State of Karnataka Vs Abdul Rasool S/O Maqbool Murgod

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) & (3) OF CR.P.C., SEEKING TO GRANT SPECIAL LEAVE TO APPEAL AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 24.10.2016 PASSED BY THE IV ADDL. DISTRICT AND SESSIONS JUDGE, DHARWAD IN CRIMINAL APPEAL NO.79 OF 2016, WHEREBY THE RESPONDENT/ACCUSED WAS ACQUITTED OF THE OFFENCES PUNISHABLE UNDER SECTIONS 279 AND 337 OF IPC AND TO CONFIRM THE JUDGMENT AND ORDER DATED 27.06.2016 PASSED BY THE PRL. CIVIL JUDGE (SR.DN.) AND CJM, DHARWAD, IN C.C.NO.201 OF 2015 AGAINST THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 279 AND 337 OF IPC.

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HC-KAR

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE RAJESH RAI K

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE RAJESH RAI K)

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The State has preferred this appeal against the judgment of acquittal in Crl.A.No.79/2016 dated 24.10.2016 passed by the IV-Additional District and Sessions Judge, Dharwad (hereinafter referred to as the 'First Appellate Court'), whereby the learned First Appellate Court allowed the appeal filed by the respondent-accused by setting aside the judgment of conviction and order on sentence dated 27.06.2016 in C.C.No.201/2015 passed by the Principal Senior Civil Judge and CJM, Dharwad (hereinafter referred to as the ‘Trial Court') and acquitted the respondent-accused for the offence punishable under Section 279 and 337 of IPC.

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For the sake of convenience, the parties are referred to as per their rankings before the trial Court.

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HC-KAR

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The abridged facts of the case are that on 28.04.2016 at about 1.00 p.m., on a public road, near Sub-Urban Police Station, Dharwad, the respondentaccused being the driver of KSRTC bus bearing registration No.KA-25/F2892 drove it in a rash and negligent manner so as to endanger human life and dashed it to Honda Dio motorcycle bearing registration No.KA-25/EC-2484 wherein PW3 and PW4 were proceeding in front of the said bus. As a result, the rider and pillion rider of the said motorcycle sustained simple injuries and were admitted to the hospital for treatment. On the same day, PW3 has lodged complaint before the Sub-Urban Police Station against the driver of the bus as per Ex.P2. On the strength of Ex.P2-complaint, the police registered the FIR against the respondent-accused for the offence punishable under Sections 279, 337 and 338 of IPC in Crime No.63/2015 as per Ex.P8. Subsequently, PW9 conducted investigation and laid charge sheet against the

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respondent-accused for the offence stated above before the Trial Court.

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The Trial Court after securing the presence of

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the accused framed the charges for the aforementioned offences and read over the same to the accused. However, the accused pleaded not guilty and claimed to be tried.

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To prove the charges leveled against the

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accused, the prosecution in total examined 9 witnesses as PW1 to PW9 and got marked 8 documents as Ex.P1 to Ex.P8.

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On assessment of oral and documentary evidence, the Trial Court convicted the accused for the offence punishable under Section 279 and 337 of IPC and sentence him to pay a fine of ₹1,000/- for the offence punishable under Section 279 of IPC and in default of payment of fine, he shall undergo simple imprisonment for 6 months and also sentenced him to pay a fine of ₹500/for the offence punishable under Section 337 of IPC and in

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default of payment of fine, he shall undergo simple imprisonment for 3 months. Aggrieved by the said judgment of conviction and order on sentence, the accused preferred an appeal before the First Appellate Court in Crl.A.No.79/2016.

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On reassessment of the evidence on record, the First Appellate Court set aside the judgment passed by the Trial Court and acquitted the accused for the charges leveled against him. The said judgment is challenged in this appeal by the State.

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Heard the learned HCGP Smt. Girija S Hiremath, for the appellant-State and the learned counsel Sri.J.S.Shetty, for the respondent-accused.

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The primary contention of the learned HCGP for the appellant-State is, the First Appellate Court, without appreciating the evidence on record in a right perspective, has grossly erred in allowing the appeal and setting aside the judgment of conviction and order on sentence passed

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by the Trial Court. She has contended that PW3 and PW4 are the injured eyewitnesses to the incident and both of them have categorically stated in their evidence, the accused being the driver of the KSRTC bus, drove it in a rash and negligent manner and dashed to their motorcycle to its left portion, resulting them sustaining injuries. The evidence of these two witnesses corroborates to the testimony of the Investigation Officer-PW9 and the wound certificates/Ex.P4 and P5. Despite, the First Appellate Court has acquitted the accused by allowing the appeal. Accordingly, she prays to allow the appeal and set aside the judgment passed by the First Appellate Court.

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Per contra, the learned counsel for the respondent-accused submits that the judgment under challenge does not suffer from any perversity or illegality since the First Appellate Court has rightly appreciated the evidence on record and passed a well reasoned judgment. According to the learned counsel for the respondentaccused, PW3 and PW4, the injured witnesses, have

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categorically admitted in their evidence that the KSRTC

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bus dashed to their motorcycle on the left portion but on perusal of the sketch, the same depicts, PW3 was riding his motorcycle on the extreme left side of the road i.e. close to the footpath and the bus was coming behind the motorcycle on the right side. In such circumstances, it is highly impossible to cause an accident on the left portion of the motorcycle. Hence, the testimony of PW3 and PW4 creates a doubt in respect of the alleged accident in question. Learned counsel for the accused has also contended that the eyewitnesses to the incident i.e. PW7 and PW8 have totally turned hostile to the case of the prosecution. Further, PW1 and PW2, the witnesses to the spot mahazar, have also turned hostile to the case of the prosecution. In such circumstances, the sole testimony of PW3 and PW4 cannot be relied to prove the charges leveled against the accused. Accordingly, he prays to dismiss the appeal.

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HC-KAR

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Having heard the learned counsel for the parties and on perusal of the entire material available on record, the only point that would surface for my consideration is:

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“Whether the First Appellate Court is justified in acquitting the accused for the offence punishable under section 279 and 337 of by setting aside the judgment of conviction and order on sentence passed by the trial court in C.C.No.201/2015?

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I have given my anxious consideration to the arguments advanced by both the learned counsel and perused the materials on record.

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As could be gathered from the records, PW3 and PW4 are injured eyewitnesses have stated that the driver of the bus dashed the bus on the left portion of their motorcycle while they were riding the motorcycle on the left side of the road. On careful perusal of the spot sketchEx.P1, it could be seen, the accident in question took place on the extreme left side of the road near to the foot path. Further, PW3 was riding his motorcycle on the extreme left

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side of the road and the accused was driving the KSRTC bus in the right side of the motorcycle of PW3. In such circumstances, it is impossible to dash the bus on the left side of the motorcycle. Further, both these witnesses have stated that the accused was driving the bus in a high speed. However, they have not stated that he was driving the bus in a rash or negligent manner. The Hon’ble Apex Court in the case of State of Karnataka v. Satish¹ has settled the position of law that mere driving of a vehicle in high speed neither amounts to negligence nor to rashness. In the said judgment, the Hon’ble Apex Court, at paragraph 4, has held as under:

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“4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to

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1 (1998) 8 SCC 493

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establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.”

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Applying the above principles to the facts and circumstances of this case, I am of the considered view

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that the prosecution has failed to prove the rash or negligent driving of the bus by the accused. Nevertheless, the PW7 and PW8, the independent eyewitnesses, have also totally turned hostile to the case of the prosecution. There is no such corroborative piece of evidence available

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on record to rely the testimony of PW3 and PW4. Moreover, this is an appeal against the judgment of acquittal and as per the settled position of law by the Hon’ble Apex Court, if the trial Court has taken a plausible view while acquitting the accused, the Appellate Court shall not interfere in the said judgment. In that view of the matter, I am of the considered view that the First Appellate Court is justified in acquitting the accused for the offence punishable under Section 279 and 337 of IPC by setting aside the judgment of conviction and order on sentence passed by the Trial Court in C.C.No.201/2015. Hence, interference in the judgment of the First Appellate court does not call for in this appeal. In that view of the

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