STATE OF KARNATAKA Vs. BALESAB MURTUJASAB BADIGER

JUDGEMENT

(1.) Appellant is the prosecution and the challenge is to the order dated 23rd July 2007 passed by the District Sessions Judge, Bagalkot in Criminal Appeal No.7 of 2007. By the said order, the Sessions Judge set aside the order dated 20th December 2006 passed by the JMFC, Hungund in CC No.230 of 2001. The case registered against the accused is for an offence punishable under Section 279 and 304-A of the Indian Penal Code and under Section 134 read with Section 177 of the Motor Vehicles Act, 1988. The Trial Court convicted the accused for the offence referred to above. That accused challenged the said order in appeal and the Sessions Judge allowed the appeal by setting aside the judgment of the Trial Court. Hence, the present appeal.

(2.) The learned counsel for the prosecution submitted that the Sessions Judge has committed an error by setting aside the judgment of the Trial Court despite the fact that the prosecution has proved its case by examining the eye-witnesses to the incident and also the IOs with regard to the investigation. Witnesses have been examined as PWs.1 to 13 and all the witnesses have supported the case of the prosecution. The prosecution marked documents as per Exhibits P1 to P8 and the materials have been listed as MOs.1 to 5. Respondent-accused has never examined any person on his behalf and no documents have been marked or, at the least, he has never stated anything for his defense while making 313 statement.

(3.) It is the case of the prosecution that on 4th February 2001 at 8.00 p.m. when the deceased was crossing the road, a truck came in a rash and negligent manner and committed an offence resulting in the death of the father of the complainant. Thereafter, the other eye-witnesses to the incident have followed the said vehicle in a bus and by the time they reached the police station, the vehicle was already seized, the driver was present in the police station and he was identified. The prosecution witnesses, particularly the complainant, has been examined as PW1, and PW1 in his chief and cross-examination has deposed that at the time of incident he was on the spot and he has noticed the accident committed by truck bearing No.KA.29/6999 and the driver was also identified. In the accident, both the legs of the deceased were crushed and he died on the spot. On similar lines, PW1, PW6, PW7 and PW10, who were eye-witness to the incident, deposed supporting the case of the prosecution. The IO also has been examined as PW12. Based on the evidence and materials, the Trial Court has rightly convicted the accused for the offence. The Sessions Judge, solely on the ground that the prosecution has not identified the accused, has set aside the judgment of the Trial Court. He submits that the finding and reasons given by the learned Sessions Judge is contrary to the evidence of PW1, PW6, PW7, PW10 and PW12. The learned counsel for the prosecution has relied on the judgment of this Court in the case of ISHWAR SADEPPA NANDENNAVAR v. STATE OF KARNATAKA, 2004 ILR(Kar) 1459for the proposition that it is necessary for the accused where entire case of the prosecution revolves around circumstantial evidence, if the other circumstances are proved prima facie, by the prosecution, to explain any circumstances appearing in the evidence against him. Since the same is not explained, the learned counsel prays for allowing the appeal.