanger human life. The prosecution has miserably failed to establish rash and negligence on the part of accused. Though one of reasons assigned by trial Court is that driver of Cruiser vehicle also contributed to accident, it would not be fully supported by any evidence as even an abated charge sheet is not filed against driver of Cruiser. However, the same does not overturn the ultimate result arrived at by trial Court.

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For the foregoing reasons, there is no merit in

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the appeal. Accordingly, it is dismissed.

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Sd/JUDGE

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HMB/CLK

State of Karnataka v. Kalakappa S/O Basavaraj Sajjan

Case brief

What is this about?

What did the court decide?

State of Karnataka v. Kalakappa S/O Basavaraj Sajjan

Case brief

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