Allowed

The State of Karnataka v. Mahantesh S/O Chandrashekhar Badiger

Karnataka HC4 Oct 2023CRL.A/100009/2016

Case brief

AI extract

What is this about?

In this criminal appeal against acquittal for rash and negligent driving causing death, the Single Judge set aside the trial court's order, held the accused guilty, and sentenced him under sections 279, 338, and 304-A of the IPC based on eye-witness evidence of overtaking on the wrong side of the road.

What did the court decide?

Acquittal set aside; accused convicted under sections 279, 338, 304-A IPC and sentenced to concurrent imprisonment totaling one year and nine months plus fines.

The State of Karnataka Vs Mahantesh S/O… — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC-D:12015 CRL.A No. 100009 of 2016

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 04^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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CRIMINAL APPEAL NO.100009/2016 (A)

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BETWEEN:

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

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…APPELLANT

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(BY SRI PRAVEENA Y. DEVAREDDIYAVARA, HCGP)

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AND:

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MAHANTESH S/O. CHANDRASHEKHAR BADIGER, AGE:29 YEARS, R/O:ASHRAYA COLONY, SATTUR, NEAR S.D.M. DENTAL COLLEGE, DHARWAD.

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Digitally signed by SUJATA SUBHASH PAMMAR

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…RESPONDENT (BY SRI VISHWA HEGDE, FOR SRI M.H.PATIL, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) & (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 03.09.2015, PASSED BY THE JMFC COURT, ANKOLA, IN CRIMINAL CASE NO.431/2011 AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 03.09.2015, PASSED BY THE JMFC COURT, ANKOLA, BY ALLOWING THIS CRIMINAL APPEAL AND TO CONVICT AND SENTENCE THE RESPONDENT / ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 279, 338 & 304-A OF IPC WITH WHICH HE HAS BEEN CHARGED, IN ACCORDANCE WITH LAW, IN THE INTEREST OF JUSTICE EQUITY.

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

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NC: 2023:KHC-D:12015 CRL.A No. 100009 of 2016

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JUDGMENT

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This criminal appeal is filed by the State challenging the judgment of acquittal dated 03.09.2015, delivered by the learned JMFC, Ankola, in Criminal Case No.431/2011.

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Brief facts of the case. It is the case of prosecution that on 06.07.2011 at about 12 p.m. (noon) on NH-63 near Ramanaguli village, the respondent/accused being the driver of mini bus No.KA-25/C-4800 proceeding from Yellapur towards Ankola, drove the same in a rash and negligent manner and with high speed so as to endanger human life and while trying to overtake a Cargo vehicle, drove the bus on the right side of the road and dashed to the car No.KA-25/N-3756, which was coming from opposite side. Due to the said accident the driver of the car by name Shrikanth Shirol and inmate of the car Ashok Bidnal have sustained grievous injuries and succumbed to the injuries on the spot and the other inmates of the car have sustained grievous injuries in the said accident and

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thereby committed offence punishable under section 279, 338 and 304-A of Indian Penal Code (IPC). The learned Magistrate after following all the trial procedures after filing of charge sheet by furnishing a copy of the charge sheet to the accused, heard before charge, recording evidence of the prosecution witnesses and examining the accused under section 313 of Cr.P.C. and after hearing arguments has acquitted the accused for the charges levelled against him.

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The charges leveled against the accused are for the offence punishable under section 279, 338, 304-A of IPC. The accused has not led any evidence. Therefore, it is totally denial of the case by the accused.

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The learned Magistrate has acquitted the

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accused on the reason that PW.4 and PW.5 have not seen the accident and the driver of the car has lost control over the vehicle and came to the right side of the road due to curving, at that time the accident was caused. Further observed that there is contributory negligence on the part

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of the driver of car and while negotiating the curve, the accident was caused. Hence it is held that the accused is not rash and negligent and thus acquitted. The trial Court assigned reason that in order to convict the accused the requirement is high degree of negligence on the part of accused but it is not found in the case. Hence, acquitted the accused. By assigning these reasons the learned Magistrate has acquitted the accused.

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Being aggrieved by the acquittal of accused, the

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State has preferred the present appeal.

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Heard the arguments and perused the records.

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The learned HCGP submitted that PW.2 is complainant and eye witness who has categorically deposed that accused was driving the bus in a rash and negligent manner and coming to the wrong side of the road, hit the car. Therefore there is no material to discard the evidence of PW.2 eye witness. Further submitted that PW.4 and PW.5 being inmates of the car have stated that

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the accused hit the car and evidence of these witnesses ought not to have been discarded. But the learned Magistrate had wrongly discarded the evidence and passed the order of acquittal. Further more, the evidence of PW.7 who is the owner of mini bus has stated that as on the date, time and place of accident the accused was engaged as driver in the bus being employed under the employment of PW.7. Therefore, submitted that all the evidence conclusively proved the guilt of accused but the learned Magistrate upon trivial reasons has acquitted the accused.

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It is further submitted that, from other evidence it is proved that the accused is guilty of the offence charged against him. Therefore submitted, prosecution is able to prove the guilt of accused beyond all reasonable doubt. Hence prays to reverse the judgment of acquittal by allowing the appeal.

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On the other hand, learned counsel for respondent/accused submitted that the driver of the car

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was also rash and negligent and the driver of the car was guilty of driving the car in a rash and negligent manner and it is rightly assessed by the learned Magistrate. Therefore, justified the judgment of the trial Court. Further submitted that, in order to hold the accused is guilty of the offence alleged, the prosecution has to prove high degree of rashness and negligence, but it is not found from the present case and this is rightly appreciated by the trial Court and thus justified the acquittal of the accused. Therefore submitted that benefit of doubt given to the accused by the trial Court is correct and the reasons of the learned Magistrate are well founded and when there is a chance of 50:50, upon appreciating the evidence on record the benefit of doubt may be given to the accused, that is what has been done by the trial Court. Therefore prays not to interfere with the judgment of acquittal of trial Court.

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Upon hearing the rival submissions of the learned counsels appearing for both sides, the point that arises for my consideration is as follows:

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NC: 2023:KHC-D:12015 CRL.A No. 100009 of 2016

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Whether the prosecution proves beyond reasonable doubt that on 06.07.2011 at 12.00 on National Highway No.63 near Ramanaguli village, the accused being the driver of mini bus No.KA-25/C-4800, while proceeding from Yellapur to Ankola, drove it in a rash and negligent manner and dashed against car No.KA-25/N-3756 and the driver and inmate of the car died in the said accident, thus committed offence punishable under section 279, 338 of IPC and further caused the accident

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resulting in death of two persons, thus offence punishable under section 304-A of IPC?

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In order to prove the guilt against the accused, the prosecution has examined nine witnesses as PW.1 to PW.9 and got marked the documents Ex.P.1 to P.14 and 14(a) and material objects M.Os.1 and 2. The accused has not led any evidence. Therefore, it is total denial of the case by the accused.

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PW.1 is the spot mahazar pancha witness; PW.2 is the complainant and eye witness; PW.3 is the inquest pancha witness; PWs.4 and 5 are inmates of the car; PWs.8, 6 and 9 are the IOs who have carried investigation, according to the sequence respectively and among them PW.9 filed the charge sheet after completion of investigation. PW.7 is the owner of mini bus.

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PW.2 is the eye witness to the incident. PW.2 was traveling in tempo traveller mini bus to Dharmasthal. At that time accused was driving the tempo traveller mini bus. It is further deposed that the tempo traveller left Hubballi in the morning at 07-00 to 7.30 a.m. and when reached a place called Ramanaguli, the accused in order to overtake the Cargo truck, has taken tempo traveller on the right side of the road and at that moment Indica car was coming from opposite side and the accused dashed the tempo traveller against the Indica car, due to which the inmates of the car have sustained grievous injuries and immediately arrangement was made for sending the

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injured to the hospital in 108 ambulance. He has further deposed that the complainant has lodged complaint before the police as per Ex.P.2 and identified the mini bus. He further deposed that the accused was driving the mini bus at that time.

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Upon considering the cross-examination of PW.2, nothing worth is revealed so as to disbelieve the evidence of PW.2. It is suggested that TATA Indica car was also coming on high speed and therefore there might have been great damage to the car. Just because the car was coming with high speed is not a ground to say that the accused was not rash and negligent. From the evidence on record it is revealed that the TATA Indica Car was going on its correct side. The accused was behind the Cargo truck and in order to overtake the truck has taken the tempo traveller on his right side and hit the Indica car. Therefore the driver of tempo traveller has showed utter negligence while overtaking the Cargo truck and caused the accident. Therefore upon considering the evidence of PW.2, it is

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NC: 2023:KHC-D:12015 CRL.A No. 100009 of 2016

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proved that the accused was driving the tempo traveller mini bus and caused the accident.

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PW.4 and PW.5 are inmates of the car. These PW.4 and PW.5 have stated that they were going from Kundapur to Hubballi and at about 12.00 noon their car reached Ramanaguli, a tempo traveller had dashed the car, due to which the driver of the car and a person sitting in the front seat died in the accident and these PWs.4 and 5 have sustained injuries. PW.4 and PW.5 have stated that they came to know that the accused was driving the tempo traveller.

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When the accident is visualized on the evidence on record, these PW.4 and PW.5 were traveling in the car sitting on the rear seat and when the accident was taken place, there was a trauma situation and it is not possible to see who was driving the tempo traveller. Therefore just because PW.4 and PW.5 have stated that they came to know that accused was driving the tempo traveller is not a ground to say that accused was not driving the tempo

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traveller. Upon perusing the cross-examination of PW.4 and PW.5, nothing is revealed to state that accused was not driving the tempo traveller. Therefore, there is no exaggeration or embellishment found from the evidence of PW.4 and PW.5.

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PW.7 is the owner of the tempo traveller who has stated that he is running a transport business and has stated that he came to know about the accident between the tempo traveller mini bus and Indica car and accordingly went to Ankola police station and identified receipt of notice issued under section 133 of the M.V.Act. Further stated that on the date and time of accident the accused was driving the tempo traveller. Further admitted that he has given a reply to the police notice that the accused was driving the tempo traveller. Considering the cross-examination it is proved that PW.7 is not an eye witness to the accident. But PW.7 being the owner of tempo traveller has engaged the accused as driver of the said vehicle and instructed the accused to take the

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NC: 2023:KHC-D:12015 CRL.A No. 100009 of 2016

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passengers to Dharmasthal. Therefore, on the evidence of PW.7 it is also proved that the accused was driving the tempo traveller and caused the accident. PW.1 is the spot and seizure pancha and PW.3 is the inquest pancha. They have deposed regarding sequence of investigation of drawing spot panchanama, seizure panchanama and inquest panchanama respectively.

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PW.8, PW.6 and PW.9 are the Investigating Officers. PW.8 has conducted the first part of investigation and PW.6 has conducted the second part of investigation and PW.9 has conducted final investigation and filed the charge sheet. The evidence of these witnesses is regarding narrating the sequence of process of investigation from receiving the first information statement to filing of the charge sheet. Upon considering the evidence of investigating officers, it is proved that the accused has committed an offence of rash and negligent driving endangering human beings and animals and caused accident by his rash and negligent driving and caused

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death of two persons. Therefore, the evidence of these witnesses PW.8, PW.6 and PW.9 corroborates the evidence of PW.2, PW.4 and PW.5.

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Hence upon considering the entire evidence on record, the prosecution is able to prove the guilt of the accused that he has committed the offence of causing death of two persons by rash and negligent driving of the tempo traveller attracting the provisions under section 279, 338 and 304-A of IPC.

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The trial Court has committed an error in acquitting the accused on trivial and flimsy reasons. It is observed by the trial Court that the deceased while driving the Indica Car was also rash and negligent. But the other side of the evidence is that the deceased while driving the Indica car was on its correct side. But the accused while driving the tempo trveller behind the Cargo truck, attempted to overtake Cargo truck by going on the wrong side of the road and dashed the Indica car coming from opposite direction. Therefore, to which side of the road the

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accused drove the vehicle has been lost sight by the trial

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Court in appreciating the evidence on record.

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Further, the trial Court observed that PW.4 and PW.5 have not stated about the speed of the tempo traveller. It is not possible for PW.4 and PW.5 who were inmates of the car to say at which speed the driver was driving the tempo traveller. Therefore the trial Court has assigned flimsy reasons without properly appreciating the evidence on record. Further, the trial Court assigned another reason that the inmates of tempo traveller have not been made as charge sheet witnesses. The trial Court further observed that wound certificates of inmates of tempo traveller are not produced. Therefore, the trial Court found fault in this regard is completely absurd and not tenable. Therefore the learned Magistrate while appreciating the evidence on record has not appreciated in correct and true perspective manner. Therefore, acquittal of accused by the learned Magistrate is found for trivial and flimsy reason, which ought not to have been made by

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the learned Magistrate resulting into erroneous judgment of acquittal. Therefore, for the aforesaid reasons the judgment of acquittal is set aside.

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For the reasons discussed above, the

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prosecution is able to prove the guilt of the accused beyond all reasonable doubt that the accused has committed death of two persons by driving the tempo traveller in a rash and negligent manner. Therefore the accused is liable to be convicted for the offence punishable under section 279, 338, 304-A of IPC. Hence I proceed to pass the following:

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ORDER

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i) The appeal filed by the State is

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allowed.

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ii) The judgment of acquittal dated 03.09.2015, passed by the JMFC, Ankola, in Criminal Case No.431/2011 is hereby set aside.

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iii) The respondent/accused is held guilty of the offence punishable under sections 279, 338, 304-A of IPC and accordingly the accused is convicted for the offence punishable under section 279, 338 304-A of IPC.

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iv) For the offence punishable under section 279 of IPC, the accused is sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs.1,000/-.

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v) For the offence punishable under section 338 of IPC, the accused is sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.2,000/-.

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vi) Further, for the offence punishable under section 304-A of IPC, the accused is sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.5,000/-.

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vii) All these substantive sentences shall run concurrently.

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viii) In default to pay the fine amount, the

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accused shall undergo simple imprisonment for a further period of one month for each of the offences.

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ix) The accused is entitled for the benefit

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of section 428 of Cr.P.C., in case if he has suffered imprisonment during the course of investigation.

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x) Send back the trial Court records

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along with a copy of this judgment. The learned Magistrate is directed to secure the presence of accused for the purpose of making the accused undergoing sentence as stated above and report compliance to this Court.

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SD/JUDGE

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MRK/List No.: 3 Sl No.: 1 CT-ASC

The State of Karnataka v. Mahantesh S/O Chandrashekhar Badiger

Case brief

What is this about?

What did the court decide?

The State of Karnataka v. Mahantesh S/O Chandrashekhar Badiger

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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