Bangalore District Court
State By Jayanagar Traffic Police vs B. Suresh Babu S/O Byrashetty on 27 July, 2022
IN THE COURT OF THE METROPOLITAN MAGISTRATE
TRAFFIC COURT IV, BENGALURU.
DATED THIS THE 27th DAY OF JULY 2022
Present: Sri. Gagan. M.R.
B.A.LLB
Metropolitan Magistrate,
Traffic CourtIV, Bengaluru.
CC No. 8701/2018
Complainant: State by Jayanagar Traffic Police
Station, Bangalore.
(Represented by: Sr. APP)
Accused: B. Suresh Babu S/o Byrashetty, 52 Yrs,
R/at No. 32, BDA Layuout, Avalahalli,
Girinagar 3rd Stage, Banashankari 3rd
Stage, Bengaluru.
(Represented by Sri. N.M.P Adv.)
1. Date of commission of offence: 17082018
2. Offences alleged against accused: U/s.279 & 338
of IPC
3. Date of recording of evidence: 30072019
4. Date of Judgment: 27072022
2 CC 8701/2018
JUDGMENT
The Police SubInspector of Jayanagar Traffic P.S. has filed charge sheet against the accused for the offences punishable U/sec. 279 and 338 of IPC.
2. The brief case of the prosecution is that;
On 17.8.2018 at about 12.30 p.m., within the jurisdiction of Jayanagar Traffic police station, the accused being the driver of BMTC bus bearing Reg. no. KA 01 F 8808 drove the same on Jayanagar 7 th Block, Kanakapura road @ 36th cross junction BMTC bus stand when CW1 was getting into the said bus, negligently closed the door and moved. Due to the said act, CW1 fell down from the said bus and rear left wheel of the said bus ran over on his left leg and caused grievous injuries. Based on the first information statement registered by CW1, the case came to be registered against the accused vide Cr. No. 68/2018. The I.O. took up the investigation, visited the spot, drawn the spot mahazar and recorded the statement of witnesses. The I.O. after obtaining the Wound certificate and other documents and on completion of investigation has submit charge sheet against the accused for the offences punishable U/sec. 279 and 338 of IPC.
3 CC 8701/20183. Upon taking cognizance, case came to be registered against accused for the offences punishable U/sec. 279, 338 of IPC and summons was issued to the accused, in reply the accused appeared before court engaged counsel and later he was enlarged on bail. Charge sheet copies furnished to the accused and thereby provision U/sec. 207 duly complied with.
4. Plea came to be framed for the offence punishable U/sec. 279, 338 of IPC for which accused pleaded not guilty claimed to be tried.
5. During the course of trial, the prosecution has examined PWs1 to 7 and got exhibited documents as per Ex.P.1 to Ex.P.9. On completion of prosecution side evidence, the statement of accused U/sec. 313 of Cr.P.C. was recorded and the accused denied all the incriminating evidence appearing against him. No defence evidence led.
6. Heard arguments on both sides.
7. The points that arise for my consideration are as follows:
1. Whether prosecution proves beyond all reasonable doubt that on 17.8.2018 at about 12.30 p.m., within the jurisdiction of Jayanagar Traffic police station, the accused being the driver of BMTC bus bearing Reg. no. KA 01 F 8808 drove the same on Jayanagar 7th Block, Kanakapura road @ 36th cross junction BMTC 4 CC 8701/2018 bus stand when CW1 was getting into the said bus, negligently closed the door and moved.
Thereby the accused has committed the offences punishable U/sec. 279 of IPC ?
2. Whether prosecution proves beyond all reasonable doubt that on the above date, time, and place, the accused being the driver of BMTC bus bearing Reg. no. KA 01 F 8808 CW 1 fell down from the said bus and left rear wheel of the said bus ran over on his left leg and sustained grevious injuries. Thereby the accused has committed an offence punishable U/sec. 338 of IPC?
3. What Order?
8. Now, my findings to the above points are as follows:
Point No.1 & 2 : In the Negative Point No. 3: As per order, for the following:
REASONS
9. Point Nos. 1 & 2 : Both points taken together for common discussion in order to avoid repetition of facts and for appreciation of evidence.
10. It is the specific case of the prosecution that on 17.8.2018 at about 12.30 p.m., within the jurisdiction of Jayanagar Traffic police station, the accused being the driver of BMTC bus bearing Reg. no. KA 01 F 8808 drove the same on Jayanagar 7th Block, Kanakapura road @ 36 th cross junction BMTC bus stand when CW1 was getting into the said bus, negligently closed the door and moved. Due to the said act, 5 CC 8701/2018 CW1 fell down from the said bus and rear left wheel of the said bus ran over on his left leg and sustained grievous injuries.
11. To prove its case, the prosecution examined PWs. 1 to 7 and marked Exs.P.1 to 9 with sub marking.
12. CW1 Shiva Prakash is examined as PW1 who is complainant and injured in this case. He deposed that on 17.8.2018 at about 12.30 p.m. he was standing in the bus stand near Nethradhama hosptial, Kanakapura Main Road, at that time when he was getting into the bus bearing reg. no. KA 01 F 8807, the driver of the said bus suddenly moved further, he lost his control and fell down from the bus and he sustained severe injuries and was admitted to Deepak hospital. The accident happened due to the fault of bus driver of said bus. On the next day, he lodged complaint as per Ex.P.1.
13. CW4 Keshav and CW5 Rajesh were examined as PWs2 and 3 who were spot mahazar witnesses of this case. They identified their signatures at Ex.P.2. On 18.8.2018 at about 1.30 pm. to 2.30 p.m. they signed the said spot mahazar.
14. CW7 Shivakumar is examined as PW4 he is the doctor who treated the injured. He deposed that on 17.8.2018 one Shiva Prakash Rao who brought with the history of road traffic accident and he examined him and provided treatment to him later he issued wound certificate as per Ex.P.3.
6 CC 8701/201815. CW8 Basavaraju is examined as PW5 who is Investigating Officer deposed that on 18.8.2018, he received the first information statement from CW1 and on its basis he registered the case in Cr. No. 68/2018 and dispatched FIR to the court. On the same day, he visited the spot and conducted spot mahazar and prepared rough sketch. He arrested the accused and on 11.10.2018 obtained wound certificate from Deepak Nursing Home, on 1.10.2018 obtained IMV report. PW5 further deposed that on 18.8.2018 he got issued 133 notice and received reply and on conclusion of investigation he filed the charge sheet against the accused.
16. CW3 Dhananjaya Kumar is examined as PW6 who is conductor of offending bus. He deposed that on 16.8.2018 at about 2.30 p.m. to 17.8.2018 at about 12.40 p.m. he was the conductor of BMTC bus bearing reg. no. KA 01 F 8807 and Suresh Babu was the driver of said bus. On 17.8.2018 at about 12.30 p.m. near Deepak Nursing Home, Jayanagar 7th block bus stop the passengeres were getting into the bus, at that time one person was came running and tried to get into the said bus, lost his control and fell down and sustained injuries to his left hand and was shifted to Deepak nursing home. He gave statement before the police.
17. Even though learned APP treated this witness as hostile and cross examined in detail, but nothing worth is 7 CC 8701/2018 elicited from the mouth of PW6 to support the case of the prosecution.
18. CW6 Mruthunjaya Honakeri is examined as PW7 who is IMV inspector of this case. He deposed that on 18.8.2018 at the requisition of Jayanagar Traffic police, he inspected TATA company Passenger vehicel bearing reg. no. KA 01 F 8807 and got issued IMV report as per Ex.P.6.
19. Out of the exhibits marked for prosecution Ex.P.1 is the complainant, Ex.P.2 is spot mahazar, Ex.P.3 is wound certificate, Ex.P.4 is FIR, Ex.P.5 is rough sketch, Ex.P.6 is IMV report, Ex.P.7 is copy of 133 notice, Ex.P.8 is reply, Ex.P.9 is statement of PW6.
20. Upon perusal of the witnesses examined by the prosecution the complainant and IO has supported the case of the prosecution. Apart from them no other witness examined by the prosecution did not supported the case of the complainant. Complainant is the injured victim he deposed that while boarding the bus due to the negligent act of the accused driver he fell down and rear tyre of the bus ran over his left leg. To prove that said aspect the prosecution apart from complainant examined P.W.6 who is the conductor of the bus. The said witness turned hostile and deposed a different version adverse to the case of the prosecution. Though he was subjected to crossexamination nothing worth full is elicited 8 CC 8701/2018 from his mouth, the said witness is working with accused person hence nothing can be expected from him. The prosecution in its final report has shown C.W.5 as eye witness but he was not examined for the reasons best known to them.
21. In the instant case the prosecution has alleged that the accused has committed the offences punishable U/s.279 and 338 of IPC. Sec. 279 of IPC deals with rash and negligent driving of any vehicle or riding on a public way in rash and negligent manner so as to endanger human life or likely to cause hurt or injury to any person. In order to constitute an offence U/sec. 279 of IPC, it must be established that the accused was driving the vehicle on a public way in a rash and negligent manner to endanger human life or to likely cause hurt or injury to any other person. For the purpose of section 279 of IPC, 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 Sec. 279 of IPC are; i) Rash and negligent driving or riding on public way. (ii) The act must be such as to endanger human life or likely to cause hurt or injury to any person. In the case on hand it is alleged that the accused driver drove the vehicle when passengers are getting inside the bus and due tot he said act the victim injured. Upon perusal of the crossexamination of complainant he deposed that he was talking in mobile phone when the incident taken place later he deposed that he finished 9 CC 8701/2018 conversation prior to boarding of the bus. It is clear that the victim was in mobile phone conversation prior to boarding of the bus. Whether he was talking in mobile phone at the time of incident is not established by defence. As per the version of the complainant while he was boarding bus there were other passengers who were in que to board the said bus. But none of them were shown as witness. In such circumstances the court has to look the version of the complainant in suspicious manner since it can not be completely ignored that contributory negligence on the part of the complainant as well. IN the instant case it is admitted fact that the said bus which caused injury to complainant has facility of automatic door closure and the control lies with driver of the bus. The said suggestion was admitted by the complainant as well and C.W.7 also deposed about the same. It is not the case of the complainant that the bus was over crowded and in order to deny entry to passengers the driver drove the vehicle nothing has been placed before the court.
22. It is common knowledge that the terms "rash" or "negligent" have not been defined in the Indian Penal Code. Be that as it may, a rash act can be inferred to primarily mean an over hasty or reckless act as opposed to a deliberate act or design. It basically denotes want or lack of proper care and caution and connotes an overt act with the consequence of risk that evil consequences might follow but with the hope that 1 CC 8701/2018 they will not happen. With regards to the term "negligence", a reference here may be made to the observation of the Hon'ble Supreme Court in the case of Ravi Kapur vs. State of Rajasthan (2012) 9 SCC 284 where the Hon'ble Apex court held that " 'Negligence' means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do."
23. A plain reading of the evidence on record and viewing it in the light of the well construed meaning of the two terms brings to the forefront that all the witnesses have failed to reflect any semblance of rashness or negligence purportedly exhibited by the accused, which could constitute an offence under the said Section. Giving impetus to such observation are largely the testimonies of P.W.6, who are the only eye witnesses to the incident with P.W.1, being merely hearsay and the remaining two being official witnesses. Thus, it goes without saying that the evidence of the two aforesaid witnesses will have a material bearing on the outcome of this case. However, the two eye witnesses failed to shed much light about the manner in which the accident had transpired. In view of the same, I am of the considered opinion that in the absence of any proof of negligence or rashness, which the prosecution in the firm opinion of this court has failed to establish, the 11 CC 8701/2018 accused cannot be adjudged to be responsible for the commission of the alleged offence. Situated thus, this point is decided in negative and thus goes in favor of the accused.
24. The prerequisites for an offence under Section 338, I.P.C. are rash or negligent act of the accused which endangers human life or personal safety of others and causing grievous hurt in consequence of such act. In the instant case, it is transparent based on the evidence adduced by the Prosecution, more specifically through the depositions of P.W.4, 5 and 6 corroborated by the other witnesses that the accident resulted in grievous hurt to Mr. Shiva Prakash. However, taking cue from the holding of this Court in the foregoing point, it comes to the fore that the overt act of rashness or negligence, which is the sine qua non for an offence under the said section could not be established by the prosecution and thus the materials on record manifestly do not constitute an offence under the said section. In view of the same, this point is decided in negative and again goes in favor of the accused.
25. Point No.3: In view of 'Negative' findings on the above points, the accused is entitled for acquittal on the ground of doubt benefit. Therefore, I proceed to pass the following: 1 CC 8701/2018 ORDER Acting U/sec. 255(1) of Criminal procedure code, the accused is hereby acquitted of the offences alleged against him punishable U/sec. 279 and 338 of IPC.
Bail bonds of accused and surety bonds shall stand cancelled after completion of appeal period.
(Dictated to the stenographer, directly on computer, corrected and then pronounced by me in the open court on this the 27th day of July 2022).
(Gagan. M.R) M.M.T.CIV Bengaluru.
ANNEXURE List of witnesses examined for Prosecution:-
PW1 Shivaprakash PW2 Keshav PW3 Rajesh PW4 Shivakumar PW5 Basavaraju PW6 Dhananjaya Kumar PW7 Mruthunjaya Honakeri
List of documents marked for Prosecution:
Ex.P.1: Complaint
Ex.P.2 Spot mahazar
Ex.P 3 Wound certificate
Ex.P. 4 FIR
Ex.P. 5 Rough sketch
Ex.P.6 IMV report
Ex.P.7 Copy of 133 notice
1 CC 8701/2018
Ex.P.8 Reply
Ex.P.9 Statement of PW6
Ex.P.10 Statement of PW7
LIST OF WITNESSES EXAMINED FOR THE ACCUSED:
NIL LIST OF DOCUMENTS MARKED FOR THE ACCUSED:
NIL M.M.T.CIV, Bengaluru.