Dismissed

State of Karnataka v. Nisar S/O Kasim Saab Patel

Karnataka HC2 Jun 2023CRL.A/100031/2016

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed the State's criminal appeal against an acquittal in a vehicular accident case. Upholding the trial court's view that culpable rashness and negligence were not proved beyond reasonable doubt, the court affirmed the judgment of acquittal.

What did the court decide?

None; the criminal appeal was dismissed and the acquittal of the respondent was confirmed.

State of Karnataka Vs Nisar S/O Kasim Saab Patel — Writ and Judicial Review | Karnataka HC (2023)

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1 - CRL.A No. 100031 of 2016

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 2^ND DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ANIL B KATTI

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CRIMINAL APPEAL NO. 100031 OF 2016

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BETWEEN:

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STATE OF KARNATAKA REPRESENTED BY THE POLICE SUB-INSPECTOR, KARWAR TRAFFIC POLICE STATION, UTTARA KANNADA DISTRICT, THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH. …APPELLANT

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Digitally signed by J MAMATHA J MAMATHA Date: 2023.05.28 20:00:35 - 0700

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(BY SHRI M.H.PATIL, AGA)

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AND:

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NISAR, S/O KASIM SAAB PATEL, AGED ABOUT 38 YEARS, OCC: LORRY DRIVER, R/O: JAYANTI NAGAR, KIRVATTI, TALUK: YALLAPUR, DISTRICT KARWAR. …RESPONDENT

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(BY SHRI GIRISH V. BHAT, ADVOCATE)

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THE CRIMINAL APPEAL IS FILED U/S 378(1)& (3) OF CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 13.10.2015 PASSED IN C.C.NO. 548/2013 BY THE JUDICIAL MAGISTRATE, KARWAR AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 13.10.2015 PASSED IN C.C.NO. 548/2013 BY THE JUDICIAL MAGISTRATE, KARWAR AND TO CONVICT THE RESPONDENT /

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CRL.A No. 100031 of 2016

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ACCUSED FOR THE OFFENCE PUNISHABLE U/SEC. 279, 337, AND 304-A OF IPC.

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THIS CRIMINAL APPEAL COMING ON FOR FURTHER HEARING AND THE SAME HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 28.03.2023, THIS DAY, THE COURT, DELIVERED THE FOLLOWING:

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JUDGMENT

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Appellant/State feeling aggrieved by the judgment of

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acquittal passed by the learned Chief Judicial Magistrate, Karwar, in C.C.No.548/2013 dated 13.10.2015 has preferred this appeal.

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Parties to the appeal are referred with their ranks as assigned in the trial Court for the sake of convenience.

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The factual matrix leading to the case of

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prosecution can be stated in nutshell to the effect that on 29.04.2013 at 10 p.m., accused drove his lorry bearing registration No.KA-31/5705 from Goa towards Karwar with high speed in rash and negligent manner so as to endanger human life. When he reached milestone No.103-104 near Kodibag, Kapri temple cross on NH-17, accused having lost control over the vehicle dashed against the motorcycle bearing registration No.KA-30/J-5445 on it’s right side which was going towards Sadashivgad from Kapri temple cross. On account of the

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actionable negligence of accused in driving lorry bearing registration No.KA-31/5705 accident in question occurred resulting in the death of Vilas Madhukar Anvekar, rider of motorcycle and Subhay Vilas Anvekar, pillion rider, who succumbed to the injuries suffered by them in the accident while they were taken to Bombolin Hospital at Goa. Another inmate of the motorcycle - Pratik sustained grievous injuries. On these allegations made in the complaint, Investigation Officer after completion of investigation filed charge-sheet against the accused for offences punishable under Sections 279, 337 and 304 (A) IPC.

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In response to notice, accused appeared before the trial Court and contested the matter. The trial Court after being prima facie satisfied framed accusation against the accused. Accused pleaded not guilty and claimed to be tried. Prosecution to prove the accusation leveled against accused relied on the evidence of PWs-1 to 14, documents Ex.P.1 to Ex.P.18, so also got identified M.Os.1 and 2.

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On closure of prosecution evidence, statement of accused under Section 313 Cr.P.C. came to be recorded. Accused has denied all the incriminating material evidence

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appearing against him and claimed that false case is filed. Trial Court after appreciating the evidence on record has acquitted accused from the accusation leveled against him.

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Appellant/State feeling aggrieved by the judgment of acquittal passed by trial Court preferred this appeal contending that findings recorded by trial Court are contrary to the evidence on record. There was absolutely no any valid reason to discard the evidence of injured eyewitness, PW-6 and the other eyewitness PW-7 to 10 have specifically spoken about actionable negligence of the accused in driving lorry bearing registration No.KA-31/5705 at the time of accident. The spot features recorded in the spot panchanama Ex.P.1 and the sketch map Ex.P.2 has not been properly appreciated with reference to the evidence of PWs-6 to 9. The approach and appreciation of oral and documentary evidence by trial Court and findings recorded cannot be legally sustained. Therefore, prayed for allowing the appeal and to set aside the judgment of trial Court. Consequently, to convict the accused for the aforesaid offences.

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In response to notice, respondent/accused

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appeared through learned counsel.

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Heard the arguments of both sides.

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On careful perusal of the oral and documentary

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evidence placed on record by the prosecution, it would go to show that the accident occurred on 29.04.2013 at 10 p.m. The lorry bearing registration No.KA-31/5705 was driven by accused from Goa towards Karwar and near Kodibag, Kapri temple cross on N.H.17, accused proceeded on the extreme right side of the road and dashed against motorcycle bearing registration No.KA-30/J-5445, due to which rider of the motorcycle, Vilas Madhukar Anvekar and his son, pillion rider – Subhay Vilas Anvekar succumbed to the injuries sustained in the accident on their way to Bombolin Hospital at Goa. The prosecution alleges that accident in question occurred due to actionable negligence of accused in driving the lorry bearing No.KA-31/5705 at the time of accident leading to the death of rider and pillion rider of motorcycle bearing No.KA-30/J-5445. The prosecution to prove the accusation leveled against the accused mainly relied on the oral evidence of PW-3 i.e., the eyewitness to the accident and shifted the injured, rider and pillion rider of motorcycle to the hospital for treatment and filed complaint Ex.P.9 and evidence of injured witness PW-6 and that of eyewitnesses PWs-7 to 9. The said evidence is sought to be

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corroborated with the spot panchanama Ex.P.1 and sketch map Ex.P.2, so also the evidence of Investigating Officer, PW-14. The trial Court recorded findings that the spot features at the place of accident recorded in spot panchanama Ex.P.1 has not been proved by the prosecution. The evidence of prosecution witnesses is conspicuously absent with regard to culpable rashness and negligence of accused in driving the lorry bearing No.KA-31/5705 at the time of accident. Further, none of the eyewitnesses other than CW-6 have spoken about lorry coming to the wrong side and PW-6 has deposed to the effect that motorcycle hit the lorry after PW-6 fell down from the twowheeler. On such finding, the trial Court has acquitted the accused.

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The evidence of PW-3 would go to show that he was proceeding on his motorcycle bearing No.KA-30/Q-2687 with pillion rider CW-10 (PW-8) from Chittakula towards Baithkol at 10 p.m. and CW-9 (PW-7) was riding his motorcycle following them. When they reached near Kapri temple cross of Kodibag, a truck overtook both the motorcycle and after some distance dashed against motorcycle coming from the opposite side on which they were proceeding. Due to the accident, rider and pillion rider of the said motorcycle have sustained injuries and

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he has arranged to send them to Government Hospital, Karwar, for treatment and then filed complaint as per Ex.P.9.

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PW-6 is the material injured eyewitness who was proceeding on the motorcycle driven by Vilas Madhukar Anvekar. PW-6 has deposed to the effect that on 29.04.2013 at 10 p.m. they were proceeding on the splendor motorcycle driven by maternal uncle Vilas Madhukar Anvekar and his son Subhay Vilas Anvekar. When they reached near Kapri temple main road while proceeding towards Sadashivgad, lorry by coming to wrong side dashed against their motorcycle due to which accident in question occurred. The rider and pillion rider of the motorcycle succumbed to the injuries suffered in the accident and he has suffered the injuries.

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The oral evidence of PWs-7, 8 and 9 would go to show that PW-3 Vidyadhar and PW-9 Lokanath were proceeding on the motorcycle bearing No.KA-30/Q-2687 which was driven by PW-3. PW-7 Shridhar was driving another motorcycle with pillion rider PW-8 Deepak. Their oral testimony has to be appreciated with reference to the spot features recorded under the spot panchanama Ex.P.1 and the sketch map as per Ex.P.2.

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CRL.A No. 100031 of 2016

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The spot panchanama Ex.P.1 and the evidence of PW-1, the spot panch witness to the panchanama Ex.P.1, photographs as per Ex.P.3 to Ex.P.8 and the evidence of PW14, Investigating Officer would go to show that the spot panchanama as per Ex.P.1 was prepared by PW-14 as shown by the complainant who is an eyewitness to the accident and sketch map was prepared as per Ex.P.2. The correctness of the features recorded in the panchanama Ex.P.1 and the sketch map as per Ex.P.2 has been denied by the defence. It is stated in the spot panchanama at Ex.P.1 that the lorry and the two wheeler were at the spot and further Ex.P.2 sketch map was prepared, so also 6 photographs were taken as per Ex.P.3 to Ex.P.6. The photographs at Ex.P.3 to Ex.P.8 have been marked subject to objection.

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PW-1 has admitted in his cross-examination that motorcycle is not shown in the sketch EX.P.2 and both PW-1 and PW-2 have signed on the panchanama in the police station. The co-panch to the spot panchanama Ex.P.1 has not supported the case of prosecution. PW-2 has admitted in his cross-examination that in Ex.P.3 to Ex.P.5, the truck and motorcycle involved in the accident are not seen and there was no trace marks of any accident at the place of accident. The

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CRL.A No. 100031 of 2016

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eyewitness PWs-3 and 6 have not spoken about lorry going to the wrong side and dashed against the motorcycle driven by Vilas Madhukar Anvekar.

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The recitals of spot panchanama Ex.P.1 and the sketch map Ex.P.2 speaks about the road at the place of accident runs South to North. Gopika Kalyana Mantapa is shown towards western side and Kapri temple on the eastern side. There was a small curve towards northern side at the place of accident. It has been elicited in the cross-examination of PW-3 that the accident occurred on Kodibag road near Kapri temple cross turning point. The lorry driven by accused was having 10 wheels and loaded with iron rod and with the said load of iron rod, the vehicle cannot move with high speed. However, PW-3 states that there was slope at the place of accident, but the same is not supported by any other evidence placed on record by prosecution. PW-3 has admitted that the left side portion of lorry was damaged and motorcycle went and dashed against the lorry.

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It has been elicited in the cross-examination of injured eyewitness PW-6 that his maternal uncle Vilas Madhukar Anvekar was riding motorcycle bearing registration

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CRL.A No. 100031 of 2016

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No.KA-30/J-5445 with two pillion riders and he was sitting last. When they reached near Kapri temple situated on the left side of the road, accident occurred and by the side of Kapri temple, there is a road joining to Kodibag Highway. PW-6 has further admitted that the road is having curve while joining to the highway and they were proceeding from the road joining to Kodibag Highway. PW-6 admitted that first he fell to the ground and the motorcycle dashed against the lorry.

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PW-8 also admitted in his cross-examination that the accident occurred at cross road near Kapri temple and placed his ignorance that the rider of motorcycle lost control over the vehicle and dashed against the lorry driven by accused.

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PW-9 has admitted in his cross-examination that when the lorry proceeds after overtaking the vehicle normally the happening on the front side of the lorry cannot be seen. PW-9 further admitted that there is a cross road near Kapri temple and it is up gradient one. PW-9 has further admitted that while crossing the curve road, rider of the motorcycle has to take note of the vehicle passing on the main road. The lorry was proceeding straight and it was having no occasion to pass

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through the curve. If the above referred evidence of material witnesses is appreciated with the evidence of PW-10, Investigating Officer, recitals of spot panchanama Ex.P.1 and the sketch map Ex.P.2, then it would go to show that the rider of the motorcycle after crossing the curve without noticing the moving vehicle on the road dashed against the lorry driven by the accused to its left side.

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Indisputably, the placement of motorcycle and the lorry at the place of accident is not found in the photographs Ex.P.3 to Ex.P.6. The back portion of lorry is only appearing in Ex.P.7 and Ex.P.8. Therefore, the photographs Ex.P.3 to 8 cannot be of any much assistance to subscribe the recitals of panchanama Ex.P.1 and the sketch map Ex.P.2 to show that accused while driving the lorry bearing No.KA-30/J-5445 at the time of accident has exceeded his way and proceeded to the extreme right side and dashed against the motorcycle driven by the accused. The alleged actionable negligence of accused in driving the lorry bearing No.KA-31/5705 leading to the accident in question has not been proved beyond all reasonable doubt out of the material evidence placed on record. The trial Court has rightly appreciated the principles enunciated in the decisions referred in paragraph 21 of its judgment.

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CRL.A No. 100031 of 2016

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Learned counsel for respondent/accused relied on the decision of Hon’ble Apex Court in STATE OF KARNATAKA V/S. SATISH [(1998) 8 SCC 493] wherein it has been observed and held that in the absence of evidence to establish, “negligence” or “rashness” in driving the vehicle, doctrine of res ipsa liquitur cannot be applied to convict the accused. The learned counsel also placed reliance on the decision of the High Court of Orissa in BADRI PRASAD TIWARI V/S.THE STATE

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(CRIMINAL REVISION No.484/1990 decided on

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07.07.1993) wherein it has been observed and held that the mere evidence of vehicle being driven with speed is not sufficient to establish actionable negligence of accused in leading to the accident in question.

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In view of the reasons recorded as above, in my opinion, trial Court has rightly appreciated the evidence on record and there are no valid reasons to interfere with the findings recorded by trial Court. Consequently, proceed to pass the following:

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ORDER

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Appeal filed by the appellant/State is hereby dismissed.

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CRL.A No. 100031 of 2016

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The judgment of trial Court on the file of Chief Judicial Magistrate, Karwar, in C.C.No.548/2013 dated 13.10.2015 is confirmed.

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The registry is directed to transmit the records with the copy of this judgment to trial Court.

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(Sd/-) JUDGE

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Jm/-

State of Karnataka v. Nisar S/O Kasim Saab Patel

Case brief

What is this about?

What did the court decide?

State of Karnataka v. Nisar S/O Kasim Saab Patel

Case brief

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