CAV JUDGMENT

1. This appeal by the appellant is against the judgment dated 23rd February 2013 passed in Criminal Appeal No.161 of 2009 by the II Additional District & Sessions Judge, Dakshina Kannada, Mangalore (for short hereinafter referred to as the "first appellate court"), whereby, the judgment of acquittal dated 07th March 2009 passed in CC No.967 of 2006 by Civil Judge (Sr. Dn.) & JMFC Bantwal (for short hereinafter referred to as the "trial Court”), came to be set aside.

2. For the sake of convenience, the parties herein are referred to as per their ranks before the trial court.

3. Brief facts leading to this appeal are that the Vitla Police submitted the charge-sheet against the accused for the offence punishable under Sections 279, 337, 338 and 304-A of Indian Penal Code. It is alleged by the prosecution that on 16th June 2006, Anil Pinto along with his relatives was proceeding in a car bearing registration No.KA-21/M.2190 from Bondel to Uppinangadi. The car was driven by William Lobo with Robert Pardo and Gerald were also travelling in it. When the car reached near Surikumerupet in Mani Village of Bantwal Taluk, a bus named “Nandani,” bearing registration No. KA-19/AD-9099, driven at high speed and in a rash and negligent manner, attempted to overtake a lorry. While doing so, the bus came onto the wrong side of the road and collided with the car. As a result of the accident, the occupants of the car sustained injuries. Robert sustained grievous head injury and succumbed to the injuries at the spot. At the time of the accident, one Keshava was driving the bus. Immediately thereafter, injured were shifted to Mangala Nursing Home, Mangalore, in an ambulance. After investigation, the Investigating Officer submitted a charge-sheet for the commission of the alleged offences.

4. After filing charge-sheet, cognizance was taken and summons were issued to the accused. In response to summons, accused appeared before the trial court and was enlarged bail. Substance of plea was recorded; accused pleaded not guilty and claimed to be tried. To prove its case, prosecution has examined nine witnesses as PWs1 to 9 and got 15 documents marked as Exhibits P1 to P15. On closure of prosecution side evidence, statement of the accused under section 313 of Code of Criminal Procedure was recorded. Accused has totally denied evidence of prosecution witnesses, but has not chosen to lead any defence evidence on his behalf. Having heard on both sides, the trial court acquitted the accused. Being aggrieved by the judgment of acquittal, State has preferred appeal before the first appellate court. The first appellate court allowed the appeal by setting aside the judgment of acquittal passed by the trial court. Accused was convicted for the offence punishable under Sections 279, 337, 338 and 304A of Indian Penal Code and was sentenced to undergo simple imprisonment for a period of 1 month and to pay fine of Rs.500/- for the offence punishable under Section 279 of Indian Penal Code, and further sentenced to undergo simple imprisonment for a period of one month and to pay fine of Rs.500/- for offence punishable under Section 337 of Indian Penal Code. The accused was also sentenced to undergo simple imprisonment for a period of six months and to pay fine of Rs.1,000/- for offence punishable under Section 338 of Indian Penal Code and was further sentenced to undergo simple imprisonment for period of one year and to pay fine of Rs.2,000/- for the offence punishable under Section 304A of Indian Penal Code. Being aggrieved by the judgment of conviction and the order on sentence passed by the first appellate court, the Appellant-accused has preferred this appeal.

5. The appeal was filed by a private advocate who was subsequently elevated as the Judge of this court, hence court notice was issued to the appellant. Despite service of notice, the appellant did not appear before the Court. Therefore, Sri Sabappa B. Malegul, learned Advocate, was appointed as Amicus C