Bangalore District Court
Kumaraswamylayout Trps vs Ramakrishna M on 27 November, 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 27th DAY OF NOVEMBER 2024
C.C.No.11798/2019
COMPLAINANT: State by K.S. Layout
Traffic Police Station, Bangalore
(Represented by: APP)
VS.
ACCUSED: 1) Ramakrishna M.,
S/o. Sri Muniraju,
Age: 27 years,
R/at No.E-271,
Talghattapura village and post,
Uttarhalli Hobli, Kanakapura Road,
Bangalore - 62
(Represented by: Sri M. Shivarama Adv.)
1. Date of commission of offence : 27-10-2019
2. Offences alleged against accused : U/s.279 and 304(A) of IPC,
Sec.134(a and b) R/w.187,
of M.V.Act.
3. Date of recording of evidence : 07-01-2023
4. Date of closing evidence : 31-02-2024
5. Date of judgment : 27-11-2024
***
2
C.C.No.11798/2019
JUDGEMENT
The Police Inspector of K.S. Layout Traffic Police Station has filed the charge sheet against the accused for the offences punishable U/s.279 and 304(A) of IPC, Sec.134(A & B) R/w Sec.187 of M.V.Act
2. It is the case of the prosecution that on 27-10-2019 at about 8.30 p.m. accused being the rider of Bullet motor cycle bearing registration No.KA-41/EL-1476 drove the same on Kanakapura main road, from Sarakki signal towards Talghattapura in a rash and negligent manner so as to endanger human life and he dashed to pedestrian who was crossing the road in front of Karnataka Mutton stall, from Rajiv Gandhi road towards Sri Ram Mandir. Due to the impact the pedestrian Sri Shivakumar B.S., aged about 55 years fell down and sustained grievous head injuries. Later he succumbed to death on his way to the hospital. Further on the day of accident the accused did not provide medical aid to the injured nor he intimated to the police about the accident, thereby the accused is alleged to have committed the offences punishable U/s.279 and 304(A) of IPC, Sec.134(A & B) R/w.187 of M.V.Act.
3C.C.No.11798/2019
3. Upon taking cognizance, case came to be registered against accused for the offences punishable U/s.279 and 304(A) of IPC, Sec.134(a and b) R/w.187 of M.V.Act. The accused appeared before the court through his counsel & got enlarged on bail. Charge sheet copies furnished to the accused 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 and 304(A) of IPC, Sec.134(a and b) R/w.187 of M.V.Act for which accused pleaded not guilty claimed to be tried.
5. During the course of trial, the prosecution has examined P.W.1 to 6 and got exhibited documents as per Ex.P.1 to Ex.P.10. On completion of prosecution side evidence, the statement of accused U/s.313 of Cr.P.C. was recorded and the accused denied all the incriminating evidence appearing against him and did not choose to lead any defence evidence.
6. Heard arguments on both sides.
7. The points that arise for my consideration are as follows:
1. Whether the prosecution proves beyond all reasonable doubt that on 27-10-2019 at about 8.30 p.m. accused being the rider of Bullet motor cycle bearing registration No.KA-41/EL-1476 drove the same on 4 C.C.No.11798/2019 Kanakapura main road, from Sarakki signal towards Talghattapura in a rash and negligent manner so as to endanger human life, thereby the accused has committed an offence punishable U/s.279 of IPC.?
2. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place the accused being the driver of the said vehicle, drove his vehicle in the above said manner. While so driving he dashed he dashed to pedestrian who was crossing the road in front of Karnataka Mutton stall, from Rajiv Gandhi road towards Sri Ram Mandir. Due to the impact the pedestrian Sri Shivakumar B.S., aged about 55 years fell down and sustained grievous head injuries. Later he succumbed to death on his way to the hospital, thereby the accused has committed an offence punishable U/s.304(A) of IPC?
3. Whether the prosecution further proves that the accused did not provide medical aid to the injured nor he intimated the police about the accident, thereby the accused has committed an offence punishable U/s.134 (A & B) R/w. Sec.187 of M.V.Act?
4. What order?
8. My answer to the above points are as under:
POINT No.1: IN THE NEGATIVE POINT No.2: IN THE NEGATIVE POINT No.3: IN THE AFFIRMATIVE POINT No.4: AS PER THE FINAL ORDER For the following 5 C.C.No.11798/2019 REASONS
9. POINT No.1 and 2: For the sake of convenience and to avoid repetition of facts, these points are taken up for common discussion to have brevity.
10. It is the case of the prosecution that on 27-10-2019 at about 8.30 p.m. accused being the rider of Bullet motor cycle bearing registration No.KA-41/EL- 1476 drove the same on Kanakapura main road, from Sarakki signal towards Talghattapura in a rash and negligent manner so as to endanger human life and he dashed to pedestrian who was crossing the road in front of Karnataka Mutton stall, from Rajiv Gandhi road towards Sri Ram Mandir. Due to the impact the pedestrian Sri Shivakumar B.S., aged about 55 years fell down and sustained grievous head injuries. Later he succumbed to death on his way to the hospital. Further on the day of accident the accused did not provide medical aid to the injured nor he intimated to the police about the accident, thereby the accused is alleged to have committed the offences punishable U/s.279 and 304(A) of IPC, Sec.134(A & B) R/w.187 of M.V.Act.
6C.C.No.11798/2019
11. In order to prove the contents of complaint the prosecution examined 6 witnesses as P.W.1 to P.W.6 and marked 10 documents as Ex.P.1 to Ex.P.10.
12. C.W.1/ Nagaraju is examined as P.W.1 who is the complainant and hearsay witness of this case. He deposed that the deceased Shivakumar is his brother. On 27/10, around 3 years back, while he was in house, his brother went out around 8.30 p.m. by saying he was going to temple. After some time he received call that his brother had met with an accident, immediately he went to the spot, but he was shifted to Sairam hospital. He went to hospital there he came to know his brother sustained bleeding injuries on head and eyes. For further treatment he was shifted to NIMHAS hospital. Later he came to know that his brother was crossing the road from Rajivgandhi road towards temple, at that time one Bullet vehicle bearing registration No.KA-41-EL-1476 came from Sarakki side and dashed to his brother. In this regard he has lodged complaint against the accused in K.S. Layout police station. The learned APP treated the witness as partly hostile and cross-examined him with the permission of the court. During his cross-examination by the learned APP he admitted the suggestion that he has given complaint against the driver of KA-41-EL-1476 who 7 C.C.No.11798/2019 came in a rash and negligent manner and dashed to his brother.
During his cross-examination by accused counsel he deposed that he has not seen the accident live. Further admits he does not know the contents of the complaint. He denied the suggestions of the accused counsel.
13. C.W.2 / Sri Somashekar is examined as P.W.2 who is eye witness of this case. He deposed that on 27-10-2019 at about 8.30 p.m. while he was doing business in his Kabab shop on the side of the road, at that time one person was crossing the road from Rajiv Gandhi road towards Ramamandir. At that time one Bullet rider bearing registration No.KA-41-EL-1476 came from Sarakki signal in a rash and negligent manner and lost his control and dashed to the pedestrian who was crossing the road. Due to the impact the pedestrian fell down and sustained bleeding injuries on his face. Immediately he went to the spot and helped the injured. Later he called the relatives of the injured over phone intimated them about the accident and shifted the injured to hospital. On the next day on 29-10-2019 police called him and asked him to come to the spot. He went to the spot, police conducted spot mahazar in his presence 8 C.C.No.11798/2019 and prepared one rough sketch and obtained his signature. Police found cctv footage. He has identified the accused present before the court.
During his cross-examination by the accused counsel he deposed that C.W.1, 3 and 4 are his neighbor shop owners, deceased is known to him, but not relative. He knows the work of the deceased. He deposed that his shop is situated at a distance of 16ft from the accident spot. He deposed there is a zebra crossing at accident spot. He deposed that he has signed the mahazar in police station. He denied the suggestions of the accused counsel.
14. C.W.3/ Sri Gopi is examined as P.W.3 who is the eye witness of this case. He deposed that 27-10-2019 at about 8.30 p.m. he came for purchase fruit from Venkateshwara fruit shop on Kanakapura road, while he was going to back, at that time one bullet motor cycle rider came in rash and negligent manner from Sarakki signal and dashed to the pedestrian who was crossing Ram Mandir. Due to the impact he fell down. Immediately he and general public went there, the injured sustained injuries on his head and face. Bullet rider also sustained simple injuries. The accident has taken place due to the 9 C.C.No.11798/2019 negligent act of the bullet rider. The general public shifted the injured to Sairam hospital in an auto. Later he came to know that the injured succumbed to death. In this regard he has given statement before police. The bullet bearing registration No.KA-41-EF-467. He has identified the accused present before the court. The learned APP treated the witness as partly hostile and cross-examined him with the permission of the court. During his cross- examination by the learned APP he admits the suggestion with regard to the bullet registration number.
During his cross-examination by the accused counsel he deposed that he does not do any fruit selling business. He deposed that he does not know C.W.1, 2 4 and 5. he admits the accident spot is a busy road. He deposed that there is no zebra cross at accident spot, but option for crossing the road. He admits he is seeing the accused for the first time. He admits he has not given the statement before police. He denied the suggestions of the accused counsel.
15. C.W.5/ Sri Abhinandan is examined as P.W.4 who is mahazar witness of this case. He deposed that on 29-10-2019 between 9.00 a.m. to 10.00 a.m. police conducted spot mahazar regarding the accident taken 10 C.C.No.11798/2019 place on 27-10-2019 between pedestrian and Bullet at yalachenahalli, Rammandir road in his presence. Police conducted spot mahazar in the spot and prepared one rough sketch and obtained his signature on the same.
During his cross-examination by the accused counsel he deposed that he has not seen the accident. Police has not served him any notice. He denied the suggestions of the accused counsel.
16. C.W.19/ Sri Vasanth Kumar M.A. is examined as P.W.5 who is the 2nd Investigating Officer of this case. He deposed that on 30-10-2019 he received the case file from C.W.18 and conducted further investigation. On the same day the owner of the vehicle produced the driver and the vehicle before him. He has arrested the accused and produced before the court. On the same day he issued Sec.133 notice and received reply to the said notice. He sent a requisition letter to concerned RTO. On the same day he released the vehicle in favour of the owner after obtaining indemnity bond. He collected the motor vehicle inspection report. He collected the postmortem report. Upon perusal of records the investigation was completed and filed final report against 11 C.C.No.11798/2019 the accused. He has identified the accused present before the court.
During his cross-examination by the accused counsel he admits the accident spot is a main road and generally it has heavy traffic. He admits there is no zebra crossing at accident spot, but deposed there is a option for crossing the road. He denied that during night time the registration number was seen in cctv camera. He denied the suggestions of the accused counsel.
17. C.W.18/ Sri Govardhan Rao is examined as P.W.6 who is the 1st Investigating Officer of this case. He deposed that on 28-10-2019 at around 8.00 p.m. while he was discharging his duty as SHO, C.W.1 came to station and lodged written complaint, he received the same and on the basis of said complaint he registered the case in Crime No.171/2019 against the accused and forwarded the same to court and higher officers. The injured person succumbed to the death in the said case, he has arranged to take the dead body from NIMHANS hospital to Victoria hospital mortuary. On the same day he visited Victoria hospital mortuary and conducted inquest mahazar in the presence of C.W.9 to 11 between 9.00 p.m. to 11.00 p.m. and body was sent to 12 C.C.No.11798/2019 postmortem. On the next day he visited the accident spot at around 9.00 a.m. and conducted mahazar between in the presence of C.W.2, 4 and 5 and prepared one rough sketch. While examining the spot it was found that cctv was installed at the place, so when cctv footage was checked, it was found that the accident was captured. He has given requisition to the owner of the said cctv C.W.6 and copied the cctv footage to pen drive. He recorded the statement of eye witnesses C.W.2, 3 and 4. He conducted scientific examination of the spot in the presence of C.W.15 and 16. On 30-10-2019 he handed over the case file to C.W.19 for further investigation.
During his cross-examination by the accused counsel he admits that it is a main road and there is a heavy traffic. He admits there is no zebra crossing at accident spot, but deposes there is a option for cross the road. He denied that he obtained false cctv footage and denied the suggestions of the accused counsel.
18. Out of the documents marked for prosecution Ex.P.1 is the complaint, Ex.P.2 is the Spot mahazar, Ex.P.3 is the 133 notice, Ex.P.4 is the reply, Ex.P.5 is the IMV Report, Ex.P.6 is the P.M. Report, Ex.P.7 is the 13 C.C.No.11798/2019 Indemnity bond, Ex.P.8 is the FIR, Ex.P.9 is the inquest mahazar and Ex.P.10 is the rough sketch,
19. In the instant case the prosecution is alleging that the accused being the rider of the two wheeler 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 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.
14C.C.No.11798/2019
20. 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.
21. The prosecution has to establish that the accused is the person who is driving the vehicle on the alleged day. The rider drove his vehicle in rash and negligent manner and due to his negligent act the deceased succumbed to death. To prove that aspect the prosecution has examined six witnesses though they have listed out 17 witnesses in the charge sheet. In the instant case the prosecution has examined the complainant as P.W.1, P.W.2 and 3 are the eye witnesses, P.W.4 as mahazar witness, P.W.5 and 6 are the investigating officers. Prosecution contended that P.W.2 and 3 are the eye witnesses and they have supported the case of the prosecution and deposed that accused drove his vehicle in a rash and negligent manner and dashed to pedestrian. The said version was supported by the investigating officer and hence they have proved their case. The contention of the accused is that he is not denying that he has not 15 C.C.No.11798/2019 caused the accident, but contended the aged person all of a sudden came to the road in a restricted area and the incident has taken place and due to his negligence the alleged incident has taken place and accused has not driven his vehicle in rash and negligent manner. Much was contended about cctv footage unfortunately the prosecution though relied on cctv footage did not produce the section 65B certificate without furnishing the 65B certificate the said cctv footage is of no use. In Anvar P.V. Vs. P.K. Basheer and others reported in (2014) 10 SCC 473, the apex court has held that:
22. The evidence relating to electronic record, as noted herein before, being a special provision, the general law of secondary evidence Under Section 63 read with Section 65 of the Evidence Act shall yield to the same.
22. With regard to electronic record particularly in the form of secondary evidence the same has to be governed by Sec.65A and 65B of Indian Evidence Act. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as held by apex court an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements Under Section 65B are satisfied. Thus, in the case of CD, VCD, chip etc., the same shall be accompanied by the certificate in terms of Section 65B 16 C.C.No.11798/2019 obtained at the time of taking the document without which the secondary evidence pertaining to that electronic record, is inadmissible. Hence due to absence of Sec.65B certificate the said cctv footage is inadmissible.
23. In the case on hand the complainant is a hearsay witness and he deposed in clarity he has not seen the accident and based on the information given by some unknown person he visited the spot and he does not know anything about the contents of the complaint. P.W.2 and 3 claims themselves as eye witnesses and P.W.2 claims he was doing business in his Kabab center and at that time he saw the accident immediately he went to rescue the injured and accused. Next day police conducted mahazar. In his cross-examination he has clearly admitted the complainant, P.W.3 and 4 are neighboring shop owners he even know the deceased, but he is not well versed with him. But he knows his job. He deposed that his shop is situated at a distance of 16ft from the accident spot and he claims accident has taken place on zebra cross. P.W.3 claims he went to purchase fruits when he was proceeding in the said road he saw the accident. He contended accused rider came in high speed and dashed to pedestrian. He admits it is a busy road and deposes there is no zebra cross at accident spot and clearly admits 17 C.C.No.11798/2019 he is seeing the accused for the first time. P.W.4 is the mahazar witness who deposed about conducting mahazar on next day.
24. Prosecution relied heavily on P.W.2 and 3. P.W.2 clearly deposed that P.W.1, 3 and 4 are his neighbouring shop owners. Though he claim he is not well versed with the deceased according to P.W.1 he is the brother of P.W.1. this fact raises doubt about the genuineness of his version. P.W.3 contend he went to purchase fruits and he does not know the deceased. According to P.W.2 he is the neighbouring shop owner. This factor shows that he is deposing false facts. PW..2 claims there is a zebra cross P.W.3 claims no zebra cross. In the case on hand the accused has also fallen down and sustained injury, but P.W.3 claims he is seeing the accused for the first time in the court which raises doubt about his presence at accident spot. Upon analyzing their version it is noticed that there are several contradictions between P.W.2 and3 hence those two witnesses are not trust worthy.
25. Apart from them prosecution examined the investigating officers who deposed about their duty. In the case on hand the deceased was crossing the road at 18 C.C.No.11798/2019 around 8.30 p.m. almost all the witnesses admits the suggestion that it is a busy main road, the time on which accident has taken place is a busy time. As per the version of the witness there is no zebra cross at accident spot,m but some eye witness and IO claims there is a option for crossing the road. To establish the said fact the prosecution has not furnished the photos when there is no zebra cross how an option is provided to cross the road, admittedly it is a busy road and there is a metro line over head.
26. The case of the prosecution is about crossing the road its speaks that the pedestrian was crossing the road and at that time accused came from behind and dashed to pedestrian. There is a contradiction in the statement of the witness and prosecution on this aspect. Apart from eye witness the prosecution has examined investigating officers they deposed in detail about their duty. The prosecution is contending that the accused being the driver of the bike caused untoward incident, due to this negligent act the victim sustained grievous injuries. In order to establish the same the prosecution has examined only circumstantial witnesses, the burden upon the prosecution is to prove the negligence. The same has to be proved through cogent evidence. The aspect of 19 C.C.No.11798/2019 negligence cannot be proved on preponderance of probability and the same has to be established beyond reasonable doubt. Here there are several material contradictions between the two eye witnesses upon which the prosecution is relying. One witness claims about existence of zebra cross other claims no zebra cross. Both of them claims it is a busy road. As per the version of the prosecution the accused flee away from the accident spot without providing the medical aid and intimating the police. If that version is taken into consideration the witness seeing the accused at accident spot appears to be doubtful. None of the witness deposed that they have seen the accused driving the vehicle in a negligent manner and the said negligent act is the root cause for the death of the victim. Prosecution claims the injured died due to injuries caused during accident. Upon perusal of Ex.P.6 i.e., postmortem report the cause of death is due to head injury, but his rest of the body part are intact. The injured has not sustained injury on legs and he has not suffered injury or damage over his lungs or abdominal portion. Without damage to lower portion of the body how all of a sudden he sustained vital head injury raises doubt. The prosecution failed to establish that the injured died due to injury sustained in road traffic accident, 20 C.C.No.11798/2019 which shows the prosecution failed to establish the second part of Sec.304(a) of IPC. Prosecution relied on cctv footage upon perusal of the same it has not captured the accident. It captures the road from a fruit shop and upon perusal of the cctv footage vehicles are moving in high number in good speed. At one point of time some people gathered at a far distance and apart from nothing is seen in cctv footage.
27. Upon perusal of the records of the instant case though the witness speak about collusion by the vehicle, but they did not speak about any attempt to over take the other vehicle or high speed of the vehicle on the said road, admittedly the said road is quite wider enough for movement of large vehicles and it is one way road with divider. The accident has taken place in the left corner of the road and pedestrian came to the road in a restricted area to cross the road. The investigating officer as well as eye witness clearly admits about existence of zebra crossing, but other eye witness and complainant disputed the existence of zebra crossing. If there is no zebra cross at accident spot there is no option for pedestrian movement at accident spot which speaks of negligence on the part of the deceased. Negligence is the absence of care and caution whereas culpable rashness results from 21 C.C.No.11798/2019 lack of circumspection. Generally the speed of the bike will be lesser than the normal speed while moving in traffic. High speed is a relative term and that has to be examined in the light of the facts & circumstances of the case. In the instant case the allegation is the accused has driven his vehicle to left side and in that process it came in contact with the person who was proceeding in the the road. With the available materials the court cannot come to the conclusion that the accident has occurred due to the speed of the accused alone. Therefore, in this circumstance of the case, the case of prosecution regarding rash and negligent act of accused could not be made out beyond reasonable doubt.
28. Therefore, looking to the evidence available on record and the materials placed by way of oral and exhibits, the case of prosecution appears to be doubtful. There is doubt as to whether the accused had driven the said vehicle in a rash and negligent manner, so as to endanger the human life and personal safety of others. The prosecution has failed to prove the alleged offence against the accused. Accordingly, the points under consideration are answered point No.1 and 2 IN THE NEGATIVE.
22C.C.No.11798/2019
29. POINT No.3: In the instant case it is alleged that the accused has failed to provide medical aid to the injured nor he has intimated the police about the accident on the date of the accident. Accordingly he has committed the offence punishable U/s.134(a and b) R/w.187 of M.V.Act. The accused has not contested this aspect and did not cross-examine the witnesses on this aspect, and they did not furnish any documents to deny the case of the prosecution with regard to the allegations leveled against him. Hence, the court answer this point IN THE AFFIRMATIVE.
30. POINT No.4: 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 is hereby acquitted of the offences alleged against him punishable U/sec.279 and 304(A) of IPC.
Acting U/s.255(2) of Criminal Procedure code, the accused No.1 is hereby convicted of the offences alleged against him punishable U/s.134(a and b) R/w.187 of M.V.Act.
23C.C.No.11798/2019 Accused is hereby directed to pay fine of Rs.10,000/- for the offences punishable U/s.134(a and b) R/w.187 of M.V.Act in default he shall undergo SI for 3 months.
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 27th day of November 2024).
(GAGAN M.R.) JMFC (Traffic Court -IV), BENGALURU.
ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR THE PROSECUTION:
P.W.1: Sri Nagaraju P.W.2: Sri Somashekar P.W.3: Sri Gopi P.W.4: Sri Abhinandan P.W.5: Sri Vasanth Kumar M.A. P.W.6: Sri N. Govardhan Rao
2. LIST OF DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1: Complaint Ex.P.2: Spot mahazar Ex.P.3: 133 notice Ex.P.4: Reply Ex.P.5: IMV Report 24 C.C.No.11798/2019 Ex.P.6: P.M. Report Ex.P.7: Indemnity bond Ex.P.8: FIR Ex.P.9: Inquest mahazar Ex.P.10: Rough Sketch
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.