Bangalore District Court
State By Chikcpet Traffic Police ... vs B.N. Manjunath S/O Boregowda on 12 February, 2021
IN THE COURT OF THE METROPOLITAN MAGISTRATE
TRAFFIC COURT- II, BENGALURU.
DATED THIS THE 12TH DAY OF FEBRUARY 2021
Present: Smt. Rekha. H.C.
B.A.LLB
Metropolitan Magistrate,
Traffic Court-II, Bengaluru.
CC No. 507/2014
2
Complainant: State by Chikcpet Traffic Police Station, Bangalore.
(Represented by: Sr. APP)
V/s
Accused:- B.N. Manjunath S/o Boregowda, 31 Yrs, R/at
B.Byrapura Village, Karehalli Post, Bagur Hobli,
Channarayapatna Taluk, Hassan.
Driver of Tipper Lorry bearing Reg. no. KA 01 B 7386
(Represented by Sri. M.M. Adv.)
1. Date of commission of offence: 29.4.2013
2. Offences alleged against accused U/sec. 279, 304-A of IPC
3. Date of recording of evidence: 24.8.2015
4. Date of Judgment: 12.02.2021
JUDGMENT
The Inspector of Police, Chickpet Traffic P.S. has filed charge sheet against the accused for the offences punishable U/sec. 279 and 304-A of IPC.
2. The brief case of the prosecution is that;
On 29.4.2013 at about 10.45 p.m., within the jurisdiction of Chickpet Traffic police station, the accused being the driver of Tipper Lorry bearing Reg. no. KA 01 B 2 CC 507/2014 7386 drove the same on AS Achar street road from south towards north direction drove the same in a rash and negligent manner so as to endanger the human life and while taking right turn near Mamatha Bar dashed against pedestrian/Ramu who was walking beside the road along with rag picked pack. Due to the impact, said pedestrian/Ramu fell down and right wheel of the tipper lorry ran over on his lower abdomen and was shifted to Victoria hospital for treatment, but he did not respond to the same and succumbed on 30.4.2013. Based on the first information statement registered by CW-1, the case came to be registered against the accused in Cr. No. 21/2013. 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 postmortem report and other documents and on completion of investigation has filed charge sheet against the accused for the offences punishable U/sec. 279 and 304-A of IPC.
3. Upon taking cognizance, case came to be registered against accused for the offences punishable U/sec. 279 and 304-A of IPC. The accused appeared before court engaged counsel and 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 and 304-A of IPC for which accused pleaded not guilty claimed to be tried.
3 CC 507/20145. During the course of trial, the prosecution has examined PWs-1 to 4 and got exhibited documents as per Ex.P.1 to Ex.P.12. 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 29.4.2013 at about 10.45 p.m., the accused being the driver of Tipper Lorry bearing Reg. no. KA 01 B 7386 drove the same on AS Achar street road from south towards north direction drove the same in a rash and negligent manner so as to endanger the human life. 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 Tipper Lorry bearing Reg. no. KA 01 B 7386 while taking right turn near Mamatha Bar dashed against pedestrian/Ramu who was walking beside the road along with rag picked pack and, said pedestrian/Ramu fell 4 CC 507/2014 down and right wheel of the tipper lorry ran over on his lower abdomen and was shifted to Victoria hospital for treatment, but he did not respond to the same succumbed on 30.4.2013. Thereby the accused has committed an offence punishable U/sec. 304- A of IPC?
3. What Order?
8. Now, my findings to the above points are as follows:
Point Nos.1 & 2 : In the Negative Point No.4: 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 It is the specific case of the prosecution that on 29.4.2013 at about 10.45 p.m., within the jurisdiction of Chickpet Traffic police station, the accused being the driver of Tipper Lorry bearing Reg. no. KA 01 B 7386 drove the same on AS Achar street road from south towards north direction drove the same in a rash and negligent manner so as to endanger the human life and while taking right turn near Mamatha Bar dashed against pedestrian/Ramu who was walking beside the road along with rag picked pack. Due to the impact, said pedestrian/Ramu fell down and right wheel of the tipper lorry ran over on his lower abdomen and was shifted to 5 CC 507/2014 Victoria hospital for treatment, but he did not respond to the same succumbed on 30.4.2013.
10. To prove its case, the prosecution examined PWs. 1 to 4 and marked Exs.P.1 to 12 with sub marking.
11. CW-1 is J.K. Ramakrishna examined as PW-1 who is complainant and eye witness. He deposed that he was patrolling duty at ASR street on 29.4.2013 at about 10.30 p.m. on that day, he received the information about the accident from control room and he went to the spot and found that one Tipper lorry bearing Reg. no. KA 01 B 7386 dashed against one pedestrian and said pedestrian fell on beside the road and he sustained grievous injuries and the injured was shifted the victim to Victoria hospital and he came to know that on 30.4.2013 the injured was succumbed.
11. PW-1 further deposes that he came to know from the public that the driver of lorry came in high speed and negligent manner from ASR street towards Victoria hospital and dashed against pedestrian and the accident had happened due to the fault of tipper lorry driver so he lodged complaint as per Ex.P.1.
12. CW-3 is Rajendra Kumar examined as PW-2 who is mahazar witness. He deposed that at about 11.00 a.m. the police have conducted spot mahazar as per Ex.P.2 in the presence of said witnesses.
On perusal of evidence of PW-2, he did not stated on which date the mahazar was conducted.
6 CC 507/201413. CW-2 Raju examined as PW-3 who is eye witness and spot mahazar witness of this case. He deposed that on 29.4.2013 at about 10.30 p.m., one lorry came in high speed towards Market and dashed against rag picker person and said lorry ran over on the abdomen of rag picker and was shifted to Victoria hospital. The registration number of lorry is 7386 and he identified the accused before court. On the next day, the police have conducted spot mahazar as per Ex.P.2 with presence of said witness.
Having partly turned hostile to the case of the prosecution, the learned Sr. APP cross examined PW-3 in detail, but nothing worth is elicited from the mouth of PW-3 to support the case of the prosecution.
14. CW-16 Suresh. T.V., Dy.S.P. examined as PW-4 states that on 30.4.2013, he received the first information statement from CW-1 and on its basis he registered the case in Cr. No. 21/2013 and dispatched FIR to the court. On the same day, he visited the spot and conducted spot mahazar and prepared rough sketch and on the same day, he issued 133 notice and received reply and he arrested the accused and produced before court. The deceased was unknown person so till 4.5.2013 he took steps to search the legal heirs of the deceased. He conducted inquest mahazar at Victoria hospital and conducted cremation of deceased. On 7.5.2013 he recorded the statement of CW-5. On 14.5.2013 he obtained IMV report and on 1.6.2013 he obtained 7 CC 507/2014 postmortem report and on conclusion of investigation he filed the charge sheet against the accused.
15. Out of the exhibits marked for prosecution Ex.P.1 is the complaint, Ex.P.2 is spot mahazar, Ex.P.3 is further statement of PW.3, Ex.P.4 is FIR, Ex.P.5 is rough sketch, Exs.P.6 & 7 are photos, Ex.P.8 copy of 133 notice, Ex.P.9 is reply, Ex.P.10 is inquest mahazar, Ex.P.11 is IMV report and Ex.P.12 is postmortem report.
16. In the light of the above material available on record, the learned Sr. APP argued that there is sufficient material on record to convict the accused.
17. The learned counsel for the accused argued that there is no evidence to show rash or negligent riding on the part of the accused. Further, he argued that the material and evidence available on record is not sufficient to believe the case of prosecution beyond reasonable doubt. Therefore, he prayed to acquit the accused.
18. 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 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 8 CC 507/2014 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.
19. For an offence punishable U/sec. 304-A of IPC the point to be established is that the act of accused was responsible for resulting in the death and such act of accused was rash and negligent although it did not amount to culpable homicide. To establish either of Sec. 279 or 304-A of IPC, rash and negligent has to be established, but only distinction is that in Sec. 279 rash and negligent act relates to the manner of driving or riding on a public way, while offence punishable U/sec. 304-A of IPC extends to any rash and negligent act falling short of culpable homicide. As indicated above, rashness or negligence to be established must be more than an error of judgment. Distinction between rashness and negligence is that negligence connotes want of proper care while rashness conveys an idea of reckless doing of an act without consideration of any consequences.
20. I have carefully gone through the charge sheet materials and also evidence made available in the file. PW-1 is hearsay witness is not saw the accident. Even though the accident had happened on 29.4.2013, but PW-1 lodged the complaint on 30.4.2013. Further, the mahazar witness not supported the case of prosecution and prosecution utterly failed to examined the eye witnesses of this case. More over, the prosecution has 9 CC 507/2014 examined PW-3 as eye witness of this case, but he did not stated anything about the prove the guilt against the accused. Even though the prosecution has treated the said witness as hostile, but in the cross-examination of said witness nothing is elicited to prove the guilt of accused. Further, the witnesses have not stated regarding the number of vehicle involved in the alleged accident and the witnesses have not stated rash and negligent act on the part of the accused on the date of alleged incident. More over the prosecution has not examined the eye witnesses of the case, even though spot mahazar witnesses were not supported the case of prosecution, except Investigating Officer, other witnesses are not given any evidence against the accused. Therefore, in this circumstances of the case, the case of prosecution regarding rash and negligent act and also regarding involvement of the vehicle of accused could not be made out beyond reasonable doubt.
21. Though, the inquest mahazar, Postmortem report and IMV report are marked, even then no offence could be made out beyond reasonable doubt.
22. The material witnesses to the case of prosecution have not supported the case. 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 was driver of bus. So also there is a doubt as to whether the accused had driven the said vehicle in a rash or negligent manner, so as to endanger 10 CC 507/2014 the human life and personal safety of others and dashed against pedestrian. Therefore, in the circumstances of the case, the prosecution has failed to prove the alleged offence against the accused.
In a road traffic accident cases first the prosecution has to prove the rash and negligent driving of the accused. In order to prove this fact the case in hand the prosecution fully depend upon the evidence of Investigating Officer who deposed about the accident. On the other hand, the accused has not disputed the fact that he was the driver of the offending vehicle on the date of accident. Here itself it is pertinent to note that while recording statement u/sec. 313 of Cr.P.C. the accused has not offered any explanation. As such it can be safely said that the accused does not dispute the fact that the accident had occurred due to his rash and negligent driving. In view of the discussion made supra, this court considered view that the prosecution has proved beyond reasonable doubt that the accused has committed an offence punishable U/sec. 279, 304-A of IPC. Hence, for the above discussions, I answer point nos. 1 & 2 in the negative.
23. 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:-
11 CC 507/2014ORDER Acting U/sec. 255(1) of Criminal procedure code, the accused is hereby acquitted of the offences alleged against him punishable U/sec. 279, 304-A of IPC.
Bail bonds of accused and surety bonds shall stand cancelled.
(Dictated to the stenographer, directly on the computer, typed by her, corrected and then pronounced by me in the open court on this the 12th day of February 2021).
(Rekha. H.C.) M.M.T.C-II, Bengaluru.
ANNEXURE List of witnesses examined for Prosecution:-
PW-1 J.K. Ramakrishna PW-2 Rajendra Kumar PW-3 Raju PW-4 Suresh. T.V
List of documents marked for Prosecution:
Ex.P.1: First information statement Ex.P.2 Spot mahazar Ex.P.3 Further Statement of PW.3 Ex.P.4 FIR Ex.P. 5 Rough sketch Exs.P. 6 & 7 Photos Ex.P.8 Copy of 133 notice Ex.P.9 Reply Ex.P.10 Inquest mahazar Ex.P.11 IMV report Ex.P.12 Postmortem report M.M.T.C-II, Bengaluru.