KRISHNAMURTHY Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) This petition is filed challenging the Judgment dtd. 31/8/2006 passed by the Judicial Magistrate First class (III Court), Mangalore (henceforth referred to as the 'Trial Court' for brevity) in C.C.No.1136/2005, by which, the petitioner was convicted for the offences punishable under Ss. 279 , 304A of the Indian Penal Code, 1860 (for short, 'the IPC ') and sentenced to undergo rigorous imprisonment for one year along with fine of Rs.5,000.00. The petitioner has also challenged the Judgment passed by the II Additional District and Session Judge, Dakshina Kannada, Mangalore, (for short, 'the Appellate Court') dtd. 9/1/2013, in Criminal Appeal No.292/2006, by which, the Judgment of conviction and sentence passed by the Trial Court was confirmed.

(2.) The case of the prosecution was that CW1, furnished information at Wenlock Hospital on 13/1/2005, he and the deceased Thimmanna were walking on Kadri Park road on the left side and at about 1.15 p.m., a private bus bearing registration No.KA-19A-8907 (henceforth referred to as 'the offending vehicle') being driven in a rash and negligent manner dashed against the deceased Thimmanna. As a result, he was thrown away and he suffered serious injuries on the head and the right shoulder and other parts of the right side of his body and he lost consciousness. Immediately, the Police emergency vehicle reached the spot and shifted the injured to Wenlock hospital where he was declared brought dead. CW.1 is the brother-in-law of the deceased and his statement was recorded at the hospital, which was placed before CW.15, who registered crime No.8/2005. CW.17 registered an FIR against the accused for the offences punishable under Ss. 279 and 304A of IPC and placed the hospital memo and the file before CW.18 - Investigating officer. The investigating officer conducted an inquest and also recorded a spot mahazar. He also recorded the further statement of CW.1, the statements of CW.2, CW.3 and CW.4, and prepared a sketch of the spot of the accident. He seized the bus on the same day, which was produced by CW.12, the owner of the bus. The vehicle was subject to inspection by the motor vehicle inspector whose report was received. The post mortem report was also received. The accused appeared before the Police on 15/1/2005 and he was arrested and released. Later, a chargesheet was filed against the accused for the offences punishable under Ss. 279 , 304A of IPC. The Trial Court took cognizance and issued process to the accused who appeared before the Trial Court. The substance of accusation was read over to the accused who denied the same and claimed to be tried.

(3.) The prosecution examined a witness to the spot mahazar as PW1, who turned hostile. The informant was examined as PW.2, who supported the prosecution. The driver of the police emergency vehicle was examined as PW.3, who identified the accused. A juice vendor and an eye witness to the accident, was examined as PW.4 and he supported the prosecution. Another Bhelpuri vendor who owned a shop near park gate was examined as PW.5, who turned hostile and did not identify his statement and his further statement, but identified his signature on the spot panchanama. PW.6 was the conductor of the bus, who turned hostile and denied the statement recorded under Sec. 161 of the Code of Criminal Procedure (for short, 'the Cr.P.C .') before the police. PW.7 was the IMV Inspector who deposed that the accident was not due to any mechanical failure of the offending vehicle. PW.8 was the wife of the deceased Thimmanna and a hearsay witness. PW.9 was the witness to the spot mahazar who turned hostile. PW.10 was the owner of the offending vehicle and he also turned hostile, but admitted that the accused used to drive the bus occasionally. PW.11 was the witness to the seizure mahazar of the bus and he turned hostile. PW.12 was the head constable who registered FIR in Crime No.8/2005 while PW.13 was the investigating officer who conducted the inquest, drew a spot mahazar, recorded the further statement of CW.1 and the statements of CWs.2, 3 and 4 and prepared a sketch of the spot. He was the one who seized the offending vehicle, secured the report of the IMV inspector and arrested the accused and after obtaining the post mortem report, submitted a charge sheet.