Allowed

State of Karnataka v. Damodhar @ Deepak

Karnataka HC13 Oct 2023CRL.A/100039/2016

Case brief

AI extract

What is this about?

Criminal Appeal against acquittal in a motor vehicle accident case causing death. The High Court held the acquittal erroneous due to misappreciation of evidence, directed convicted of rash driving causing death and sentenced the accused.

What did the court decide?

The judgment of acquittal set aside; accused convicted and sentenced to simple imprisonment (3 months each for §§279, 337, 338 and 1 year for §304-A IPC) with a fine of ₹5,000.

State of Karnataka Vs Damodhar @ Deepak — Motor Accident Claims | Karnataka HC (2023)

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1 - NC: 2023:KHC-D:12487 CRL.A No. 100039 of 2016

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 13^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.100039/2016 (A)

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BETWEEN:

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

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…APPELLANT

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(BY SRI PRAVEEN Y. DEVARADDIYAVAR, HCGP)

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AND:

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DAMODHAR @ DEEPAK, S/O. RAMACHANDRA NIMALE, AGE: 42 YEARS, OCC: LORRY DRIVER, R/O: BARAGAL, DEVALAMAKKI, KARWAR.

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VIJAYALAKSHMIM KANKUPPI Digitally signedbyVIJAYALAKSHMIM KANKUPPI Date: 2023.12.1915:00:24 +0530

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…RESPONDENT

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(BY SRI GIRISH A. YADAWAD, ADVOCATE)

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THE CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) & (3) OF CR.P.C., SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL PASSED IN C.C.NO.279/2013 ON 15.09.2015 ON THE FILE OF JUDICIAL MAGISTRATE FIRST CLASS, ANKOLA AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 15.09.2015 PASSED BY JUDICIAL MAGISTRATE FIRST CLASS, ANKOLA, IN C.C.NO.279 OF 2013 AND ETC.

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

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NC: 2023:KHC-D:12487 CRL.A No. 100039 of 2016

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JUDGMENT

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This appeal is filed by the State challenging the judgment of acquittal dated 15.09.2015, passed by the Judicial Magistrate First Class, Ankola, in C.C.No.279/2013, acquitting the respondent/accused for the offences punishable under sections 279, 337, 338 and 304-A of the Indian Penal Code, 1860.

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Brief facts of the case: It is the case of

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prosecution that on 16.02.2013 at about 03.15 p.m. on NH-17 near Vitthal Ghat at Ankola, the accused was driving tipper lorry bearing No.KA-30/6698 from Karwar towards Ankola with a high speed and in a rash and negligent manner so as to endanger human life and lost his control over the vehicle and came to the wrong side of the road, dashed to the Maruti Alto car bearing No.KA-31/M-4929, which was coming from Ankola towards Yallapur and thus in the said accident the deceased Parameshwar Timmanna Bhat sustained grievous injuries

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and succumbed to the injuries on 14.03.2013. Therefore the offence is foisted as above stated.

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Upon investigation, the police have filed the

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charge sheet against the accused for the above said offences. After conducting full fledged trial, the trial Court has acquitted the accused. Being aggrieved by that the State has preferred the present appeal.

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The accused/respondent has put his appearance though advocate.

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The learned HCGP submitted that though there is sufficient evidence to prove that the accused has committed offence in question but on the flimsy grounds, the trial Court has acquitted the accused erroneously. Further submitted that the observation of the trial Court that the driver of Alto car PW.5 has also contributed negligence, thus gave reason for acquitting the accused, is completely perverse approach. Further submitted that the witnesses who were driver and inmates in the car have not

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identified the accused, therefore acquitted, is perverse for the reason that PWs.1, 4 and 5 have categorically admitted that the accused was driving the tipper lorry and caused the accident. Without appreciating this evidence in true and correct perspective manner the trial Court has erroneously acquitted the accused. Therefore prays to allow the appeal and hold the accused guilty of the offence.

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On the other hand, learned counsel for respondent/ accused submitted that, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. Therefore, justified the judgment of acquittal passed by the trial Court.

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Learned counsel for the respondent further submitted that PWs.1, 4 and 5 have not identified the accused by stating that the he was on the wheel at the time of accident. Therefore, it is correctly observed by the trial court. Further, submitted that when the identification of the accused by the prosecution witnesses is in doubt,

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then, the investigating officer ought to have taken the recourse of Test Identification parade, but did not do so. Therefore, the accused is not identified and that benefit shall go to the accused and that is what held by the trial court. Hence, by justifying the judgment of acquittal, prays to dismiss the appeal.

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The point that arise for consideration is as

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follows:

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i) Whether, under the facts and circumstances, from the evidence on record, prosecution is able to prove the guilt of the accused for the offence punishable under Sections 279, 337, 338 304-A of Indian Penal Code?”

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In the present case, PW.1 is the complainant and owner of the car; PWs.2 and 3 are spot mahazar witnesses; PW.4 is the eye witness; PW.5 is driver of car; PW.6 is owner of Tipper lorry; PWs.7 and 8 are investigating officers.

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The accused is charged with the offence as per

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the charges levelled against him that driver of tipper lorry caused accident resulting death of deceased Parameshwar Timmanna Bhat.

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PW.1 is the husband of PW.5 and deposed that on 16.02.2013 he and PW.5 came to Haladipura village, and wherein they have requested the deceased and his son Rameshwar to bring back them to Yellapur in the car and PW.5 was driving the car and when the car reached at the place called Vittal Ghat at 3.45 p.m., a tipper lorry came in rash and negligent manner with high speed and dashed the Alto Car, which was being driven by PW.5, and sustained injuries. It is evident that due to said accident,

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an iron rod pierced into leg of deceased and others have also sustained injuries and later on the deceased died. It is the evidence of PW.1 that he has seen the driver of lorry and identified that the accused was driving lorry as on the

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date and time of the accident. It is cross verified to the effect that how many persons were in the lorry and for

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this, PW.1 has stated that he has not seen how many persons were in the lorry. Just because PW.1 is not able to say who were in the lorry is not liable to be disbelieved. Further, soon after the accident there was trauma situation and PW.1 has made arrangement to call 108 ambulance to shift the injured and also himself to the hospital and in that process, just because there is some minor discrepancies in seeing and identifying the accused, cannot go to the core of the prosecution case.

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PW.4 is the eye-witness and he is the son of the deceased. PW.4 had identified the accused that he was driving the tipper lorry and caused accident. Upon perusing cross-examination, it is revealed that PW.4 is not telling lie before the Court.

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PW.5 is the wife of PW.1 who was driving the Alto car had stated that after crossing Vittal Ghat they reached a petrol bunk; at that time, tipper lorry was coming from opposite direction and by coming wrong side, that means, when Alto car was driving at her left side and

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tipper lorry by coming opposite direction on wrong side of the road, dashed front portion of the Alto car and thus the inmates have sustained injuries. It is evidence of PW.5 that she has not seen the driver of tipper lorry. But to this aspect, when PW.5 is cross-examined by the prosecution, after treating as partly hostile, PW.5 has quite naturally stated that soon after the accident, she lost her consciousness; therefore, she could not see the driver of tipper lorry. The evidence of PW.5 is found to be a natural one. When on a national highway two vehicles collided opposite each other as head on collusion, it is not possible for the victim/inmates of the car to see who are there in the lorry and who was driving the lorry. The paramount thing is that soon after the accident, the injured shall be shifted to the hospital rather giving attention to the other things. PW.5 has lost her consciousness quite naturally she could not identify the driver/accused at the time of the accident. Therefore, the evidence of PW.5 cannot be stated that she is telling false before the Court.

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Therefore, from the cumulative effect of the evidence of PWs.1, 4 and 5, it is proved that the accused was driving the tipper lorry and caused accident. Their evidence cannot be said that these witnesses have stated at the instigation of the police. PW.6 is the owner of tipper lorry and the investigating officers have issued notice to PW.6 under Section 133 (C) of the Motor Vehicles Act, calling upon him to produce driving licence and to state who was driving and other particulars. PW.6 has stated that he has replied to the police as per Ex.P.6 by stating

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that accused was driving tipper lorry as on the date of accident. During course of the evidence, PW.6 admitted he has replied as per Ex.P.6 to the investigating officer, wherein he has stated that the accused was driving the tipper lorry. PW.6 has turned hostile to the prosecution case and has tried to give answers upon the fact that the accused was driving the tipper lorry as on the date and time of the accident. Therefore, from the evidence of PW.6, it is proved that he was trying to avail answers to give clear picture to the Court. But in the cross-

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examination, PW.6 admitted that he has given reply as per Ex.P.6, in which PW.6 has written and replied that the accused was in the tipper lorry. Therefore, it is proved from these evidences that the accused was driving the tipper lorry.

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PW.7 and 8 are the investigating officers, they have narrated the sequence of events of investigation. Upon perusing evidence of the investigating officers, what they have done regarding accident is found to be having done in a natural course of their responsibility for carrying out investigation. Therefore, from the evidence of PWs.7 and 8 also it is proved that accused was driving the tipper lorry and dashed the alto car resulting into death of the deceased Parameshwar Bhat.

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Just because the investigating officer has not conducted test identification period, that cannot be a ground to throw away the prosecution case in toto. When witnesses have failed to identify the accused, because of some circumstances as in the present case, soon after the

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accident there was trauma situation and PW.5 lost her consciousness and it is not possible for PW.1 and 4 to see

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who are in the lorry, then conducting test identification period is necessary. PW.1 and 4 have seen the accused was driving the tipper lorry. While travelling in the alto car, it cannot be able to watch who are driving the vehicle which overtakes the car or coming vehicle in the opposite direction. It is not possible to watch drivers of each vehicle plying on the road. While travelling in the vehicle it cannot be expected to watch who is driver of the vehicles and how many persons are there in the vehicles and who are in the vehicles plying on the road. Therefore, under these circumstances and that to PW.5 has lost her consciousness

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soon after the accident. Therefore, quit naturally she has stated that she has not seen the accused at the time of the accident. But PW.1 and 4 have identified the accused. From the evidence of PW.7 and 8 investigating officers, it is proved that the accused was driving the tipper lorry. Therefore, when the prosecution is able to put forth the evidence above discussed, those ought to have been

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appreciated correctly by the trial Court, but the Trial Court has cited flimsy reasons while acquitting the accused.

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One of the observations of the Trial Court is that PW.5 also has contributed negligence. This is absurd observation from the trial court. From the evidence on record, Ex.P.3- spot panchanama and Ex.P.14-spot sketch, it is proved that Alto car was on its correct side that means on its left side of the road. The tipper lorry while coming opposite to the alto car has to maintain its correct side but without maintaining the correct lane by coming to the wrong lane opposite to alto car, rammed the alto car. Therefore, the observation made by the trial court in this regard that PW.5 has also contributed negligence is completely perverse approach. The trial court has not appreciated the evidence on record correctly, resulting into erroneous judgment of acquittal. Therefore, judgment of acquittal is liable to be set aside. Hence, it is held that the respondent/accused is held punishable under Section 279,

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337, 338 and 304A of IPC. Hence, I proceed to pass the following:

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ORDER

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i) The appeal is allowed.

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ii) The judgment of acquittal dated 15.09.2015, in C.C.279/2013, passed by the J.M.F.C., Ankola is set side.

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iii) The accused is held guilty of the offence punishable under Sections 279, 337, 338 and 304-A of IPC. The accused is sentenced to undergo simple imprisonment for a period of 3 months each for the offences punishable under Sections 279, 337 and 338 of IPC.

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iv) The accused is sentenced to undergo simple imprisonment for a period of one year for the offence punishable under Section 304-A of IPC and to pay fine of

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Rs.5,000/-. In default depositing fine amount, the accused shall undergo further imprisonment for a period of one month.

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v) All the substantial sentences shall run concurrently.

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vi) Regarding disposal of Mos.1 and 2, the order made by the trial court is confirmed.

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Sd/JUDGE

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MRK- Upto para 5 HMB- Para 6 to 10 SSP- para 11 to end List No.: 3 Sl No.: 17 CT-ASC

State of Karnataka v. Damodhar @ Deepak

Case brief

What is this about?

What did the court decide?

State of Karnataka v. Damodhar @ Deepak

Case brief

What is this about?

What did the court decide?

What the court decided

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