STATE OF KARNATAKA Vs. MADIVALAPPA FAKIRAPPA KODLIWAD

JUDGEMENT

(1.) THIS appeal is by the state, assailing the judgment of acquittal of the accused in C. C. No. 403/1996, dated 20-2-1998 for the offences under Sections 279, 337, 338, 304-A of IPC r/w. Section 134 and 187 of M. V. Act on the file of the learned J. M. F. C. III Court, Belgaum.

(2.) THE case of the prosecution in brief is as follows : on 6-5-1996 at about 4. 15 p. m. accused madivalappa Fakirappa Kodliwad being the driver of the passenger tempo bearing regn. No. KA 24-1090 was proceeding towards bagewadl. On account of his rash and negligent driving of the tempo. Near Khadri Cinema Talkies of Bagewadi village limits dashed Ratnabai Krishnaji Karandi-PW. 19 from behind, who was proceeding on the footpath. The vehicle further proceeded towards its right side and toppled. As a result, Shivaputra Shivanagouda and another ramesh Gyanappa Dandavate (cleaner of the tempo) died and also resulting injuries to 13 passengers. The injured P. W. 1-Mohammed Rafiq Abdulgani Godawad lodged a complaint as per Ex. Pl with Bagewadi police. The A. S. I. of Bagewadi Police station P. W. 26-Mahantayya Iswarayya muppinamath registered a case in Crime No. 74/1996 for the offences under Sections 279, 337, 338, 304-A of IPC and under Section 134 r/w. Section 187 of M. V. Act against the driver of the tempo. The Circle inspector P. W. 27-Basavantappa Mallappa hoogar visited the place of the accident, prepared the spot mahazar-Ex. P3. Whereas, the Inquest mahazars Exs. P2 and P4 were prepared by the sub-inspector. The clothes of the deceased were ceased under separate mahazar. The injured persons were sent to the District Hospital, Belgaum, for treatment. He secured the wound certificate as well as the post-mortem report of 2 deceased persons as per Exs. P14 and P16, collected the M. V. I. report- Ex. 15, arrested the accused and released on bail. After completion of the investigation, filed the charge-sheet. The presence of the accused was secured, recorded his plea for the offences under Sections 279, 337, 338, 304-A of IPC and under Section 134 r/w. Section 187 of M. V. Act. He pleaded not guilty and claimed to be tried. The prosecution in all examined P. Ws. 1 to 27, marked Exs. P1 to P33 and produced M. Os. 1 to 6. The statement of the accused was recorded under Section 313 of crpc. The defence is one of total denial. The learned J. M. F. C. for the reasons recorded in his Judgment acquitted the accused in respect of all the offences. It is this Judgment of acquittal, which is questioned in the present appeal.

(3.) LEARNED High Court Government pleader Sri. Reddy submitted that the reasoning of the learned J. M. F. C. in acquitting the accused suffers from various infirmities. The testimony of the prosecution witnesses shows the manner in which the accident took place. Whereas, the vehicle dashed against a pedestrian proceeding on the footpath, in front of Khadri Cinema talkies. The vehicle further proceeded and toppled. Thereby, the trial Court has lost sight of the above facts. Spot Mahazar Ex. P3 reveals that the width of the road is 24 ft, with footpath of 6 ft. on either side and at the place of the accident little down gradient towards Bagewadi with little curve and a board has also put up indicating to "go slow". With all the above facts on record, the learned J. M. F. C. without properly appreciating the evidence of the witnesses erred in acquitting the accused. Further submitted that the accident is not on account of mechanical defect. It is only on account of rash and negligent driving of the tempo by the accused dashed the lady resulting in the death of 2 persons and injuries to 13 passengers. Further submitted that when the act of the driver itself is dangerous, which is in rash and negligent manner, the acquittal of the accused is a perverse Judgment. Therefore, prayed to set aside the judgment of acquittal by allowing the appeal and convicting for the charges levelled.