Bangalore District Court
State By Banashankari Traffic P.S vs ) Rangaswamy P on 16 September, 2017
IN THE COURT OF THE METROPOLITAN MAGISTRATE
TRAFFIC COURT - IV, BANGALORE
PRESENT: GAYATHRI.S.KATE, B.com.,LLB.,
MMTC - IV, BANGALORE
DATED : THIS THE 16TH DAY OF SEPTEMBER 2017
C.C.No.11607/2015
COMPLAINANT: State by Banashankari Traffic P.S.
(Represented by Learned
Assistant Public Prosecutor)
VS.
ACCUSED: 1) Rangaswamy P.,
S/o. Late Patta,
Age: 37 years,
Token No.16729,
BMTC Depot 33,
P.P. Layout, Utharahalli,
Bengaluru
Permanent address:
No.9, Dharma Singh Colony,
2nd stage, Vidyaranyapura,
Mysuru
(Represented by Sri K.R. Chandre Gowda, Adv.)
***
2 C.C.No.11607/15
JUDGEMENT
The Police Sub-Inspector of Banashankari Traffic police station has filed the charge sheet against the accused for the offences punishable U/s.279, 338 & 304(A) of IPC, Sec.134(A & B) R/w.187 and Sec.119 R/w.177 of M.V.Act.
2. It is the case of the prosecution that on 12-02-2015 at about 3.45 p.m. the accused being the driver of B.M.T.C. bus bearing registration No.KA- 57/F-592 drove the vehicle in a rash and negligent manner as to endanger human life on Subramanyapura main road. While so driving his vehicle Teachers Colony, Banashankari 2nd stage he over take the vehicle and dashed against the Bajaj Pulsar motor cycle bearing registration No.KA- 05/HN-4960 which was proceeding near Sri Lakshmi Narasimha Swamy temple road junction in the same Subramanyapura road. Due to the impact of accident the vehicle No.KA-05/HN-4960 was damaged and the right front wheel of the accused bus ran over the left leg of the rider, who is C.W.3 and the waist of the pillion rider who is son of C.W.4. Hence C.W.3 & C.W.4 sustained grievous injuries and later C.W.4 3 C.C.No.11607/15 succumbed to the injuries. Further 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.279, 338 & 304(A) of IPC, Sec.134(A & B) R/w.187 and Sec.119 R/w.177 of M.V.Act.
3. On the basis of the information lodged by the C.W.1, the PSI has registered the case against the driver of B.M.T.C. bus bearing registration No.KA- 57/F-592, alleging offences U/s.279, 338 & 304(A) of IPC,Sec.134(A & B) R/w.187 and Sec.119 R/w.177 of M.V.Act. After completion of the investigation PSI has submitted the charge sheet against the accused alleging offences U/s.279, 338 & 304(A) of IPC, Sec.134(A & B) R/w.187 and Sec.119 R/w.177 of M.V.Act.
4. After filing the charge sheet, this court has registered the case against the accused for the aforesaid offences. In response to service of summons accused has appeared before the court through his learned advocate and got enlarged on bail. Prosecution papers were furnished to the accused as required U/s.207 of Cr.P.C. and proceed with the case. Substance of the accusation was framed and 4 C.C.No.11607/15 read over to the accused. The accused pleaded not guilty and claims to be tried. His plea was recorded accordingly.
5. In order to prove the guilt of the accused the prosecution has examined 4 witnesses as P.W.1 to P.W.4 and got marked 11 documents as Ex.P.1 to Ex.P.11 on their behalf.
6. After the closure of the prosecution case the statement of the accused as required U/s.313 of C.r.P.C. is recorded and read over to the accused. Wherein the accused denied the entire allegations made by the prosecution witnesses and not chosen to lead any defence evidence. Hence this court posted the case for arguments.
7. I have heard the arguments of learned APP for state and learned counsel for the accused and now the case is posted for judgment.
8. Now the points that arise for my consideration are as under:
1. Whether the prosecution proves beyond all reasonable doubt that on 12-02-2015 at about 3.45 p.m. the accused being the driver of B.M.T.C. bus bearing registration No.KA-57/F-592 drove the vehicle in a rash and negligent manner 5 C.C.No.11607/15 as to endanger human life on Subramanyapura main road, 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 his vehicle Teachers Colony, Banashankari 2nd stage he over take the vehicle and dashed against the Bajaj Pulsar motor cycle bearing registration No.KA-05/HN-
4960 which was proceeding near Sri Lakshmi Narasimha Swamy temple road junction in the same Subramanyapura road. Due to the impact of accident the right front wheel of the accused bus ran over the left leg of the rider, who is C.W.3 Hence C.W.3 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 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 Teachers Colony, Banashankari 2nd stage he over take the vehicle and dashed against the Bajaj Pulsar motor cycle bearing registration No.KA-05/HN- 4960 which was proceeding near Sri Lakshmi Narasimha Swamy temple road junction in the same Subramanyapura road. Due to the impact of accident the right front wheel of the accused bus ran over the waist of the pillion rider who is son of C.W.4. Hence C.W.4 sustained grievous injuries and later C.W.4 6 C.C.No.11607/15 succumbed to the injuries, thereby the accused has committed an offence punishable U/s.304(A) of IPC?
4. 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?
5. Whether the prosecution further proves that the accused had overtake the said vehicle on the day of accident, thereby the accused has committed an offence punishable U/s.119 R/w.177 of M.V.Act?
6. What order?
9. My answer to the above points are as under:
1. POINT No.1: IN NEGATIVE
2. POINT No.2: IN NEGATIVE
3. POINT No.3: IN NEGATIVE
4. POINT No.4: IN NEGATIVE
5. POINT No.5: IN NEGATIVE
6. POINT No.6: AS PER THE FINAL ORDER For the following REASONS
10. POINT No.1 to 3: These points are inter related to each other, hence to avoid the repetition of facts, both these points are taken up together for common discussion at one stretch.
7 C.C.No.11607/1511. It is the case of the prosecution that on 12-02-2015 at about 3.45 p.m. the accused being the driver of B.M.T.C. bus bearing registration No.KA- 57/F-592 drove the vehicle in a rash and negligent manner as to endanger human life on Subramanyapura main road. While so driving his vehicle Teachers Colony, Banashankari 2nd stage he over take the vehicle and dashed against the Bajaj Pulsar motor cycle bearing registration No.KA- 05/HN-4960 which was proceeding near Sri Lakshmi Narasimha Swamy temple road junction in the same Subramanyapura road. Due to the impact of accident the vehicle No.KA-05/HN-4960 was damaged and the right front wheel of the accused bus ran over the left leg of the rider, who is C.W.3 and the waist of the pillion rider who is son of C.W.4. Hence C.W.3 & C.W.4 sustained grievous injuries and later C.W.4 succumbed to the injuries. Further 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.279, 338 & 304(A) of IPC, Sec.134(A & B) R/w.187 and Sec.119 R/w.177 of M.V.Act.
8 C.C.No.11607/1512. In order to prove the contents of the complaint, the complainant examined himself as P.W.4 and reiterated the contents of complaint. He has deposed that "¢B 12.02.2015 gÀAzÀÄ ¸ÀªÀÄAiÀÄ ªÀÄzsÁåºÀß 03.15 UÀAmÉAiÀÄ ¸ÀªÀÄAiÀÄzÀ°è £À£Àß vÀªÀÄä£À ¸ÉßûvÀ£À ¸ÉßûvÀ £À£ÀUÉ zÀÆgÀªÁtô PÀgÉ ªÀiÁr £À£Àß vÀªÀÄä¤UÉ C¥ÀWÁvÀªÁVzÉAiÉÄAzÀÄ «ZÁgÀªÀ£ÀÄß w½¹gÀÄvÁÛgÉ. ¸ÀzÀj C¥ÀWÁvÀªÀÅ §£À±ÀAPÀj nÃZÀgïì PÁ¯ÉÆä §½ C¥ÀWÁvÀªÁVgÀÄvÀÛzÉ JAzÀÄ «ZÁgÀªÀ£ÀÄß ¸ÀzÀjzÀAiÀĪÀgÀÄ w½¹gÀÄvÁÛgÉ. «ZÁgÀªÀ£ÀÄß w½zÀ £ÀAvÀgÀ £Á£ÀÄ zÀAiÀiÁ£ÀAzï ¸ÁUÀgï D¸ÀàvÉæUÉ ºÉÆÃVgÀÄvÉÛãÉ. ¸ÀzÀj C¥ÀWÁvÀ £ÀqÉzÀ ¢£ÀzÀAzÀÄ £À£Àß vÀªÀÄä ªÀÄvÀÄÛ ZÁ¸Á 03 gÀªÀgÀÄ ¢éZÀPÀæªÁºÀ£ÀzÀ°è ºÉÆÃUÀĪÁUÀ JzÀÄgÀÄUÀqɬÄAzÀ MAzÀÄ §¸ï CwªÉÃUÀ ªÀÄvÀÄÛ CeÁUÀgÀÆPÀvɬÄAzÀ ZÁ®£É ªÀiÁrPÉÆAqÀÄ §AzÀÄ, ¸ÀzÀj ¢éZÀPÀæªÁºÀ£ÀPÉÌ C¥ÀWÁvÀ ¥Àr¹gÀÄvÀÛzÉ JAzÀÄ ¸ÁªÀðd¤PÀgÀÄ £À£ÀUÉ «ZÁgÀªÀ£ÀÄß w½¹gÀÄvÁÛgÉ. ZÁ¸Á 03 gÀªÀjUÉ PÁ®ÄUÀ½UÉ wêÀæªÁzÀAvÀºÀ UÁAiÀÄUÀ¼ÁVzÀݪÀÅ. £À£Àß vÀªÀÄä D¸ÀàvÉæAiÀÄ°è ªÀÄÈvÀgÁVgÀÄvÁÛgÉAzÀÄ ªÉÊzÀågÀÄ w½¹gÀÄvÁÛgÉ. §¸ï ZÁ®PÀ£À vÀ¦à¤AzÀ ¸ÀzÀj C¥ÀWÁvÀªÁVgÀÄvÀÛzÉ. FUÀ £Áå.zÀ ªÀÄÄA¢gÀĪÀ DgÉÆæ D ¢£À ZÁ®PÀ£ÁVzÀÝ£ÀÄ. zÀÆgÀ£ÀÄß ¤.¦.01 ¸À» ¤.¦.01 J JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. ªÀĺÀdgÀ£ÀÄß ¤.¦.02 ¸À» ¤.¦.02 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. ¤.¦.02 PÉÌ C¥ÀWÁvÀ ¸ÀܼÀzÀ°è £Á£ÀÄ ªÀÄvÀÄÛ ZÁ¸Á 05 gÀªÀgÀÄ ¸À» ªÀiÁrgÀÄvÉÛêÉ. ¤.¦.02 gÀ CA±ÀUÀ¼ÀÄ £À£ÀUÉ w½¢gÀÄvÀÛzÉ. £ÀªÀÄä ¸ÀªÀÄPÀëªÀÄ ¥ÉǰøÀgÀÄ 02 ªÁºÀ£ÀUÀ¼À£ÀÄß ªÀ±À¥ÀrPÉÆAqÀgÀÄ". In his cross-examination by the learned counsel for accused 9 C.C.No.11607/15 he admits that "¤.¦.01 gÀ°è DgÉÆæAiÀÄ£ÀÄß £ÉÆÃrzÉÝÃ£É ªÀÄvÀÄÛ ¸ÀzÀjAiÀĪÀgÀ£ÀÄß £ÉÆÃrzÀgÉ UÀÄgÀÄw¸ÀÄvÉÛãÉAzÀÄ £ÀªÀÄÆzÀÄ ªÀiÁrgÀĪÀÅ¢®èªÉAzÀgÉ ¸Àj. DgÉÆæ ªÁºÀ£ÀzÀ £ÉÆAzÀtô ¸ÀASÉå £À£ÀUÉ £É£À¦®è".
13. P.W.1 is the eye witness who has deposed that "¢B 12.02.2015 gÀAzÀÄ ¸ÀªÀÄAiÀÄ ªÀÄzsÁåºÀß 03.45 UÀAmÉAiÀÄ ¸ÀªÀÄAiÀÄzÀ°è £À£ÀUÉ MAzÀÄ zÀÆgÀªÁtô PÀgÉ ¸ÁUÀgï D¸ÀàvÉæ¬ÄAzÀ 04.30 UÀAmÉAiÀÄ ¸ÀªÀÄAiÀÄzÀ°è §A¢gÀÄvÀÛzÉ. ¸ÀzÀj D¸ÀàvÉæUÉ £Á£ÀÄ ºÉÆÃzÉãÀÄ. ©JAn¹ §¸ï PÉJ 57 J¥sï 592 ªÁºÀ£ÀªÀÅ §AzÀÄ £À£Àß vÀªÀÄä¤UÉ rQÌ ¥Àr¹gÀÄvÀÛzÉ JAzÀÄ £À£ÀUÉ w½¹gÀÄvÁÛgÉ. FUÀ £Áå.zÀ ªÀÄÄA¢gÀĪÀ DgÉÆæ D ¢£À ZÁ®PÀ£ÁVzÀÝ£ÀÄ. DgÉÆæ vÀ¦à¤AzÀ ¸ÀzÀj C¥ÀWÁvÀªÁVgÀÄvÀÛzÉ. £À£Àß vÀªÀÄä£À vÀ¯ÉUÀ ªÀÄvÀÄÛ PÁ°UÉ KmÁVgÀÄvÀÛzÉ £À£Àß vÀªÀÄä£À eÉÆvÉAiÀÄ°èzÀÝ ±ÀgÀvï JA§ÄªÀªÀgÀÄ ¸ÀܼÀzÀ°èAiÉÄà ªÀÄÈvÀ¥ÀnÖgÀÄvÁÛgÉ. In his cross-examination by the learned counsel for accused he has admitted that "¥ÉǰøÀgÀÄ £À£Àß ºÉýPÉAiÀÄ£ÀÄß ¥ÀqÉ¢gÀĪÀÅ¢®è. C¥ÀWÁvÀªÁzÀ 04 ªÀÄvÀÄÛ 05 ¢£ÀzÀ £ÀAvÀgÀ DgÉÆæAiÀÄ£ÀÄß £À£ÀUÉ oÁuÉAiÀÄ°è vÉÆÃj¹gÀÄvÁÛgÉ"
14. P.W.2 is the victim who has deposed that "¢B 12.02.2015 gÀAzÀÄ ¨É½UÉÎ 07.00 UÀAmÉ ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß ¸ÉßûvÀ ±ÀgÀvï ¸ÀħæªÀÄtå¥ÀÅgÀ ªÉÄÊ£ïgÉÆÃqï£À°è ªÀÄ£ÀUÉ »A¢VgÀÄwÛgÀĪÁUÀ ¢éZÀPÀæªÁºÀ£À £ÀAB PÉJ 05 JAºÉZï 4960 ºÉÆÃUÀÄwÛzÉݪÀÅ. ¸ÀzÀj ªÁºÀ£ÀªÀÅ £À£Àß ¥Áæ¸Á 01 gÀªÀgÀzÁVvÀÄÛ. ¸ÀzÀj ªÁºÀ£ÀªÀ£ÀÄß £Á£ÀÄ ZÀ¯Á¬Ä¸ÀÄwÛzÉÝ. ¸ÀzÀj 10 C.C.No.11607/15 ¸ÀªÀÄAiÀÄzÀ°è ©JAn¹ §¸ï §AzÀÄ PÉJ 57 J¥sï 592 ªÁºÀ£ÀªÀÅ £À£Àß ªÁºÀ£ÀPÉÌ «gÀÄzÀÞ ¢QÌ£À°è CwªÉÃUÀ ªÀÄvÀÄÛ CeÁUÀgÀÆPÀvɬÄAzÀ ZÁ®£É ªÀiÁrPÉÆAqÀÄ §AzÀÄ, £ÀªÀÄä ªÁºÀ£ÀPÉÌ rQÌ ¥Àr¹gÀÄvÀÛzÉ. ¸ÀzÀj ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß ¸ÉßûvÀ E§âgÀÄ PɼÀUÉ ©zÉݪÀÅ £À£ÀUÉ ¸ÀzÀj C¥ÀWÁvÀzÀ°è JqÀ PÁ°UÉ ªÀÄvÀÄÛ »AzÀUÀqÉ vÀ¯ÉUÉ ¥ÉmÁÖVvÀÄÛ. £À£Àß ¸ÉßûvÀ¤UÉ ªÉÄʪÉÄÃ¯É §¸ï ºÀjzÀ PÁgÀt ¸ÀzÀjAiÀĪÀgÀÄ ¸ÀܼÀzÀ¯Éèà ªÀÄÈvÀgÁVgÀÄvÁÛgÉ. £À£ÀUÉ YõÁÕ£À«gÀzÀ PÁgÀt D¸ÀàvÉæUÉ AiÀiÁgÀÄ zÁR°¹zÀgÀÄ JAzÀÄ £É£À¦gÀĪÀÅ¢®è. ¸ÁUÀgï D¸ÀàvÉæUÉ zÁR°¹gÀÄvÁÛgÉ. £ÀAvÀgÀ ºÉaÑ£À aQvÉìUÁV £ÀªÀÄævÁ D¸ÀàvÉæ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃzÀgÀÄ. FUÀ £Áå.zÀ ªÀÄÄA¢gÀĪÀ DgÉÆæ D ¢£À ZÁ®PÀ£ÁVzÀÝ£ÀÄ. DgÉÆæ ZÁ®PÀ£À vÀ¦à¤AzÀ ¸ÀzÀj C¥ÀWÁvÀªÁVgÀÄvÀÛzÉ. In his cross- examination by the learned counsel for accused he has admitted that "£Á£ÀÄ ¸ÀzÀj ¥ÀæPÀgÀtzÀ°è ¥ÉǰøÀgÀ ªÀÄÄAzÉ AiÀiÁªÀÅzÉà ºÉýPÉAiÀÄ£ÀÄß ¤ÃrgÀĪÀÅ¢®è. C¥ÀWÁvÀªÁzÀ 25 ¢£ÀzÀ £ÀAvÀgÀ DgÉÆæAiÀÄ£ÀÄß oÁuÉAiÀÄ°è £ÉÆÃrgÀÄvÉÛãÉAzÀgÉ ¸Àj. ¸ÀzÀj §¸ïì£À°è JµÀÄÖ d£À ¥ÀæAiÀÄÁtôPÀjzÀÝgÀÄ JAzÀÄ £À£ÀUÉ UÉÆwÛgÀĪÀÅ¢®è. £À£ÀUÉ PÀ£ÀßqÀ NzÀ®Ä §gÉAiÀÄ®Ä §gÀĪÀÅ¢®è".
15. There are very much contradicting statements between the complainant and eye witness. The contradicting statement gives rise to benefit of the doubt in favour of accused regarding the occurrence of accident. Though the complainant witness has 11 C.C.No.11607/15 supported the prosecution, but investigating officer the very official witness is not examined by the prosecution. The mahazar witness has turned hostile to prosecution. The eye witness does not depose about the rash and negligent drive of the offender vehicle or the vehicle registration number which was involved in the accident. All these above contradicting statements and reason of doubts gives rise that benefit of doubt in favour of accused.
16. The counsel for accused has submitted a citation of Hon'ble High Court of Punjab and Haryana in 1996 Cr.L.J. 2020, which states that, Sec.279, 304(a) - rash and negligent driving - Conviction of accused based on sole testimony of prosecutions - site plan, recovery memo, inspection report of offending vehicle however, no proved by prosecution - These documents could have corroborated testimony of said witness - Further omission on part of prosecution to examine investigation officer without any satisfactory explanation - caused prejudice to accused in his defence - conviction liable to be set aside.
12 C.C.No.11607/1517. Para 12 of said citation reads as follows:
Para 12: Thus, the non-examination of Sub Inspector Ram Chander, the Investigating Officer, is a serious lapse omission on the part of the prosecution. It is important to note that the prosecution has not proved the site plan of the place of the occurrence, the recovery memo, he mechanical inspection report of the vehicle in question and the photographs if any obtained in respect of the place of the occurrence and the dead body. These were the material documents which could have corroborated the testimony of Avdesh Yadav (P.W.2) and would have shown by way of substantial evidence as to whether the truck was being driven in a rash and negligent manner. Neither the Investigating Officer has been examined nor any just and proper explanation has been given for this omission. The various documents stated above have not been proved on record even by secondary evidence by the prosecution for the reason best known to it. The necessary inference is that the petitioner has been prejudiced in his defence on account of this serious lapse/omission on the part of the prosecution.
18. Upon perusing the above citations available materials on record this court is of the opinion that the non-examination of the investigating officer is a serious lapse/omission on the part of the prosecution. It was the duty of the investigating officer to support the prosecution and prove the guilt of the accused. The very I.O. is not examined in this case. Hence non-examination of I.O. has caused 13 C.C.No.11607/15 sever fatal to the prosecution. Hence for the above discussion, this court has answered point No.1 to 3 IN NEGATIVE.
19. POINT No.4: Further it is the case of the prosecution that accused did not provide medical aid to the injured nor he intimated the police about the accident. It is already held that prosecution has failed to prove the guilt of the accused for the offence punishable U/Sec. 279, 338 & 304(A) of IPC. Hence there is no question proceeding against the accused for the offence punishable U/s.134(A & B) R/w Sec.187 of M.V.Act. Hence I answer POINT No.4 IN NEGATIVE.
20. POINT No.5: Further it is the case of the prosecution that the accused had over take the said vehicle on the day of accident. It is already held that the prosecution has failed to prove the guilt of the accused for the offence punishable U/s.279, 338 & 304(A) of IPC. Hence, there is no question proceeding against the accused for the offences punishable U/s.119 R/w.177 of M.V.Act. Hence I answer point No.5 IN NEGATIVE.
14 C.C.No.11607/1521. POINT No.6: In view of the above discussions and findings I proceed to pass the following:
ORDER Accused is acquitted U/s.255(1) of Cr.P.C. for the offences punishable U/s.279 & 338 & 304(A) of IPC, Sec.187 and Sec.177 of M.V.Act.
The bail bond and surety bond of the accused 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 16th day of September 2017).
(GAYATHRI.S.KATE) MMTC - IV, BANGALORE.
ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE PROSECUTION:
P.W.1: Surya P.W.2: Vignesh P.W.3: Manjula P.W.4: Aravind
2) LIST OF DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1: Complaint Ex.P.2: Spot Mahazar Ex.P.3: Inquest Mahazar Ex.P.4: Death memo Ex.P.5: Wound certificate Ex.P.6: P.M. Report Ex.P.7: 133 notice Ex.P.8: Reply 15 C.C.No.11607/15 Ex.P.9: IMV Report Ex.P.10: Log sheet Ex.P.11: Way bill
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:
NIL
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED:
NIL (GAYATHRI.S.KATE) MMTC - IV, BANGALORE.