C H VASAPPA KULAL Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) HEARD the learned counsel for the petitioner and the learned Government Pleader.

(2.) THE petitioner was the accused before the Trial Court. It was the case of the prosecution that on 8.6.2004, at about 5.00 p.m., on Kadur-Mangalore road, near Lakshmipura Village, within the jurisdiction of the Kadur Police Station, the lorry bearing Registration No.KA-19/A-9491, was driven by the petitioner from Chikmagalur towards Kadur in a rash and negligent manner, as a result of which the lorry had dashed against a child, Divya, who was the daughter of CW- 7 and she had succumbed to injuries. It was further alleged that the petitioner had absconded from the scene without intimating the nearest police station, or providing first aid or attempting to save the life of the child. Therefore, it was alleged that the petitioner had committed an offence punishable under Sections 279 and 304-A of the Indian Penal Code, 1860 ((hereinafter referred to as 'IPC' for brevity) and under Section 134 (a) and (b) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the MV Act' for brevity). A case was therefore registered in Crime No.110/2004 and after completion of investigation, a charge-sheet was filed. The accused pleaded not guilty and claimed to be tried. The prosecution therefore examined 13 witnesses and had marked Exhibits P1 to P11 and MO-1.On consideration of the material evidence and on hearing the counsel for the parties, the following points were framed for consideration by the Trial Court:

(3.) FROM a careful examination of the record and the rival contentions of the parties, it would be extremely difficult for a court of law to re-enact the sequence of events with reference to material available on record, notwithstanding the account of several eye- witnesses. As pointed out by the learned counsel for the petitioner, there were five eye-witnesses who had tendered evidence in this case. Four of them were people of the locality to which the deceased child belonged. Naturally, their sympathy would be towards the family of the child and it would also be possible to accept that they would have been prejudiced against the petitioner. The consistent evidence of these witnesses was to the effect that the vehicle was moving at the speed of 90 kms. per hour. This is difficult to accept, for the reason that, it was a laden lorry and was moving through an area where there were other vehicles and people. Unfortunately, the sketch that was prepared and made part of the record of the spot, is not graphic in its detail. In that, it does not indicate the place where the van from which the child had alighted, was stationed. This was a necessary detail, which has been omitted from the record. This was crucial for the defence of the petitioner to be sustained and in the absence of that detail, the petitioner is certainly placed at a disadvantage to bring home the defence that the child had alighted from the van and had suddenly crossed the road when the lorry was only a few feet away from her and it is at that circumstance that though the petitioner had made his best efforts, he was unable to stop the lorry short of knocking the child down. The further evidence if the lorry had been moving at 90 kms. per hour and if the child had crossed the road and if there was an effort as it was in this particular case, to stop the vehicle suddenly, it would have left behind skid marks, at least for a few feet if not centimetres. There is no such evidence forthcoming of the vehicle having been stopped suddenly and having veered to either side of the road and having left skid marks. The fact that the impact of the vehicle with the child's body has occurred on the right side of the road, off the middle, does not by itself establish that there was negligence on the part of the petitioner. It is quite possible that there were vehicles parked on the left side of the road, which would have necessitated the petitioner to manoeuvre the lorry to the right side in order to overtake and in the process, if the child had crossed from between the vehicles on to the road, the accident was inevitable. Therefore, this is a second view that can be taken of the manner in which the sequence of events has occurred. To characterize the defence put up as being an imagination of the petitioner, is not fair. In the absence of complete details of the spot at which the accident has occurred, the other vehicles that were parked if they were indeed parked there, and since the school van from which the child had alighted, was certainly parked on the road, it was necessary to have had an idea of its location with reference to the sketch. That is not forthcoming. Nor has any witness spoken about the details to that effect.