Bangalore District Court
Bsk Tr Police Sation vs Praveen Kumar on 22 August, 2024
IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS
(TRAFFIC COURT - IV) AT BENGALURU
PRESENT: SRI GAGAN M.R. B.A.L LLB
JMFC (Traffic Court - IV),
BENGALURU
DATED : THIS THE 22ND DAY OF AUGUST 2024
C.C. No.3519/2018
COMPLAINANT: State by Banashankari Traffic Police Station,
Bangalore
(Represented by: APP)
VS.
ACCUSED: 1) Sri Praveen Kumar,
S/o. Mahadevaswamy,
Age: 22 years,
R/at Goragundi village,
Kaggere Post, Kasaba Hobli,
K.R. Nagara Taluk,
Mandya
(Represented by: Sri Narayanaswamy Adv.)
2) Sri Mahadevaswamy R.,
S/o. Rajaiah,
Age: 40 years,
R/at No.70/2, 4th cross,
2nd main road, Deepanjali Nagara,
Bangalore
(Represented by: Sri Kamaraju Adv.)
2
C.C.No.3519/2018
1. Date of commission of offence: 31-12-2017
2. Offences alleged against accused: U/s.279, 337 338, and
304(A) of IPC,Sec. Sec.3(1)
R/w.181 and Sec.5
R/w.180 of M.V.Act.
3. Date of recording of evidence: 24-09-2018
4. Date of closing evidence: 26-02-2024
5. Date of judgment: 22-08-2024
***
JUDGEMENT
The Police Inspector of Banashankari Traffic Police Station has filed the charge sheet against the accused No.1 for the offences punishable U/s.279, 337, 338 and 304(A) of IPC, Sec.3(1) R/w.181 of M.V.Act and against the accused No.2 for the offences punishable U/s.5 R/w.180 of M.V.Act.
2. It is the case of the prosecution that on 31-12-2017 at about 7.00 a.m. the 1st accused being the driver of Maruthi Swift Dzire Cab bearing registration No.KA-41/C-0429 drove the same on Kanakapura main road, near Yediyur from north to south direction in a rash and negligent manner so as to endanger human life and all of a sudden without intimation he has taken right turn towards K.R. Road and he dashed to Bajaj Pulsar 3 C.C.No.3519/2018 motor cycle bearing registration No.KA-01/EP-3123 which was proceeding on Kanakapura main road from south to north and it further dashed to another motor cycle bearing registration No.KA-05JY-8096. Due to the impact Imran Khan sustained grievous injuries and later he succumbed to death on his way to the hospital, the pillion rider C.W.5 sustained grievous injuries. the rider of the another vehicle C.W.1 also sustained simple injuries. It is further alleged that the accused No.1 was not having badge to drive the cab on the day of accident. Further the 2nd accused being the owner of the Maruthi Swift Dzire Cab bearing registration No.KA-41/C-0429 had permitted the 1st accused to drive the said vehicle though the accused No.1 was not having badge to drive the cab on the day of accident, thereby the 1st accused is alleged to have committed the offences punishable U/s.279, 337, 338 and 304(A) of IPC, Sec.3(1) R/w.181 of M.V.Act and the 2nd accused is alleged to have committed the offence punishable U/s.5 R/w.180 of M.V.Act.
3. Upon taking cognizance, case came to be registered against the accused No.1 for the offences punishable U/s.279, 337, 338 and 304(A)of IPC, Sec.3(1) R/w.181 of M.V.Act and accused No.2 for the offence punishable under Sec.5 R/w.180 of M.V.Act. The accused 4 C.C.No.3519/2018 No.1 and 2 appeared before the court through their counsel and got enlarged on bail. Charge sheet copies furnished to the accused persons and thereby provision U/s.207 of Cr.P.C. duly complied with.
4. Plea came to be framed for the offences U/s.279, 337, 338 and 304(A) of IPC, Sec.3(1) R/w.181 of M.V.Act and Sec.5 R/w.180 of M.V.Act. for which accused No.1 and 2 have pleaded not guilty claimed to be tried.
5. During the course of trial, the prosecution has examined P.W.1 to 5 and got marked documents as per Ex.P.1 to Ex.P.11. On completion of prosecution side evidence, the statement of accused U/s.313 of Cr.P.C. was recorded and the accused No.1 and 2 denied all the incriminating evidence appearing against them and did not choose to lead any defence evidence.
6. Heard both the sides. The learned prosecutor submits that in the instant case the whereabouts of the eye witness and the complainant was not able to trace out. Due to passage of time and non availability of address. The prosecution has examined two eye witnesses and both of them supported their case and two investigating officers were also examined , they have supported the case. Accordingly he prays for conviction.
5C.C.No.3519/2018 The counsel for the accused No.1 contended that in the instant case the prosecution has not examined the complainant and the victim which is fatal to their case. The prosecution examined one eye witness and he has not stated the details of the incident, vehicle numbers and the date of mahazar and other aspects with regard to same. The prosecutor has nto cross examined the eye witness. The evidence of the P.W.2 is incomplete and liabile to be rejected. With regard to other eye witness he contended that with regard to his job and from which side he has came there is a material contradiction in his 161 statement and the deposition before the court. He clearly admits that he did not went to see the injured since he is a care taker of the toilet he has a fear of police and supported the prosecution case. He deposed about visiting police station multiple times, but no such thing is found in his 161 statement and several material omission were also noticed in his evidence. Hence the same cannot be relied. Since investigating officers deposed about their duty that can not be relied. Accused No.2 contended that prosecution has contended that accused No.2 has committed the offence punishable U/s.5 R/w.180 of IMV Act which speaks about giving vehicle to person who does not possess valid driving license. The P.W.5 in his cross- examination clearly admits accused No.1 was possessing 6 C.C.No.3519/2018 the valid driving license and they have produced the same before him, if that is taken into consideration the contention of the prosecution falls flatter. On these grounds they prays for acquittal of the accused persons.
7. The points that arise for my determination are as under:
1. Whether the prosecution proves beyond all reasonable doubt that on 31-12-2017 at about 7.00 a.m. the 1st accused being the driver of Maruthi Swift Dzire Cab bearing registration No.KA-41/C-0429 drove the same on Kanakapura main road, near Yediyur from north to south direction in a rash and negligent manner so as to endanger human life, thereby the 1st accused committed offence punishable U/s.279 of IPC.
2. Whether the prosecution further proves that on the said date, time and place the accused being the driver of the said vehicle. While so driving his vehicle he dashed to Bajaj Pulsar motor cycle bearing registration No.KA-01/EP-3123 which was proceeding on Kanakapura main road from south to north and it further dashed to another motor cycle bearing registration No.KA-05JY-8096. Due to the impact Imran Khan sustained grievous injuries and later he succumbed to death on his way to the hospital, the pillion rider C.W.5 sustained grievous injuries. the rider of the another vehicle C.W.1 also sustained simple injuries, thereby the 1st accused committed an offence punishable U/s.337, 338 and 304(A) of IPC.7
C.C.No.3519/2018
3. Whether the prosecution further proves that on the said date, time and place the 1st accused was not having valid driving licence on the day of the accident, thereby the 1st accused has committed an offence punishable U/s.3(1) R/w.181 of M.V.Act?
4. Whether the prosecution further proves that on the said date, time and place the 2nd accused being the owner of Maruthi Swift Dzire Cab bearing registration No.KA-41/C-0429 had permitted the 1st accused to drive the said vehicle who was not having badge on the day of accident, thereby the 2nd accused has committed an offence punishable U/s.5 R/w.180 of M.V.Act?
5. What order?
8. My findings on the above said points are as under:
1. POINT NO.1: IN THE NEGATIVE
2. POINT NO.2: IN THE NEGATIVE
3. POINT NO.3: IN THE NEGATIVE
4. POINT NO.4: IN THE NEGATIVE
5. POINT NO.5: AS PER FINAL ORDER For the following REASONS
9. POINT No.1 and 2: These points are inter related, hence they are taken together for common discussion.
10. It is the case of the prosecution that on 31-12-2017 at about 7.00 a.m. the 1st accused being the 8 C.C.No.3519/2018 driver of Maruthi Swift Dzire Cab bearing registration No.KA-41/C-0429 drove the same on Kanakapura main road, near Yediyur from north to south direction in a rash and negligent manner so as to endanger human life and all of a sudden without intimation he has taken right turn towards K.R. Road and he dashed to Bajaj Pulsar motor cycle bearing registration No.KA-01/EP-3123 which was proceeding on Kanakapura main road from south to north and it further dashed to another motor cycle bearing registration No.KA-05JY-8096. Due to the impact Imran Khan sustained grievous injuries and later he succumbed to death on his way to the hospital, the pillion rider C.W.5 sustained grievous injuries. the rider of the another vehicle C.W.1 also sustained simple injuries. It is further alleged that the accused No.1 was not having badge to drive the cab on the day of accident. Further the 2nd accused being the owner of the Maruthi Swift Dzire Cab bearing registration No.KA-41/C-0429 had permitted the 1st accused to drive the said vehicle though the accused No.1 was not having badge to drive the cab on the day of accident, thereby the 1st accused is alleged to have committed the offences punishable U/s.279, 337, 338 and 304(A) of IPC, Sec.3(1) R/w.181 of M.V.Act and the 2nd accused is alleged to have committed the offence punishable U/s.5 R/w.180 of M.V.Act.
9C.C.No.3519/2018
11. In order to prove its case the prosecution examined 5 witnesses as P.W.1 to P.W.5 and marked 11 documents as Ex.P.1 to Ex.P.11.
12. C.W.2/ Zahir Ahammad is examined as P.W.1 who is the mahazar witness of this case. He deposed that on 31-12-2017 at about 04.00 p.m. police conducted mahazar in his presence regarding the accident. He has singed the said mahazar in the spot. He knows the contents of the mahazar. He deposed police seized the two vehicles involved in the accident in his presence. The said witness was not cross-examined by the accused counsel.
13. C.W.3/ Nadeem Pasha is examined as P.W.2 who is the eye witness and mahazar witness of this case. He deposed that on 31-12-2017 at about 7.00 a.m. while he was proceeding from Banashnkari in his auto, near Yediyur circle one car suddenly took a right turn in a rash and negligent manner and dashed to motor cycle. Due to the impact the rider of the motor cycle sustained grievous injuries and other rider sustained simple injuries. Later injured was shifted to NIMHANS Hospital. The accident has taken place due to the negligent act of the car driver. The pillion rider succumbed to death in 10 C.C.No.3519/2018 the accident. He deposed that police conducted mahazar regarding the accident and he has signed the said mahazar between 3.00 to 4.00 p.m. He knows the contents of the mahazar. Police seized the vehicles involved in the accident in his presence.
14. C.W.4/ Annappa is examined as P.W.3 who is the eye witness of this case. He deposed that in December 2017 he has wear Ayyappamaale. He visited the temple and coming back to home at around 6.30-7.00 a.m. when he came near Shulab shouchalay, he went towards Hasanamba Bakery to have coffee, at that time one swift car came from Yediyur lake side in a high speed and all of a sudden take right side. At the same time two bikes were proceeding in Kanakpur road and car dashed to both the bikes, the riders in the bike sustained injuries, he went near to see them, at that time since you are wearing holly mala you should not see this, hence he did not went to see them. Later police came and taken them to hospital. He got information that one person died and identified the car driver before the court. He deposed the number of the car and he did not depose the two wheeler number. On the same day at around 10.30 a.m. police came to spot he deposed about the accident and they obtained his signature. He identified the signature 11 C.C.No.3519/2018 over the spot mahazar. The learned APP treated the witness as partly hostile and cross-examined her with the permission of the court. During his cross-examination by APP he admits the suggestion with regard to date, bike number and the names of the injured. He admits the suggestion with regard to time of the mahazar.
15. C.W.14/ Bhairabhovi is examined as P.W.4 who is the 1st Investigating Officer of this case. He deposed that on 31-12-2017 while he was discharging his duty as SHO, C.W.1 came to station and filed written complaint, on the basis of said complaint he registered the case in Crime No.326/17 against the accused. As the said case is a fatal case he handed over the case file to C.W.15 for further investigation. During his cross- examination he denied the suggestions of the accused counsel.
16. C.W.15/ Janardhan is examined as P.W.5 who is the 2nd Investigating Officer of this case. He deposed that on 31-12-2017 he received the case file from C.W.14 and conducted further investigation. He deposed that after the death of the injured, he has suggested to take the dead body to KIMS hospital mortuary. On the same day he conducted inquest mahazar between 12.30 to 2.30 p.m. in the presence of C.W.6 to 8. After 12 C.C.No.3519/2018 postmortem he has handed over the dead body to concerned persons. On the same day he visited accident spot and conducted spot mahazar between 3.30 to 4.30 in the presence of C.W.2 to 4 and prepared one rough sketch. He issued Sec.133 notice to the owner of the vehicle involved in the accident and received reply to the said notice. On the same day he recorded the statement of C.W.3 and 4. On the same day accused voluntarily appeared before him and he recorded the further statement of C.W.4 regarding the accused appeared before police station. He arrested the accused and released him on station bail. He sent a requisition letter to concerned motor vehicle inspector. After examining the vehicles he obtained the indemnity bond and released the vehicle in favour of the owner. On 18-01-2018 he collected the postmortem report. On 22-01-2018 he collected the wound certificate. On 03-01-2018 he collected the motor vehicle inspection report. On 10-02- 2018 upon checking the file he noticed that the 2 nd accused was the owner of the vehicle and he has permitted to drive the vehicle without document, so he has made him the 2nd accused. After completion of investigation he has submitted charge sheet against the accused and forwarded to court.
13C.C.No.3519/2018 During his cross-examination he admits the second accused furnish the driving license and insurance of the vehicle. He admits the 1st accused has driving license and it is a light motor vehicle. He further deposed in order to board yellow board vehicle badge is necessary. He admits the driving license is in existence. He denied the suggestions of the accused counsel.
17. Out of the documents marked for prosecution Ex.P.1 is the spot mahazar, Ex.P.2 is the Complaint, Ex.P.3 is the FIR, Ex.P.4 is the inquest mahazar, Ex.P.5 is the rough sketch, Ex.P.6 is the 133 notice, Ex.P.7 is the reply to notice, Ex.P.8 is the wound certificate, Ex.P.9 is the wound certificate, Ex.P.10 is the IMV Report and Ex.P.11 is the P.M. Report.
18. In the instant case the prosecution is alleging that the accused being the driver of the car, drove the same in a rash and negligent manner and caused accident due to which the victim succumbed to death and prosecution contended that accused committed the offences punishable U/s.279 and 304(A) of IPC. Section 279 IPC deals with rash and negligent driving of any vehicle or riding on a public way in a rash and negligent manner so as to endanger human life or likely to cause hurt or injury to any person. In order to 14 C.C.No.3519/2018 constitute an offence U/s.279 of IPC, it must be established that the accused was driving the vehicle on a public way in rash and negligent manner to endanger human life or to likely cause to hurt or injury to any other person. For the purpose of section 279 rash and negligent may be described as criminal rashness or criminal negligence. It must be more than mere carelessness of error of judgment. The essential ingredients of section 279 are: (1) rash and negligent driving or riding on a public way, (ii) The act must be such as to endanger human life or likely to cause hurt or injury to any person.
19. In order to constitute offence U/s.304(a) of IPC the prosecution must establish the essential ingredients of Sec.304(A) of IPC which are as follows: (I) The death of the person must be in question (ii) The death must have caused by the accused; and (iii) The act of the accused was rash or negligent and it did not amount to culpable homicide.
20. In the instant case the prosecution has examined five witnesses. Among the witnesses examined on the behalf of prosecution P.W.1 is the mahazar witness, P.W.2 and 3 are eye witnesses, P.W.4 and 5 are 15 C.C.No.3519/2018 the investigating officers. P.W.1 deposed that on 31-12- 2017 police conducted mahazar and obtained his signature on mahazar at 4.00 p.m. and further deposed police seized two vehicles. The said witness is helpful for prosecution in proving the Ex.P.1 which is the spot mahazar. According to P.W.1 police seized two vehicles. Upon perusal of Ex.P.1 police did not mentioned about seizing of any vehicles, they mention about existence of three vehicles, 2 two wheelers and one cab. Whether the police seized the cab or the two wheeler from that place is not explained by the IO. The IO did not mentioned about seizing of the vehicles from the spot. It raises doubt about reliability of the said witness.
21. In order to prove the aspect of rash and negligence on the part of the accused the prosecution has examined two eye witnesses i.e., P.W.2 and 3. the counsel for the accused contended that there is no mention about either negligence or rashness, they simply stated negligently taken right turn and dashed to two wheeler. Upon perusal of the evidence there is no mention of any vehicle numbers or the name of the deceased, injured or the accused. As per the rules if the omission is noticed the prosecution has to treat the witness as to hostile to that aspect and cross examine them. In the case on hand 16 C.C.No.3519/2018 no such attempt is made. The said witness was not cross examined. The witness deposed that the pillion rider succumbed to death. In the case on hand no pillion rider has succumbed to death and it is the rider of the 1 st vehicle which met with accident succumbed to death. He also deposed about seizure of vehicles after doing panchanama. As discussed earlier the same is not deposed by IO.
22. The prosecution further examined P.W.3 claiming as eye witness. The said witness deposed that on the said day he was coming from temple and he was proceeding towards bakery to have coffee at that time the car came from Yediyur lake side and proceeded towards industry side in a rash and negligent manner and dashed to two wheelers. He clearly deposed that since he was wearing the holly Ayyppaswamy Mala he did not went to see the injured persons. He did not depose who has died in the spot. He identified the driver but did not mention where he seen them. He further deposed that he has given statement on the same day at 12.30 p.m. the said witness was subjected to cross-examination and where he admits the suggestions of the APP. The counsel for the accused contended that in the instant case the said witness has given further statement with regard to 17 C.C.No.3519/2018 identification of accused, but he did not deposed the same. He has not deposed about giving further statement with regard to identification , he deposed only with regard to first statement and pointed out omission on the part of the prosecution. Further contended that in his 161 statement he contended that he is the care taker of shulab shouchalaya and he was standing in front of shulab shouchalya and at that time accident has taken place. But he did not whisper about anything before the court on that aspect and contended the witness is not reliable one. Upon perusal of his 161 statement and further statement the contention taken by the counsel for the accused holds good. The witness states he was standing in front of shulab shouchalaya and was about to go for coffee, but before court he deposed he was coming from temple , there are certain contradictions found and he was not questioned about giving further statement before the court which is fatal to their case. Learned APP admits the complainant was not examined due to his non availability. In the case on hand the complainant is a victim who lodged complaint, based upon his complaint only the prosecution initiated the process. In the case on hand the prosecution also did not examine the another witness i.e., P.W.5 who is the pillion rider of the deceased. He is a material witness and non examination 18 C.C.No.3519/2018 of complainant and victim is fatal to the case of the prosecution.
23. The prosecution alleged that accused No.1 being the driver of the cab driven his vehicle rash and negligent manner and all of a sudden took right turn. Upon perusal of sketch map as per Ex.P.5 the said road is a double road and there is option for right turn and the way in which the cab came there is a traffic signal within 30ft. Which means the cab was coming from traffic signal and upon perusal of the sketch map it appears that there is a signal for the two wheelers as well to stop, the prosecutor did not mention for whom the signal was available. As per the sketch map the rider has taken the right turn and the left portion of the cab has come in contact with the two wheeler. Upon perusal of the IMV Report as per Ex.P.10 the car had damages on front left fender shield, left front door and left running board which means the car has taken the turn and hence the front and middle portion of the car was damaged. In the similar manner with regard to bikes they sustained damages on front side and right side. According to prosecution the accused took right turn all of a sudden without giving any indication. As discussed earlier since there is a signal light normally in signals the traffic will 19 C.C.No.3519/2018 get slow and speed will not pick up immediately that too within 30ft is quite not possible. The prosecution has not examined the complainant and victim those are the best persons to depose whether the accused put indicator or not. As per the sketch map the alleged toilet is on the north side, if P.W.3 stands in front of toilet then the car block his view and he cannot say how accident has taken place. As discussed earlier he submits at one stage he was near bakery to had coffee which is opposite side, if that version is taken into consideration the entire view is blocked by car. He cannot depose in clarity about the incident. The P.W.2 claims he was proceeding in his auto on the said road. He did not narrated from what distance he has seen the accident. The contention of the APP that eye witness supported the case is not tenable since there are material contradictions noticed in their deposition. The burden is upon the prosecution to prove their case beyond reasonable doubt. Here there are several discrepancies noticed in the case of the prosecution and as per the rules of Criminal justice, if any doubt comes in the mind of the court then the said doubt shall be in favour of the accused only.
24. The prosecution further contended about non possessing of badge by accused No.1 and they in the 20 C.C.No.3519/2018 charge sheet alleged that accused no.1 committed the offence punishable U/s.3(1) R/w.181 of M.V.Act and accused No.2 has committed the offence punishable U/s.5 R/w.180 of M.V.Act the said section speak about driving the vehicle without possessing valid driving license. In the case on hand the investigating officer himself admits that accused was possessing valid driving licnese and they have produced the same before him. If the same is produced then the IO before submitting charge sheet should be cautious and he should not have mention the above sections. Yes it is true that for driving a public service vehicle a badge is necessary and the driver of the public service or yellow board vehicle wearing badge is compulsory. As per the recent verdict of Hon'ble apex court has held that not possessing badge is not fatal if a person had valid driving license to drive the alleged vehicle and counsel for accused No.2 also argued on the same lines, since possessing driving license of the accused No.1 was not in dispute it cannot be held that accused persons have committed the offence alleged against them. Accordingly, the points under consideration are answered point No.1 to 4 IN THE NEGATIVE.
21C.C.No.3519/2018
25. POINT No.5: In view of the above discussions and findings I proceed to pass the following:
ORDER Acting U/sec. 255(1) of Criminal procedure code, the accused No.1 and 2 are hereby acquitted of the offences alleged against him punishable U/sec. 279, 337, 338 and 304(A) of IPC, Sec.3(1) R/w.181 and Sec.5 R/w.180 of M.V.Act.
The bail bonds of accused and surety bonds shall stands cancelled after the appeal period.
(Dictated to the Stenographer directly on computer, typed by her, corrected and then pronounced by me in the open court this the 22 nd day of August 2024.) (GAGAN M.R.) JMFC (Traffic Court -IV), BENGALURU ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE PROSECUTION:
P.W.1: Zahir Ahammad P.W.2: Nadim Pasha 22 C.C.No.3519/2018 P.W.3: Annappa P.W.4: Bhairabhovi P.W.5: Janardhan
2) LIST OF DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1: Spot mahazar Ex.P.2: Complaint Ex.P.3: FIR Ex.P.4: Inquest mahazar Ex.P.5: Rough Sketch Ex.P.6 133 notice Ex.P.7: Reply Ex.P.8: Wound certificate Ex.P.9: Wound certificate Ex.P.10: IMV Report Ex.P.11: P.M. Report
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:
NIL
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED:
NIL (GAGAN M.R.) JMFC (Traffic Court -IV), BENGALURU