Veerappa Naik vs The State of Karnataka

K. Govindarajulu

The accused in C.C.No.80/2001 on the file of the Civil Judge (Junior Division) and JMFC at Belthangady is the revision petitioner.

The case of the prosecution is that on 11.10.2000 at 6 p.m., the accused having driven the lorry bearing registration No.CNG 6889 rashly, negligently on Kalleri-Kakkepadavu public road within the limits of Uppinangady Police Station, within the jurisdiction of Puttur Rural Police Station, dashed against a scooterist bearing registration No.KA21 E 73, which resulted in the death of scooterist/Abubakar. Thereby, the accused is charged for the offence punishable u/s 279, 304A IPC.

The accused has pleaded for trial, the prosecution is permitted to lead evidence, P.Ws.1 to 8 are examined. Exs.P. 1 to P.9 are marked.

The learned JMFC on appreciation of evidence, believed the case of two eye witnesses examined on behalf of the prosecution, convicted the accused.

The conviction is challenged in Criminal Appeal No. 145/2004, the learned District Judge has upheld the conviction order.

The learned Advocate for the revision petitioner submits that in the facts of the case, the appreciation of the evidence by the learned trial to Appellate Judge is not in consonance with the material evidence placed on record, though, as many as eight witnesses are examined, only two witnesses have supported the prosecution case. The evidence of these two prosecution witnesses do not corroborate with the topography of the place where the incident is said to have occurred. No sketch of the S.O is found so, the finding recorded is perverse, so pray for allowing the revision.

On the other hand, the Additional State Public Prosecutor Shri P.M.Nawaz supports the finding, placing reliance on the evidence led in by the prosecution. Substantiates contending that the evidence of the two eye witnesses examined is not at all challenged, so, pray for dismissal of the revision.

The scope of revision is well settled. Though this is not the Appellate Court but this Court has a duty to find out whether the reasoning of the learned Judges of the trial and Appellate Court is justified in law.

P.W.1 examined is the loader of the lorry, P.W.2 examined is the cleaner of the very same lorry which is said to have caused the accident. Both the witnesses have turned hostile. The version suggested to the witnesses is the one found in the statement u/s 161 Cr.P.C. So, it is not a substantive evidence. Even otherwise so called supported version by them to the prosecution case has contradictory versions. So, evidence of P.Ws.1 and 2 will not help the prosecution.

P.Ws.3 and 5 are the two Investigating Officers, who took up the investigation. P.W.4 is the motor vehicle inspector. In view of the version of eye witnesses relied the evidence of official witnesses is formal in deciding the case.

P.W.6-Kasim and P.W.7 - Abubakar are examined as the eye witnesses in regard to the accident involved in the facts of the case. Both the witnesses claim that they have witnessed the incident. Both the witnesses narrate that the driver of the lorry was negligent. In view of this evidence of eye witnesses the Court is obliged to peruse the S.O. mahazar relied by the Investigating Officer as per Ex.P.5 which is sought to be proved with the evidence of P.W.8 -Ismail. It is interesting to see that Ismail narrates that the police officer recorded the mahazar keeping the papers on the bonnet of the vehicle. The accident is on 11.10.2000 at about 6 p.m. The S.O. mahazar is recorded on 12.10.2000 at about 11 a.m. that is, after 16 to 18 hours of S.O. mahazar is recorded as found from the facts of the case. There is over writing in the dates. The width of the road is 16 to 17 feet. Can the vehicle be parked without being moved remains unsubstantiated. So, the evidence of P.W.8 that the S.O. Mahazar is recorded by keeping the papers on the bonnet is exaggerated. This follows that the three witnesses namely P.Ws.6, 7 and 8 have prepared themselves to give a version contrary to the happenings.

Secondly, there is a tree on the western side according to the S.O. Mahazar, the scooter is identified to be found near the tree wherein, the distance is narrated as 15 feet from the tree, that is, the scooter is found on the northern edge of the tar road. While so, the lorry is found on the western edge that is, on the mud road, so, the evidence found in Ex.P.6 do not corroborate with the versions of P.W.6. So, the Court holds that appreciation of the evidence by the learned Magistrate, confirmed by the District Judge is not a proper appreciation of the accident involved in the facts of the case. The learned Judges are carried away with the so called oral evidence without examining the same in the light of the marked scene of occurance mahazar and the sketch. So the submission of the learned Advocate for the accused that the appreciation of the evidence is not in accordance with the topography reflected in the facts of the case is accepted. The submission of the learned Additional State Public Prosecutor is rejected. So, the accused is entitled for an order of acquittal. Accordingly, the revision is allowed. The conviction recorded in C.C.No.80/2001 by the Civil Judge (Junior Division) and JMFC at Belthangady is set aside. The fine amount awarded if any, is ordered to be returned back to the accused.