The State Vs Ashrith

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2018 CJ(Kar) 1186

HIGH COURT OF KARNATAKA (BENGALURU BENCH)

THE STATE V/S ASHRITH

Decided On: 02 July 2018

Hon'ble Judges: Mohammad Nawaz, J

Appeal No/Type: Criminal Appeal No 1184 of 2010

Advocates: CHETHAN DESAI, M.N. NEHRU

Result: Appeal dismissed.

Acts Referred:

(A) Indian Penal Code, 1860, Section 279, Section 338, Section 304(A) -
Rash driving or riding on a public way - Causing grievous hurt by act
endangering life or personal safety of others - Punishment for culpable
homicide not amounting to murder

JUDGEMENT

1. The State is in appeal against the judgment and order of acquittal dated 12.04.2010,
passed in C.C.NO.764/2009, on the file of the J.M.F.C.(III Court), Mangalore, Dakshina
Kannada, wherein the learned Magistrate acquitted the accused/respondent herein of the
offences punishable under Sections 279 and 304(A) of I.P.C.
2. The brief facts of the prosecution case are that:

On 26.12.2008 at about 7.30. p.m., accused being the driver of the car bearing
registration No.KL-19-Z- 6618 drove the same in Yeyyadi in Padavu village of Mangalore
on K.P.T.-Kavoor public road from Maryhill to Mangalore in a rash and negligent manner,
so as to endanger human life and dashed against the pedestrian by name Sharanappa
who was walking by the side of the road, due to the said accident, Sharanappa

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The State Vs Ashrith
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sustained grievous injuries and subsequently succumbed to the injuries in A.J. hospital
on 27.12.2008 at about 1.30 a.m. and thereby committed the offence punishable under
Sections 279 and 304(A) of I.P.C.

3. I have heard the learned High Court Government Pleader appearing for the State and
the learned counsel appearing for the respondent.

4. Learned High Court Government Pleader vehemently contended that P.W.1, P.W.2
and P.W.3 have supported the case of the prosecution, as much as they are the
eye-witnesses to the accident. P.W.1 is the son of the deceased who was accompanying
his father to bring ration from the shop. Accused being the driver of the car came from
behind and dashed against deceased on account of which, he fell down and sustained
grievous injuries. He further contented that accident is solely on account of rash and
negligent driving by the accused. He further contended that, evidence of P.W.1 is
corroborated by the evidence of P.Ws.2 and 3 and the trial court has failed to properly
appreciate their evidence and ultimately came to a wrong conclusion and thereby
acquitted the accused and the same has resulted in mis-carriage of justice. Hence, he
prays for reversal of the impugned judgment and order of acquittal passed by the trial
Court.

5. Per contra, learned counsel appearing for the accused contended that there are
material contradiction and discrepancies in the evidence of the prosecution witnesses.
The prosecution has failed miserably to establish that, accused was driving the vehicle in
a rash and negligent manner. He further contended that the accident occurred on
account of negligence on the part of the deceased himself, while he was trying to cross
the road. Hence, he submits that the trial Court, having appreciated the evidence on
record in the proper perspective has rightly acquitted the accused. Hence he prays for
dismissal of the appeal.

6. Having heard both the parties, the points that would arise for my consideration are
that:

(1) Whether the prosecution has proved that the deceased Sharanappa died on
account of the rash or negligent driving by the accused?

(2) Whether the judgment and order of acquittal passed by the trial court calls for any
interference?

(3) What order?

7. I answer the above formulated points as under:-

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The State Vs Ashrith
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Accident in question has taken place on 26.12.2008 at about 7.30 p.m. According to
the FIR, deceased by name Sharanappa and P.W.1, who is none other than the son of
the deceased were proceeding to shop at Yayyadi to bring ration, after finishing their
work and they were proceeding by walk. When they were thus proceeding, a Car came
from the side of Maryhill and dashed against Sharanappa, on account of which
Sharanappa fell down. The car driver stopped the car at a little distance. Immediately
after the accident few people who had witnessed the accident came near the spot and
even the accused also came there. Sharanappa had sustained injuries on his head and
there were certain other injuries also. He was shifted to A.J. hospital where he was
admitted as an in-patient. On the said compliant lodged by P.W.1, P.W.6-Head
Constable of Mangalore Rural Police Station registered a case in Crime No.264/2008 of
the said Police station under Section 279 and 338 of I.P.C. The injured Sharanappa
succumbed to the injuries at about 1.30 a.m. on 27.12.2008. Thereafter the further
statement of P.W.1 was recorded and Section 304(A) of I.P.C. was incorporated.
Subsequently after completion of investigation, P.W.9 has filed charge sheet.

8. The complainant was examined as P.W.1. He has deposed in his evidence that he
along with his father was going towards Yeyyadi to bring ration and when they were
near Maryhill, car in question came in a high speed and dashed against his father on
account of which his father sustained injuries to his head etc. There after he lodged a
complaint as per Ex.P.1. He further deposed that at 2.00 a.m. his father succumbed to
the injuries. In the cross examination of the said witness it is elicited that on either side
of the road there is 15 feet mud road. The accident occurred on the middle of the
concrete road. After the accident, the car which was involved in the accident stopped at
about 25 feet from the spot and there were two persons in the said car. Both the
persons came to the spot where the accident took place. It is further elicited that the
right bonnet of the car was damaged and the right side front glass of the car was also
damaged.

9. P.W.2 has deposed that both C.W.1 and the deceased were going by walk from
Maryhill towards K.P.T. at about 7.30. p.m. At that time a car from Maryhill side came
and dashed against Sharanappa on account of which he sustained injuries and
thereafter the people who were present there shifted the injured to A.J. hospital in a
jeep. P.W.2 is also an attestor to Ex.P.2, spot mahazar and Ex.P.3-Sketch. In the cross
examination, it is elicited that since two years he is staying along with P.W.1 in a
building where construction work was going on. He has stated in the cross examination

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The State Vs Ashrith
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that he came to know about the accident only after hearing the noise and thereafter he
went to the spot. He further stated that on the said day only the statement of C.W.1
(P.W.1) was recorded and on the next day i.e. on 27.12.2008 his statement was
recorded.

10. P.W.3 is another witness who is said to have witnessed the accident. According to
him he was working in the pump house of the Mangalore City Corporation and he was
standing in front of the pump house and at that time, the car in question dashed
against a person and he went and saw the victim and noticed that the victim had
sustained injuries to the head and leg. The accident occurred on account of rash driving
of the car. His statement was recorded on the next day. He has further deposed that in
front of the pump house, two persons were crossing the road, at that time the accident
took place. In the cross examination by the defence it has been elicited that the
deceased was crossing the road from the right side of Madhuvan bar & restaurant to go
to other side of the road and immediately after the accident, the car was stopped.

11. P.W.4 is the doctor who conducted the post mortem examination and issued post
mortem report as per Ex.P.6. According to him the cause of death is on account of
head injury sustained.

12. P.W.5 is the owner of the car as well as the father of the accused. He has stated
that the Police seized the car in question and notice was issued to him as per Ex.P.9. He
replied to the notice as per Ex.P.10 and he has also stated that accused was having the
driving licence. In the cross examination, it is not disputed that the accused was
possessing a driving licence. P.W.5 has further deposed that he is not aware as to who
was driving the car when the accident occurred.

13. P.W.6 is the head constable of the Mangalore Rural Police Station. He has registered
the case on the complaint lodged by P.W.1 and issued FIR-Ex.P.11 to the Jurisdictional
Court. Thereafter on 27.12.2008 he gave a requisition to include Section 304(A) of
I.P.C.

14. P.W.8 is a panch witness to the spot mahazar-Ex.P.2; the Sketch-Ex.P.3 and
Inquest report- Ex. P.4.

15. P.W.9 is the C.P.I who took over the investigation from P.W.7 and completed the
investigation and filed charge sheet against the accused.

16. Having re-appreciated the entire evidence and material on record, it is seen that
there is no dispute with regard to the identity of the accused. However, only question

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to be decided is as to whether the accused was driving the vehicle in a rash or negligent
manner and as to whether the accident is solely on account of his rash or negligent
driving?.

17. It has come in the evidence that the car was being driven by the accused and
immediately after the accident, the accused stopped the car and came to the spot
where the victim had fallen having sustained injuries. As per the spot mahazar-Ex.P.2,
the car was stopped at a distance of 20 feet from the spot. P.W.1, in his cross
examination has admitted that there is 15 feet mud road on either side of the road and
the accident occurred on the middle of the concrete road. P.W.2 in his cross
examination has stated that there is a 2 feet foot path on either side of the road. P.W.3
in his evidence as well as in his cross examination has clearly deposed that the accident
occurred when the deceased was trying to cross the road. The sketch at Ex.P.3 also
goes to show that the accident was on the concrete road and not on the mud road or
foot path. Even considering the damage to the car in question, it can be seen that front
glass of the car on the right side was damaged and there was dent on the right side
bonnet of the car. Admittedly the car was moving on the left side of the road and hence
from the evidence of P.W.3 if right side bonnet of the car is to be damaged then the
deceased must have travelled to certain distance on the concrete road.

18. It is no doubt true that witnesses have deposed that the car in question was going
in a high speed, if that is so the car could not have been stopped within a little distance
of about 20 feet from the spot. On a careful consideration of the entire material
evidence on record it cannot be said that the prosecution has been able to establish the
rash or negligent driving of the car by the accused. The trial Court having considered all
these aspects has rightly come to the conclusion that the prosecution has failed to
prove the guilt of the accused beyond all reasonable doubt.

19. I do not find any other reasons for deviating from the findings recorded by the trial
Court. Hence, I answer points No.1 & 2 in the negative and pass the following order:

The appeal is dismissed.

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