Mohammad Nawaz, J. - This appeal is filed by the State, challenging the Judgment and Order of acquittal dated 05.10.2016 passed in C.C. No.2018/2014 on the file of the Court of II Additional Civil Judge and JMFC., Udupi, wherein the accused/respondent was acquitted of the offences punishable under Sections 279, 337 and 304-A of IPC.

2. I have heard Sri. M.Diwakar Maddur, learned HCGP., appearing for the appellant/State and Sri. N.K.Siddeswara, learned counsel appearing for the respondent.

3. Brief facts:

It is the case of the prosecution that on 01.08.2014, at about 10.40 a.m., the accused being the driver of a bus bearing reg. No.KA-19/B-9569, drove the same from Udupi towards Mangaluru side on NH-66 in a rash and negligent manner so as to endanger human life and when he reached near Bhudagi Petrol Bunk, situated at Bada Yermal village, Padubidri, he drove the bus to the extreme right side of the divider and dashed to a Balero jeep bearing reg. No.MH-02/BP-5620, which was stopped in order to go towards Padubidri side. As a result of which, the driver of the said Bolero jeep by name Sampath Kumar P.Shetty sustained grievous injuries and died on the way to the Government Hospital, Udupi and some of the inmates of the bus viz., P.Ws.3 to 9 sustained simple injuries.

On the basis of the first information lodged by P.W.1 as per Ex.P1, P.W.14-ASI of Padubidri Police Station registered a case in Crime No.83/2014 and issued FIR-Ex.P33 to the jurisdictional Court. P.W13-CPI took over the further investigation and after completion of the investigation, filed charge-sheet against the accused/respondent for the offence punishable under Sections 279, 337 and 304-A of IPC.

To establish the case of the prosecution, in all P.Ws.1-14 were examined before the trial Court and Exs.P1 to 33 were marked. On behalf of the accused, Exs.D1 to 3 were got marked.

The trial Court after considering the evidence and material on record, acquitted the accused of the offences punishable under Sections 279, 337 and 304-A of IPC., which Judgment and Order of acquittal is under challenge in this appeal.

4. It is the contention of the learned HCGP that the prosecution has been able to establish the case against the accused beyond all reasonable doubt and therefore, the trial Court was not justified in acquitting the accused. He submits that the trial Court has not properly appreciated the evidence of P.Ws.1 to 3, who are the eye-witnesses to the incident. He further submits that the evidence of P.Ws.1 to 3 is further supported by the sketch at Exs.P30 and also the evidence of the Investigating Officer. He submits that the accused has not rendered any explanation while he was examined under Section 313 Cr.P.C. It is his further submission that the trial Court by pointing out minor infirmities and discrepancies has erroneously acquitted the accused and therefore, he prays to reverse the findings recorded by the trial Court and to convict the accused.

Per contra, learned counsel appearing for the respondent would submit that the evidence of P.Ws.1 to 3 suffers from serious infirmities and it is elicited from their evidence that the accident has occurred when the deceased suddenly took his jeep to enter the other side of the road, which was a national highway. He submits that P.Ws.4 to 9 who are the other passengers of the bus have not supported the case of the prosecution. He submits that the trial Court having considered the entire evidence and material on record and after giving elaborate reasons, has passed the Judgment and the same does not suffer from any infirmity and therefore, he seeks to dismiss the appeal filed by the State.

5. The case of the prosecution is that on 01.08.2014, at 10.40 a.m., the accused being the driver of the bus bearing reg. No.KA-19/B-9569 drove the same from Udupi towards Mangaluru side on N.H.66 in a rash and negligent manner and near Bhudagi Petrol Bunk situated at Bada Yermal village, Padubidri, near the road divider, he drove the bus to the extreme right side of the road and dashed against the Bolero jeep bearing reg. No.MH-02/BP-5620, which was stopped in order to go towards Padubidri side. On account of which, the driver of the said Bolero jeep sustained grievous injuries and succumbed to the injuries, whereas P.Ws.3 to 9, who were the inmates of the bus sustained injuries and thereby the accused committed offences punishable under Sections 279, 337 and 304-A of IPC.

6. P.W.1 is the complainant. Ex.P1 is the complaint. It is stated in the said complaint by P.W.1 that after filling petrol to his vehicle at Yermal Petrol Bunk he was proceeding near the road divider to go to Yermal and the Bolero jeep had stopped near the divider so as to go towards Padubidri. At that time, Vijayalakshmi Express bus, which was coming from Udupi and moving towards Mangaluru, hit against the said jeep. The deceased was stuck inside the jeep and some inmates of the bus had sustained injuries. The deceased was shifted in a vehicle to the hospital, wherein he was declared brought dead. He has noted the registration number of the jeep as well as the bus.

7. The evidence of P.W.1 discloses that the deceased had stopped his jeep near the road divider by putting signal lights so as to go to the other side of the road. At that time, the bus came from Udupi side, which was moving towards Mangaluru side and the said bus dashed against the Bolero jeep. The vehicle was dragged to a distance of about 15 ft. and then stopped. He has stated that the accused was driving the said bus at the time of the accident. He is also a witness to the spot mahazar-Ex.P2, which was conducted on the next day.

In the cross-examination, he has stated that at the spot of the accident, the width of the road divider had been reduced to enable the vehicles to take a turn. He has stated that at the time of taking a turn, the deceased had brought his vehicle to the road leading to Udupi to Mangaluru and his vehicle was at a distance of 7 ft. from the divider. He has denied the suggestion that the accident occurred when the deceased suddenly tried to turn his vehicle towards the road leading to Udupi.

8. P.W.2 is another eye-witness to the incident. He has stated that he was returning to his house situated at Padubidri in a car. At that time, Vijayalakshmi Express bus overtook his car and at a distance of 200 mtrs. it dashed against the Bolero jeep which was stopped near the road divider. On account of which the Bolero vehicle was dragged to a distance of 50 ft. It was about 10.45 a.m. The driver of the Bolero vehicle was known to him. He has identified the accused as the driver who was driving the said bus.

In the cross-examination, he has stated that when he reached the spot, few persons were trying to remove the deceased from the vehicle. He was at the spot for about 10 minutes. Thereafter, he went to his house. It is elicited from his evidence that when he saw Bolero vehicle, it had taken a turn and at the time, it was 1 ft. ahead.

9. P.W.3 is a passenger, who was traveling in the bus. He has deposed that he was sitting in the bus in the front third seat. The accused was driving the bus. The bus had left Udupi and it was going to Mangaluru. He had traveled for about 15 kms. Near Yermal Petrol Bunk the bus was going in a high speed. At that time, the Bolero vehicle was coming in front near the road divider and the bus hit against the said vehicle. On account of the accident, both the vehicles moved for some distance and stopped. He has stated that the accident was on account of the fault of the driver of the bus in question.

In the cross-examination, he has stated that it was raining at the time of accident. The Bolero vehicle was trying to take turn near the divider so as to go to Mangaluru and it was moving towards the road on which the bus was also moving. To the suggestion put by the defence that the accident occurred on account of the Bolero vehicle suddenly taking a turn towards the road on which the bus was traveling, he has stated that it could be possible. He has further stated that he cannot say on account of whose fault the accident has occurred.

10. P.Ws.4 to 10 are the passengers traveling in the bus. Except P.W.10, all others are injured witnesses. However, all the said witnesses have turned hostile and they have not supported the prosecution case. They have denied the suggestion put by the Public Prosecutor that the accident was on account of the rash and negligent driving by the driver of the bus in question.

11. P.W.11 is the conductor of the bus. He has not supported the case of prosecution. P.W.12 is the panch-witness to the spot mahazar-Ex.P2 and also the witness to the seizure mahazar marked at Ex.P19. Exs.P3 to 7 are the photographs marked through the said witnesses. The defence got marked Exs.D1 and D2 and the photographs of the spot as well as Exs.D3-C.D. P.W.13 is the Investigating Officer, who has conducted the investigation and filed charge-sheet. P.W.14 is the ASI., who registered the case.

12. From the evidence on record, it is clearly established that the accused was the driver of the offending bus in question and he was driving the said bus at the time of the accident. Even otherwise, there is no dispute with regard to the same.

13. The defence of the accused as per the suggestion put to the witnesses was that when the Bolero jeep driven by the deceased was suddenly taking a U turn near the road divider and when it came to the other side of the road on which the bus was moving, the accident had taken place. Though P.Ws.4 to 10 are the passengers traveling in the bus in question, which was being driven by the accused, the said witnesses have not supported the case of prosecution. On the other hand, the evidence of P.Ws.4 to 6 goes to show that the accident occurred due to the fault of the deceased, while he suddenly brought his vehicle to the other side of the road by taking a U turn. The evidence of these witnesses further goes to show that the bus was being driven in a normal speed.

14. P.W.11, the conductor of the bus has stated that near Uchila in Udupi, the jeep came in front of the bus and the accident occurred when the said jeep suddenly came in front of the bus. The driver of the bus was driving the bus at a speed of 40 to 45 kms.

15. The sketch is marked as Exs.P30. The perusal of the sketch goes to show that the accident has occurred near the road divider, where there is a gap so as to take a U turn. From the evidence of P.Ws1 to 3 and the material on record it is clearly established that the accident has occurred when the Bolero jeep was trying to take a U turn so as to go to Padubidri, which was on Udupi-Mangaluru Road. The bus was coming from Udupi and moving towards Mangaluru side. It is a National Highway. Though P.W.1 has stated that the deceased had put the indicator to the jeep so as to take U turn, However, none of the other witnesses have stated the same. In the first information report the same is not stated. It is elicited from the cross-examination of P.W.1 that the accident has occurred when the deceased was trying to take U turn near the road divider on Udupi-Mangaluru road and the deceased had brought the vehicle on the said road. Even in the cross-examination of P.W.3 it is elicited that the accident could have occurred when the Bolero vehicle suddenly turned to the road on which the bus was traveling. The Investigating Officer/P.W.13 has admitted in cross-examination that only after the vehicle coming in the opposite direction, moves ahead, one should take a turn.

16. From the aforesaid evidence and the material on record, it can be clearly gathered that the accident has occurred near the road divider where there is a gap and when the deceased suddenly tried to take a U turn to enter the other side of the road on which the bus was moving from Udupi to Mangaluru. The deceased who was driving the Bolero Vehicle should have been careful enough to see as to whether there was any vehicle coming in the opposite direction before taking a U turn and only after that he should have taken a U turn. In that view of the matter, it cannot be said that the prosecution has established the rash or negligent act of the accused in causing the accident.

This is an appeal against the Judgment and Order of acquittal passed by the trial Court. Having reappreciated the entire evidence and material on record, I do not see any justifiable reasons to interfere with the Judgment and Order of acquittal passed by the trial Court. Accordingly, I pass the following:

ORDER

The appeal is dismissed.