State of Karnataka appealed against an acquittal in a case involving rash driving causing death under Sections 279 and 304(A) IPC. The High Court found that eyewitnesses were unreliable chance witnesses and the investigation was flawed.
The criminal appeal was dismissed and the judgment of acquittal by the trial court was confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 1337 OF 2016
BETWEEN:
STATE OF KARNATAKA, REP. BY THE POLICE INSPECTOR, MANGALURU RURAL POLICE STATION, KULSHEKAR - KAIKAMBA, MANGALURU, D.K.
REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU - 575 005. …APPELLANT (BY SRI. M.R.PATIL, HCGP)
AND:
Digitally signed by SANDHYA S Location: High Court of Karnataka
SHIVARAMA, AGED ABOUT 42 YEARS, S/O THIMMAPPA SAPALYA, R/AT OKKETTHURU MOODA HOUSE, VITTLA KASABA VILLAGE, MANGALURU, D.K. - 575 005.
…RESPONDENT
(RESPONDENT SERVED & UNREPRESENTED)
THIS CRL.A. FILED U/S 378(1) AND (3) CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AND SET ASIDE THE JUDGEMENT AND ORDER OF ACQUITTAL DATED 18.04.2016 PASSED IN C.C.NO.1451/2014 BY THE J.M.F.C.(III COURT), MANGALURU, D.K., ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 279 AND 304(A) OF IPC AND ETC.
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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The State has preferred this appeal against the
judgment of acquittal passed by the JMFC (III Court), Mangaluru, D.K. in C.C.No.1451/2014 dated 18.04.2016 (for short hereinafter referred to as 'trial Court').
referred in the same rank as referred by the trial Court.
On 16.03.2013 at about 1.50 p.m. the accused being
the driver of lorry bearing registration No.KA-19-A-3465 drove the same from Pumpwell towards B.C.Road in a rash
and negligent manner, so as to endanger the human life and at Kankanady Village, Pumpwell, Mangaluru Taluk dashed to pedestrian Damodara Naik i.e. the elder brother CW.1/PW.1, who was walking on the northern side of the
road. Due to which, the said Damodara Naik sustained severe injuries on his back head, right shoulder, chest,
stomach, waist, back, left cheek, chin. Then he was shifted to Indian Hospital, but on the same day at 3.00 p.m. he succumbed at the hospital due to fatal injuries. Thus, the accused committed the offences punishable under Sections 279 and 304(A) of IPC.
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accused. Being aggrieved by the impugned judgment of acquittal, the State has preferred the present appeal.
to 7 in accordance with law and facts. The reasons assigned by the trial Court are erroneous. The order of trial Court is manifestly unjust, unreasonable and it has ignored the evidence and misread the material on record and documents. The trial Court has not raised a proper probabilities and inference on the basis of evidence on record. On all these grounds, he sought for allow this appeal.
respondent/accused, he remain unrepresented. Hence, arguments on respondent's side is taken as nil.
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8. Having heard the arguments of learned HCGP
and perusal of records, the following points would arise for my consideration:
judgment of acquittal?
Point No.2: As per final order.
Regarding Point No.1:
are 15 witnesses in the charge sheet. Out of them, PW.1 is the complainant, PWs.2 and 3 are the eye witnesses to the alleged incident, PW.4 has attested to the spot mahazar, PW.5 is the owner of the lorry bearing registration No.KA-19-A-3465. PWs.6 and 7 are the investigating officers who speak about their respective investigations. PW.1 is not an eye witness to the alleged
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incident. With regard to eye witnesses PWs.2 and 3 are concerned, in paragraphs 13 to 19, the trial Court has observed as under:
"13. The CW.2 is cited as an eye witness who examined as PW.2 who at his chief examination specifically admits that the deceased was his relative and it can be gathered from his chief examination that he is a chance witness. The chance witness is always weak type of evidence. Further the chance witness is a close relative of the deceased. His chance of presence in the spot is highly doubtful. But anyhow it is the duty of the court to meticulously peruse the evidence of PW.2 to trace out the truth. He at his cross examination admits that the deceased wife has filed a case for compensation. He also admits that at the time of incident the lorry was fully loaded. He was at 30 feet away from the incident place. Immediately after accident many people gathered and some public have made phone call to police and public have shown Accused person to police in the spot. Admittedly he has not shown the Accused person to the police. He also admits that the incident place is a junction place and he further admits that actually he do not know which portion of the lorry hits the deceased and he further admits that always the traffic police on duty in the incident place and
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further he on suggestion stated that the deceased might have an habit of drinking alcohol, but has not denied that the deceased having habit of drinking alcohol.
The PW.2 stated in his chief examination that “ ಈ �ೇ�ನ ಮೃತ �ಾ�ೕದರ �ಾ�� ಪ�ಚಯ ಇದ�ರು . ಅವರು ನನ� �ಾವ ”
The PW.2 admitted in his cross examination conducted by the learned counsel for the Accused that " ಮೃತ��ೆ �ೆಂಡ! ಇ�ಾ�"ೆ . ಅವರ ತಮ#
�ೋಡು%ಾ&"ೆ . ಮೃತರ �ೆಸ�ನ() ಪ��ಾರ ಸ()��ೆ�ೕ�ೆ . �ಾನು *ಾ�ಯನು� �ದಲು 30 ಅ, ದೂರ-ಂದ �ೋ,�ೆ�ೕ�ೆ . *ಾ�ಯ() *ೋ,ತು& ಾ� �ೆಸರು ೇ, ಆ/ 0ಾ!1ಾ. 3ೕ(ೕಸ��ೆ ಅೆ)ೕ ಇದ� ಜನರು 5ೕನು 1ಾ,�ಾ�"ೆ . ಅಪ6ತ7ಾದ ಕೂಡೇ ಜನರು 9ೇ��ಾ�"ೆ . *ಾ� :ಾಲಕನನು� ಸ;ಳದ() 3ೕ(ೕಸರು %ೋ��ದರು . �ಾನು 3ೕ(ೕಸ��ೆ :ಾಲಕ ಮತು& *ಾ�ಯನು� ಸ;ಳದ() �ೋ,�ೆ�ೕ�ೆಂದು �ೇ=�ೆ >ೕ,�ೆ�ೕ�ೆ . ಪಂ?7ೆ@ ರ9ೆ& ತುಂ�ಾ ಜನ >Aಡ ರ9ೆ& ಎಂದ"ೆ ಸ�. ಮೃತರು ಮದ�Cಾನ 1ಾಡು!&ರಬಹುದು . 13 ಟG ತುಂAರುವ *ಾ� �ಾವH �ೇಳIವ �ೕ!ಯ() 7ೇಗ7ಾK
�ೋಗಲು 9ಾಧ�Mಲ) ಎಂದ"ೆ ಸ�ಯಲ) ”
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14. The PW.3 is another eye witness who is also a chance witness. At his cross examination he stated that he was working in the Father Muller's hospital since 15 years. His time of working is 8.00 am to 5.00 p.m. on the date of incident i.e. 16.3.2013 he was on duty. The time of incident was 2.00 p.m. the 2.00 p.m. is his working time. Why he was present in the spot has not been properly explained. Further at his cross examination he admits that the deceased was his childhood friend. Before his visit to spot many people gathered there, he saw the deceased Sri.Damodar was under lorry and he further admits that the people gathered there shown the accused, it means actually he has not seen the incident. If actually he has seen the incident he must have the personal knowledge of accused and manner of accident. The PW.2 specifically admits that the traffic police men always on duty at Pumpwell circle but PW.3 stated that he does not know whether traffic police were working at Pumpwel. Further he admits at his cross examination actually he do not know what has been written in his 161 statement. More over pw3 is a chance witness. On perusal of his chief as well as cross examination, his presence in the scene of occurrence creates doubt. The PW.1 to 3 categorically stated that many public have seen the incident but IO has not made efforts to secure those
independent eye witnesses. Pw1 and 2 are the blood relatives of deceased and pw3 is child hood friend of deceased, apart from these witnesses many other natural witnesses when available IO could have secure those independent natural witness to remove the reasonable doubts.
The PW.3 stated in his examination that “ ನನ�ೆ ಮೃತ �ಾ�ೕದರ �ಾ�� ಪ�ಚಯ ಇದ�ರು . �ಾನು ಮ�ೆ�ೆ �ೋಗಲು ಬN¸ÁÖ¥ï£À°è �ಾಯು!&�ೆ� .
The PW.3 admitted in his cross examination conducted by the learned counsel for the Accused that “£Á£ÀÄ 15 ªÀµÀðUÀ½AzÀ ¥sÁzÀgï ªÀÄÄ®ègïì D¸ÀàvÉæAiÀÄ°è PÉ®¸À ªÀiÁqÀÄvÉÛãÉ.”
15. The PW.4 is a spot mahazar witness. He at his cross examination specifically admits that on the say of police he has become witness in the present case he has not seen the accused person.
16. The PW.5 is the owner of the offending lorry has completely turned hostile to the prosecution case. The learned APP permitted to cross examine PW.5. At his cross examination also nothing has been elicited to believe the Ex.P11 and Ex.P12.
17. The PW.7 who registered the case he at his cross examination admits that before the complainant came to police station and lodged
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complaint he has no other any intimation about this incident and further he admits that he was seeing the accused person before the court for the first time, prior to that he has not seen the accused person anywhere. As per PW.2 the incident was informed to the police station through phone and police immediately visited the spot. But as per PW.7 they have no intimation about this incident till complainant came to police station at evening they have not visited the spot and they have not helped the public to take the injured to the hospital which is totally contradictory statement to the statements of eye witness.
The PW.7 admitted in his cross examination that " (Oತ ದೂರು �Pೕಕ��ದ �ದಲು ನನ�ೆ ಈ ಘಟ�ೆ ಬ�ೆR SಾವH�ೇ 1ಾT! ಇರ(ಲ) . �ಾನು ಈ ಪUಕರಣದ ಆ"ೋWಯನು� ಇ�ೇ �ದಲ �ಾ� �ೋಡು!&�ೆ�ೕ�ೆ ಎಂದ"ೆ ಸ� .”
18. The PW.6 is the second I.O. who has conducted major portion of investigation and filed charge sheet against the accused person. He also at his cross examination specifically stated that before receiving the file he has no information about this incident. As per PW.1 the incident place is little bit ascending. But as per I.O. PW.6 the Incident place is an equal and flat road, the Incident is neither a ascending nor descending, it is a plain and level road. When I.O.
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has seized the lorry at least he could not made efforts what was loaded in the said lorry. On suggestion he specifically stated that actually he does not know what loaded in the said lorry. His evidence creates doubt about his visit to the spot. If he could have seen the spot his evidence may corroborate with the evidence of PW.1.
19. Under the above said facts and circumstances the prosecution has utterly failed to prove the manner of accident and also to connect the accused to the alleged incident beyond reasonable doubt. There is no cogent evidence before the court to believe the charge U/s 279 of I.P.C. and eye witnesses are very doubtful, their presence in the scene of occurrence creates strong doubt for reasons stated supra. Hence, the accused is always entitled for the benefit of doubt. Accordingly, I answer this Points No.1 and 2 in the "Negative"."
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Regarding point No.2:
proceed to pass the following:
ORDER
Sd/JUDGE
PGG
2 issues framed by the court
Whether grounds exist to interfere with the impugned judgment of acquittal?
Whether the prosecution failed to prove the manner of accident and connect the accused beyond reasonable doubt?
2 provisions across 2 enactments
STATE OF KARNATAKA
SHIVARAMA
G BASAVARAJA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
