Bangalore District Court
Hulimavu Trps vs Smt Shobha G on 5 June, 2024
IN THE COURT OF THE METROPOLITAN MAGISTRATE
TRAFFIC COURT - IV, BANGALORE
PRESENT: SRI GAGAN M.R. B.A.L LLB
Metropolitan Magistrate
Traffic Court - IV, BANGALORE
DATED : THIS THE 5th DAY OF JUNE 2024
C.C. No.4822/2020
COMPLAINANT: State by Hulimavu Traffic Police
Station, Bangalore
(Represented by: APP)
V/S.
ACCUSED: 1) Smt. Shobha G.
D/o. Late Velu,
Age: 36 years,
R/at No.93, 6th cross,
Near Shiva Temple,
Doctors Layout,
Hosur Road,
Bangalore
(Represented by: Sri C. Sreenivasa Kumar Adv.)
1. Date of commission of offence : 23-06-2020
2. Offences alleged against accused : U/s.279 & 338 of IPC,
and Sec.146 R/w.196
of M.V.Act.
3. Date of recording of evidence : 28-10-2021
4. Date of closing evidence : 07-10-2023
5. Date of judgment : 05-06-2024
***
2
C.C.No.4822/2020
JUDGEMENT
The Sub-Inspector of Hulimavu Traffic Police Station has filed the charge sheet against the accused for the offences punishable U/s.279 and 338 of IPC and Sec.146 R/w.196 of M.V.Act.
2. The brief case of the prosecution is that:
On 23-06-2020 at about 8.45 a.m. within the jurisdiction of Hulimavu Traffic police station, the accused being the rider of Scooter bearing registration No.KA-03/EZ-3154 drove the same on Hosur main road, from Electronic city towards Kudlugate in a rash and negligent manner so as to endanger human life and dashed to the pedestrian C.W.1 who was crossing near Singasandra bus stand, near pillar No.119. Due to the impact the pedestrian C.W.1 sustained grievous injuries. Further the accused vehicle was not having valid insurance on the day of accident. Thereby the accused is alleged to have committed the offences punishable U/s.279 and 338 of IPC and Sec.146 R/w.196 of M.V.Act.
3. Upon taking cognizance, case came to be registered against accused for the offences punishable U/s.279 & 338 of IPC and Sec.146 R/w.196 of M.V.Act. The accused appeared before the court through his 3 C.C.No.4822/2020 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 & 338 of IPC and Sec.146 R/w.196 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 3 and got exhibited documents as per Ex.P.1 to Ex.P.9. 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 23-06-2020 at about 8.45 a.m. within the jurisdiction of Hulimavu Traffic police station, the accused being the rider of Scooter bearing registration No.KA-03/EZ-3154 drove the same on Hosur main road, from Electronic city towards Kudlugate 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?4
C.C.No.4822/2020
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 his vehicle he dashed to the pedestrian C.W.1 who was crossing near Singasandra bus stand, near pillar No.119. Due to the impact the pedestrian C.W.1 sustained grievous injuries, thereby the accused has committed an offence punishable U/s.338 of IPC?
3. Whether the prosecution further proves beyond all reasonable doubt that the said vehicle was not having valid insurance on the date of accident, thereby the accused has committed an offence punishable U/Sec.146 R/w Sec.196 of IMV 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 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.
5C.C.No.4822/2020
10. It is the case of the prosecution that on 23-06-2020 at about 8.45 a.m. within the jurisdiction of Hulimavu Traffic police station, the accused being the rider of Scooter bearing registration No.KA-03/EZ-3154 drove the same on Hosur main road, from Electronic city towards Kudlugate in a rash and negligent manner so as to endanger human life and dashed to the pedestrian C.W.1 who was crossing near Singasandra bus stand, near pillar No.119. Due to the impact the pedestrian C.W.1 sustained grievous injuries. Further the accused vehicle was not having valid insurance on the day of accident. Thereby the accused is alleged to have committed the offences punishable U/s.279 and 338 of IPC and Sec.146 R/w.196 of M.V.Act.
11. In order to prove the contents of complaint the prosecution examined 3 witnesses as P.W.1 to P.W.3 and marked 9 documents as Ex.P.1 to Ex.P.9.
12. C.W.1/ Katyayini is examined as P.W.1 who is the complainant of this case. She deposed that on 23- 06-2020 at about 8.45 a.m. while she was going to work, in Singasandra bus stand the Scooty driven by Shobha bearing registration No.KA-03-EZ-3154 came from Electronic city towards Kudlugate in a rash and negligent 6 C.C.No.4822/2020 manner and dashed to her right leg and right hand. Due to the impact she fell down and become unconscious. The general public shifted her to Palakshi hospital. Police came to hospital at about 7.00 p.m. and recorded her statement. Shobha also admitted in hospital. She has identified the accused present before the court.
During her cross-examination by the accused counsel she deposed that she has given complaint in police station. Due to accident she was unable to ride and complaint was written by police. She does not know the contents of complaint. She deposed that there was no pedestrian crossing at accident spot. She denied the suggestions of the accused counsel.
13. C.W.9/ Sampath Kumar is examined as P.W.2 who is the 2nd Investigation Officer of this case. He has received the case file from C.W.8 and conducted further investigation. He sent a requisition letter to concerned vehicle inspector. ON 03-07-2020 his staff produced the owner of the vehicle before him. He issued Sec.133 notice and received reply to the said notice. Upon perusal of reply he came to know that the said vehicle was not having insurance policy on the day of accident. Hence he seized the vehicle by drawing vehicle seizure 7 C.C.No.4822/2020 mahazar in the presence of C.W.4 and 5. He arrested the accused and released her on bail. He received the wound certificate. He received the vehicle inspection report. After completion of investigation he has submitted Charge Sheet against the accused. He has identified the accused present before the court. During his cross-examination he denied the suggestions of the accused counsel.
14. C.W.8/ Shivaramaiah C.L. is examined as P.W.3 who is the 1st Investigation Officer of this case. He deposed that while he was discharging his duty he rec eived MLC Report from Parappana Agrahara police station. After receiving the information, he sent his staff to Pralaksha hospital to enquire about it. He visited the hospital and recorded the statement of the injured who was taking treatment in the said hospital in the presence of the doctor and submitted before him. On the basis of said statement he registered the case in Crime No.47/20 against the accused and submitted FIR to senior officer and to court. On the next day he visited the accident spot and conducted spot mahazar in the presence of C.W.2 and 3 and prepared one rough sketch between 9.00to 10.00 a.m. He handed over the case file to C.W.9 for further investigation. During his cross-examination he denied the suggestions of the accused counsel.
8C.C.No.4822/2020
15. Out of the documents marked for prosecution Ex.P.1 is the Statement of P.W.1, Ex.P.2 is the vehicle seizure mahazar, Ex.P.3 is the 133 notice, Ex.P.4 is the reply, Ex.P.5 is the wound certificate, Ex.P.6 is the IMV Report, Ex.P.7 is the FIR, Ex.P.8 is the Spot mahazar and Ex.P.9 is the Rough sketch,
16. Upon analyzing the statement of the witnesses and documents submitted by both sides, in the instant case it is not the case of the defence that the accused person was not driving the alleged bike and they are not disputing the injury to the victim was not due to accident. Their contention is the accident occurred due to the negligent act of the victim and in a sense they are highlighting the concept of contributory negligence. In the instant case Rash and negligent driving of the accused driver is the vital point to book him u/s 279 IPC or section 338 IPC.
17. Sec.279 of IPC deals with rash and negligent driving 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 9 C.C.No.4822/2020 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. Regarding rash or negligent driving Hon'ble Supreme Court in the case of Ravi Kapur -Vs- State of Rajasthan in AIR 2012 SC 2986 observed as follows :-
"10. In order to examine the merit or otherwise of contentions (b) and (c) raised on behalf of the Appellant, it is necessary for the Court to first and foremost examine (a) what is rash and negligent driving; and (b) whether it can be gathered from the attendant circumstances. Rash and negligent driving has to be examined in light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to 'rash and negligent driving' within the meaning of the language of Section 279 Indian Penal Code. That is why the legislature in its wisdom has used the 10 C.C.No.4822/2020 words 'manner so rash or negligent as to endanger human life'. The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated Under Section 279 Indian Penal Code is attracted.
11. '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. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence.
12. The Court has to adopt another parameter, i.e., 'reasonable care' in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others.11
C.C.No.4822/2020
13. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes -one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in the Indian Penal Code that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concept of 'culpable rashness' and 'culpable negligence' into consideration in cases of road accidents. 'Culpable rashness' is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite consciousness (luxuria). 'Culpable negligence' is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a 12 C.C.No.4822/2020 conjectural inference, shows that the act is attributable to some person's negligent conduct. [Ref. Justice Rajesh Tandon's 'An Exhaustive Commentary on Motor Vehicles Act, 1988' (First Edition, 2010].
18. In the instant case as well the prosecution though established that the accused person was driving the alleged bike on the said date it did not conclusively established that how the accident has occurred, the prosecution contend it is an head to head collusion between the accused bike and victim. The narration of the prosecution that due to impact of accident the victim fell down and sustained injuries. As admitted by all the witnesses the said road is a national high way road and there is a two way traffic on the said road. The victim was crossing the road in a place which is not designated for crossing the road i.e., zebra crossing. Prosecution alleged accused drove his bike in a rash and negligent manner, but accused contended all of a sudden he came to the road without any intimation and due to which untoward incident occurred.
19. When the prosecution or the defence fails to narrate how the untoward incident happened and when defence alleged fault on opponent the concept of res ipsa loquitor comes into picture Hon'ble Supreme court in case of Md. Ainuddin vs-State of Andhra Pradesh 2007 13 C.C.No.4822/2020 SCC 72 discussed the principle of 'res ipsa loquitur' as under;
-"9.A rash act is primarily an overhasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.
In light of the above, now we have to examine if negligence in the case of an accident can be gathered from the attendant circumstances. We have already held that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the civil jurisprudence. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose negligence the accident occurred. The factum of accident having been established, the Court with the aid of proper evidence may take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur. The mere fact of occurrence of an accident does not necessarily imply that it must be owed to someone's negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases, the circumstantial evidence may be adduced to prove negligence. Circumstantial evidence consists of facts that necessarily point to negligence as a logical conclusion rather than providing an outright demonstration thereof. Elements of this doctrine may be stated as:
The event would not have occurred but for someone's negligence. The evidence on record rules out the possibility that actions of the victim or some third party could be the 14 C.C.No.4822/2020 reason behind the event. Accused was negligent and owed a duty of care towards the victim.
20. In present case the eye witness who supported the case of the prosecution is P.W.1 i.e., the victim. Apart from her no other eye witness is examined by the prosecution. The victim also deposed that soon after the accident she became unconscious. She has not narrated whether she has seen the accused woman prior to accident, since she deposed that the accused was also admitted in hospital she might have presumed a theory that cane be brushed out completely. In the instant case the defence also failed to establish their projection by adducing any reliable evidence from their side. But they are successful in creating a doubt regarding contributory negligence. So rash and negligent driving is not proved against the accused beyond all reasonable doubt. Therefore, in this circumstances of the case, the case of prosecution regarding rash and negligent act and also regarding the injury was caused by the vehicle of accused could not be made out beyond reasonable doubt. 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 a doubt as to whether the accused had driven the said vehicle in a rash or negligent manner. Therefore, in the 15 C.C.No.4822/2020 circumstances of the case, 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.
21. POINT No.3: The prosecution further alleged in the charge sheet that the accused vehicle was not having valid insurance policy as on the date of accident. The IO in his charge sheet has stated that the accused vehicle was not having valid insurance policy as on the date of accident. The defence counsel did not produce any documentary evidence to show that the accused person is having a valid insurance policy for her scooter. They did not bother to question the witness on this aspect. They have not denied the answer given to 133 notice given by the police which means they are having knowledge that the bike which involved in accident was not having valid driving license on the day of accident. It amounts to admission and the defence has not led any defence evidence to deny the allegations made by the prosecution under Indian Motors Vehicles Act. Hence point No.3 is answered IN AFFIRMATIVE.
22. POINT No.4: In view of the above discussions and findings I proceed to pass the following 16 C.C.No.4822/2020 ORDER Acting U/s.255(1) of Criminal Procedure code, the accused is hereby acquitted of the offences alleged against her punishable U/s.279 & 338 of IPC.
Acting U/s.255(2) of Criminal Procedure code, the accused is hereby convicted of the offences alleged against her punishable U/s.146 R/w.196 of M.V.Act.
The accused is directed to pay fine of Rs.1,000/- for the offences punishable U/s.146 R/w.196 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 5 th day of June 2024).
(GAGAN M.R.) MMTC - IV, BANGALORE.
ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR THE PROSECUTION:
P.W.1: Kathyayini P.W.2: Sampath Kumar P.W.3: Shivaramaiah C.L.
2. LIST OF DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1: Statement of P.W.1 Ex.P.2: Vehicle seizure mahazar Ex.P.3: 133 notice 17 C.C.No.4822/2020 Ex.P.4: Reply Ex.P.5: Wound certificate Ex.P.6: IMV Report Ex.P.7: FIR Ex.P.8: Spot mahazar Ex.P.9: Rough Sketch
3. LIST OF WITNESSES EXAMINED FOR THE ACCUSED:
NIL
4. LIST OF DOCUMENTS MARKED FOR THE ACCUSED:
NIL (GAGAN M.R.) MMTC - IV, BANGALORE.