Bangalore District Court
State By vs Lakshmana Murthy on 1 October, 2015
IN THE COURT OF LVI ADDITIONAL CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-57)
Dated this the 1st day October, 2015
Present : Sri. K.R. Nagaraja, B.A., L.L.B.
LVI Additional City Civil & Sessions
Judge, Bengaluru City.
: SESSIONS CASE NO.57/2014 :
COMPLAINANT : State by:
Madivala Traffic Police Station,
Bengaluru.
(By Sri. S.V. Bhat, Learned Public
Prosecutor )
-V/S-
ACCUSED : Lakshmana Murthy,
S/o Eerappa,
Aged about 18 years,
R/o Boodida Gaddapalli Village,
Boodili Post, Hindupur Taluk,
Gorentlu Mandalam,
Ananthapuram District,
ANDHRA PRADESH.
(By. Sri. Narayanareddy, Advocate).
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1. Date of commission of offence : 21.10.2013
2. Date of report of occurrence : 21.10.2013
3. Date of commencement of evidence: 14.07.2014
4. Date of closing of evidence : 18.03.2015
5. Name of the complainant : PW.3 Devegowda
Judgment 2 S.C.57/2014
6. Offence complained of : U/s 304-II of Indian
Penal Code &
U/Sec.181 r/w Sec.3
and Sec.185 of
M.V.Act, 1988
7. Opinion of the Judge : Offences punishable
U/Sec.304-II of IPC and
U/Sec.185 of M.V.Act
are not proved.
Offences U/Sec.304-A
of IPC & U/Sec.3 r/w
Sec.181 of M.V.Act are
proved.
8. Order of sentence : Accused is sentenced for
rigorous
imprisonment of One Year
and fine of
Rs.5,000/- in default shall
undergo S.I. for one month
for the offence punishable
U/Sec.304-A of IPC and
fine of Rs.500/- in default
shall undergo S.I. for Three
months for the offence
punishable U/Sec.3 r/w
Sec.181 of M.V.Act, 1988.
: JUDGMENT :
Above accused has been facing instant trial for the offences punishable U/Sec.304-II of Indian Penal Code and U/Sec.181 r/w Sec.3 and Sec.185 of Motor Vehicles Act, 1988.
2. The nub of the prosecution case is as follow:-
Judgment 3 S.C.57/2014
Above accused is the younger brother of PW.17 Gangadhara. PW.17 is the R.C. owner of Tata Indica Car bearing Reg.No.KA-42- 3274. Prosecution has alleged that on 21/10/2013 at 1.10 p.m. on 4th Cross Road, 7th Main, Munireddy Layout, Hongasandra, Bengaluru City in front of house of Prema and near the house of PW.10 T.Krishnappa, accused alleged to have driven above noted car of his elder brother in a rash and negligent manner so as to endanger to human life with intoxication and drunken state after consumption of alcohol without possessing licence and with having knowledge that his act of driving would cause death of a human being and accused dashed pulling cart which was using for ironing of cloth and thereafter pedestrian Manjula, who succumbed at the spot to the injury sustained from the said act of accused and thereby accused caused the death of Manjula and committed offence of culpable homicide not amounting to murder. Accused had further alleged to have hit the gate of house of PW.10 Krishnappa. PW.3 Devegowda and PW.5 Mahadeva and other general public, who gathered at the above noted crime scene caught accused, when he attempted to escape by leaving above noted car. PW.3 and PW.5 and other general public alleged to have found that the accused was driving above car at high speed with Judgment 4 S.C.57/2014 full drunken state. It is further case of prosecution that PW.3 Devegowda, first informer and PW.5 Mahadeva alleged to be the eye witnesses to the above act of accused and general public brought accused to Madiwala Traffic police station and produced accused with PW.18 Ravishankar, Police Inspector, Madiwala Traffic police station. PW.3 Devegowda alleged to have lodged First Information Statement as per Ex.P3 on 21/10/2013 at 14.50 hours i.e., 2.50 p.m. praying to initiate action against accused for having caused death of Manjula as a drunken driver and driving with having knowledge that his drunken driving would result death of a human being. PW.18 subjected accused for the analysis of alcometer test and took the alcometer report as per Ex.P2 with the presence of PW.3 Devegowda, first informer and PW.5 Mahadeva eye witnesses. PW.18 found accused had 72 mg. of alcohol out of 100 ml of blood. PW.18 alleged to have taken signatures of PW.3 Devegowda and PW.5 Mahadeva as per Ex.P2(a) and Ex.P2(b) and also signature of accused. PW.18 alleged to have transmitted accused, copies of Ex.P2 and P3 with PW.15 Muralildhara PSI of Madiwala police station. PW.15 Muralidhara PSI, who alleged to have received requisition of PW.18 as per Ex.P16 at 2.50 p.m. on 21/10/2013 along with copies of Ex.P2, Ex.P3, above noted car Judgment 5 S.C.57/2014 which caused the death of Manjula and accused through Narayan ASI of Madiwala Traffic police station, registered crime No.1109/2013 against accused and forwarded First Information Report as per Ex.P17. PW.15 on the same day rushed to crime scene at 4 p.m. where drew panchanama as per Ex.P6 with the presence of PW.3 Devegowda, PW.4 Sannaiah and PW.13 Yeshpal.
PW.15 also prepared rough sketch on the crime scene as per Ex.P5. PW.15 again re-transmitted above records along with accused, Ex.P2, above noted car and his requisition as per Ex.P18 in favour of PW.18. PW.18 K. Ravishankar, police inspector of complainant police station, based on the above materials, again registered a case for investigation in Cr.No.275/2013, on the file of his police station and forwarded First Information Report as per Ex.P1. PW.18 arrested accused and kept him in the custody of the police station. On 22/10/2013, PW.18 rushed near mortuary of Victoria Hospital at 9.30 a.m. where drew inquest panchanama as per Ex.P7 up to 10 a.m. with the presence of Ravi and Shivaraj. PW.18 recorded statements of PW.7 Krishnappa and PW.8 Hanumappa as per Ex.P9 and 10 and also statements of PW.6 Suresh as per Ex.P8 and statements of PW.5 Mahadeva and PW.10 Krishnappa. In between 11.30 a.m. and 12.30 p.m. on Judgment 6 S.C.57/2014 22/10/2013 PW.18 seized above noted car which depicted in Ex.P4 photograph through mahazar. PW.18 produced accused to the judicial custody. On 21/10/2013, accused was alleged to have been sent by PW.15 Muralidhara, PSI of Madiwala police station to Victoria hospital for collection of blood sample. Blood sample of accused through two tubes was taken by PW.16 Dr. Ramesh Victoria hospital on 21/10/2013 and sent said blood sample with seal to PW.18. PW.18 forwarded above sample blood of accused to FSL, Bengaluru through PW.2 B.S. Manjunatha, Police Constable, on 26/10/2013 and obtained acknowledgment as per Ex.P11. On 29/10/2013, PW.18 received post mortem report of deceased Manjuala. PW.14 Dr. Venkataraghava did autopsy on the corpus of Manjula in between 11.30 a.m. and 12.15 p.m. on 22/10/2013 on the requisition of PW.18. PW.12 K. Manjunath, Sr. Motor Vehicle Inspector, office of RTO, Electronic City checked the above noted car on 12/11/2013 in the premises of complainant police station and submitted his report as per Ex.P14. PW.18 after receipt of IMV report as per Ex.P14 on 12/11/2013, reply of PW.17 Gangadhara as per Ex.P20 and his statement as per Ex.P21 on 19/11/2013 and FSL report as per Ex.P12 on 28/11/2013 prepared charge sheet against accused for the offences punishable Judgment 7 S.C.57/2014 U/Sec.3 r/w Sec.181 and U/Sec.185 of M.V.Act and U/Sec.304 of Indian Penal Code alleging that the accused drove above car of his brother in a rash and negligent manner as a drunken driver with having knowledge that his driving would cause death of human being without possessing licence and dashed against pulling cart, and pedestrian Manjula, who succumbed to the injury at the spot and also gate of house of PW.10 T. Krishnappa and thereby accused committed offence of culpable homicide not amounting to murder and other above noted motor vehicle offences. PW.18 forwarded charge sheet prepared by him along with materials collected during the course of his investigation to the jurisdictional Hon'ble committal court.
3. Hon'ble committal court after examination of charge sheet and its supporting materials took cognizance on 23/12/2013 against accused for the offences punishable U/Sec.304 of Indian Penal Code and U/Sec.3 r/w Sec.181 of M.V.Act. Hon'ble committal court after having complied the provision of Sec.207 of Code of Criminal Procedure, committed the case to try accused for the offence punishable U/Sec.304 of Indian Penal Code and U/Sec.3(1) r/w Sec.181 and 185 of M.V.Act through an order dated 6/1/2014. Above case has been registered to try accused Judgment 8 S.C.57/2014 consequent upon committal to the Court of Session and assigned to this court for disposal in accordance with law.
4. After hearing learned public prosecutor and defence counsel, this court found materials to proceed against accused. Accordingly, charge for the offences punishable U/Sec.181 and 185 r/w Sec.3(1) of M.V.Act and U/Sec.304 of Indian Penal Code was framed. Contents of charge were read over and explained to accused. Accused pleaded not guilty and claimed to be tried.
5. Prosecution in order to bring home above alleged guilt of accused got examined 18 witnesses as PW.1 to 8 out of 25 witnesses and got marked 21 documents exhibited as Ex.P1 to P21. Learned public prosecutor gave up CW.10 to 14 and 18. After completion of evidence of prosecution, accused was examined U/Sec.313 of Code of Criminal Procedure. Accused denied all incriminating evidence appeared against him. Learned defence counsel filed written statement of accused U/Sec.233(2) of Code of Criminal Procedure, wherein inter-alia totally denied his involvement to the alleged offence and he claims that he has been falsely roped. Accused did not wish to adduce oral evidence. Judgment 9 S.C.57/2014 Accused got marked 3 documents exhibited as Ex.D1 to D3 through PW.13 Yeshpal.
6. Learned public prosecutor would contend that the materials placed by the prosecution would abundantly establish commission of offence of culpable homicide not amounting to murder punishable U/Sec.304-II of Indian Penal Code and also penal provisions of motor vehicles Act as alleged. He would further contend that the accused with drunken state i.e., state of intoxication without possessing license, drove the offending car of his brother with having knowledge that his act of driving would definitely cause death of human being and caused the death of deceased Manjula and he has also committed other traffic offences.
7. Learned defence counsel would mainly contend that Ex.P2 Alcometer report is not proved as required under law and same is against to the provision of Sec.65-B of the Evidence Act and the medical evidence also probabalize non-existence of intoxication state with accused. He would further contend that PW.3 and 5 are not eye witnesses to the incident and they have been fixed witness for motor vehicles claim. Evidence of PW.3 shows that he did not witness the incident at all. He would further Judgment 10 S.C.57/2014 contend that, if the version of prosecution is believed, nature of injury to deceased and nature of damage to the offending car would not have been occurred, which creates a doubt on the occurrence of incident. He would further contend that, if the version of prosecution is believed from the evidence of its witnesses, accused must have sustained injury. But there is no evidence to show that accused sustained injury in the incident. Defence counsel would further contend that the prosecution suppressed the material facts and deceased should have sustained fracture of upper limb or lower limb of the body, if really accident had occurred in the manner, in which prosecution projected in the present case. Evidence of PW.14 Dr. Venkataraghava is contrary to the opinion of modi medical jurisprudence. He would further contend that tire marks should have been found on the dead body and also colour of the gate should have been found on the offending car. He would contend that the above noted apparent infirmities do probabalize the fact that the accused did not cause the death of deceased through alleged car and he has been falsely implicated. Rest of the contentions urged by defence counsel would be referred in the relevant context. Learned defence counsel ultimately sought to acquit accused for the above offences. He has Judgment 11 S.C.57/2014 placed reliance on the decision of Hon'ble Supreme Court of India reported in 2015(3) S.C.137 in case of Jasbir Singh @ Javri @ Jabbar Singh V/s State of Haryana.
8. Perused the papers.
9. In the light of above materials, following points fall for decision making of this court:-
1. Whether the prosecution proves with all beyond reasonable doubt that accused caused death of Manjula i.e., culpable homicide not amounting to murder on 21/10/2013 at p.m. on 4th Cross Road in front of house of Prema 7th Main, Munireddy Layout, Hongasandra through Indica car bearing Reg.No.KA-42-3274 as a drunken driver with having knowledge that his act of driving with drunken state/intoxication state without possessing license would cause death of human being punishable U/Sec.304-II of Indian Penal Code?
2. Whether prosecution further proves with all beyond reasonable doubt that on the above date time and place accused drove Indica car bearing Reg.No.KA-42-3274 without possessing license and thereby committed an offence punishable U/Sec.3(1) r/w Sec.181 of M.V.Act, 1988?
3. Whether prosecution further proves with all beyond reasonable doubt that on the above date time and place Judgment 12 S.C.57/2014 accused drove the above noted car with state of intoxication and drunken condition and thereby committed an offence punishable U/Sec.185 of M.V.Act, 1988?
4. What order?
10. This court on appreciation of available materials, with reference to prevailing legal aspects and relevant provisions and also case laws cited by defence counsel, give findings to the above points as follows:-
POINT NO.1 - Negative, but prosecution proves that on 21/10/2013 at 1.10 p.m. on 4th Cross, 7th Main in front of house of Smt. Prema, Munireddy Layout, Hongasandga accused caused death of Manjula, which is not amounting to culpable homicide by rash and negligent driving of Indica car bearing Reg.No.KA-42-3274 and thereby committed an offence punishable U/Sec.304-A of Indian Penal Code.
POINT NO.2 - Affirmative;
POINT NO.3 - Negative;
POINT NO.4 - As per final order, on the following;
: REASONS :
11. POINTS 1 to 4:- As these points are interconnected have been discussed together.
Judgment 13 S.C.57/2014
Accused denied the entire version of prosecution. As per prevailing canon of criminal jurisprudence, prosecution to bring home alleged guilt of accused with production of cogent and satisfactory evidence. As noted supra, prosecution relies on oral testimonies of PW.1 to 18 and documents of Ex.P1 to P21. The defence of accused is a total denial of the case of prosecution.
12. Before appreciate the rest of the fact in issue, it is necessary to advert on determination of death of Manjula on 21/10/2013 at 1 p.m. on 4th Cross, 7th Main, in front of house of Prema, Munireddy layout, Hongasandra, Bengaluru. Prosecution has produced inquest panchanama as per Ex.P7. Ex.P7 inquest panchanama has been marked with consent of defence counsel. Thus existence of Ex.P7 is not in dispute. Ex.P7 evidences that investigation officer/PW.18 Ravishankar of complainant police station did inquest panchanama on the corpus of Manjula at mortuary of Victoria hospital, Bengaluru. It also proves the death of Manjula on 21/10/2013. Besides Ex.P15 autopsy report on the corpus of Manjula evidences death of Manjula on 21/10/2013. Ex.P15 is proved from the evidence of PW.14 Dr. Venkataraghava, Professor and Head of the Department of Forensic Medical Science, Judgment 14 S.C.57/2014 Bengaluru Medical College and Victoria Hospital, Bengaluru. PW.14 Dr. Venkataraghava has given evidence to the effect that he did autopsy on the corpus of Manjula at mortuary of Victoria hospital on 22/10/2013 in between 11.30 a.m. and 12.15 p.m. on the request of police inspector of complainant police station. Evidence of PW.14 remained unchallenged on the above noted examination of corpus of Manjula. Defence counsel though attempted to challenge the opinion of PW.14 on the cause of death of Manjula, but did not challenge the factum of death of Manjula. Thus, evidence of PW.14, Ex.P15 autopsy report and Ex.P7 undisputed inquest panchanama abundantly establish the death of Manjula.
13. Prosecution has examined eye witnesses, who witnessed the death of Manjula on 21/10/2013 at 1.10 p.m. PW.3 Devegowda has given evidence to the effect that when he was standing in front of Tailor shop on 7th Cross at Hongasandra, an Indica car hit pulling cart, which used for iron of clothes. and thereafter ran over on Manjula and Manjula died at the spot. PW.3 also given evidence to the effect that the said car was driven by accused with intoxication state of mind and in a rash and Judgment 15 S.C.57/2014 negligent manner. Ascertainment of this fact will be done little later. In so far as factum of death of Manjula on 21/10/2013 at 1.10 p.m. on the above place, evidence of PW.3 is very relevant. Evidence of PW.3 on this fact remained unchallenged. Defence counsel has not disputed death of Manjula on the above noted date, time and place. Defence counsel no doubt sought to discard the evidence of PW.3 as he is not the eye witness to the alleged act. The contentions of defence counsel does not hold water as evidence of PW.3 is believable on the factum of death of Manjula on 21/10/2013 at 1 p.m. at above noted place due to dash of offending car. PW.5 Mahadeva has given evidence to the effect that when he was waiting for a customer as an Auto Driver, on 21/10/2013 at 1 p.m., 7th Cross, an Indica car, which came at high speed, first hit pulling cart, which used for iron of clothes and thereafter ran over on the woman and she died at the spot. Evidence of PW.5 on the factum of death of Manjula on 21/10/2013 at 1 p.m. at above noted material place, remained unchallenged. PW.6 Suresh has given evidence to the effect that when he had been at his Tailor shop near bus stand of Hongasandra on 21/10/2013, at 1 p.m., a car hit woman and said woman died at the spot. Evidence of this witness on the factum of Judgment 16 S.C.57/2014 death of Manjula on the above material date, time and place remained unchallenged. PW.7 Krishnappa who is the owner of stationery shop near bus stand of Hongasandra has given evidence to the effect that when he was in the shop on 21/10/2013 at 2.30 p.m. a car dashed a woman and said woman died at the spot. PW.8 Hanumappa who is having hair cutting saloon at 4th Cross, 7th Main, near bus stand of Hongasandra has given evidence to the effect that on 21/10/2013 a car dashed a woman. PW.13 Yeshpal has given evidence to the effect that a car ran over on the head of Manjula and thereafter hit the gate of a house on 21/10/2013 at 4th Cross of Hongasandra. PW.15 Muralidhara D. PSI of Madiwala police station and PW.18 Ravishankar, police inspector of complainant police station have also given evidence to the effect that Manjula died on 21/10/2013 at 1.10 p.m. due to injury suffered by road traffic accident, which caused by offending car driven by accused. Thus from the above material, it is abundantly established that Manjula died on 21/10/2013 at 1.10 p.m. at 4th Cross, 7th Main, Hongasandra as alleged by the prosecution.
14. Prosecution has to further establish that above death of Manjula was caused by accused. Prosecution relies on oral Judgment 17 S.C.57/2014 testimonies of independent eye witnesses. PW.3 Devegowda has given evidence to the effect that an Indica car which driven by accused hit pulling cart, which used for iron of clothes and thereafter it ran over Manjula and general public, who gathered at crime scene pulled accused from the car and accused was in a state of intoxication and drunken state and same was confirmed by police through the instrument. Evidence of PW.3 tested in the cross-examination. In the cross-examination, it is elicited that PW.3 has not placed any material to show that his wife Sukanya and deceased Manjula were working at Sai Factory. He has admitted that Manjula was the native of his village. He was doing vegetable business near bus stand of Hongasandra. PW.3 has admitted that at first time, he has stated before court that he was standing in front of Tailor shop and he did not state before police that car ran over on Manjula and hit pulling cart and he stated the same at first time before court and he also states before court at first time that the general public who gathered pulled accused who was a driver of the car from the car. In the entire cross- examination of PW.3, nothing is elicited to disbelieve the presence of PW.3 at the time of incident. There is some exaggeration in the evidence of PW.3 on the nature of occurrence of incident. But Judgment 18 S.C.57/2014 evidence of PW.3 to the effect that accused was driving the Indica car, which caused accident and also death of Manjula remained unshaken. Therefore, oral testimony of PW.3 is credible to believe the existence of fact that accused drove the above noted car of his younger brother and caused the death of Manjula.
15. During the course of argument, learned defence counsel would contend that evidence of PW.3 to be discarded as probable resultant would have been otherwise, if version of PW.3 on the nature of incident is believed. It is true that there were no multiple injuries on the body of deceased Manjula. It is the version of PW.3 that offending car driven by accused was ran over on deceased. If that were to be the true version, deceased Manjula should have been sustained multiple injuries in her body. Indisputably, PW.3 is an illiterate and he has no wordly knowledge. Perceiveness of any fact from human being to be appreciated with the social background of that person. Perceiveness of human being changes to person to person. PW.3 might have perceived that car ran over Manjula as Manjula died at the spot after dash from the car. He might have perceived that sudden fall of body of Manjula due to hit of accident, due to ran over on the body. PW.14 Judgment 19 S.C.57/2014 Dr. Venkataraghava has categorically stated that deceased sustained fracture of right and left temporal bones as described in his report and said injuries could be caused if Manjula subjected to road traffic accident. PW.14 has categorically denied the suggestion that "EArPÁ PÁgÀÄ F ªÀÄ»¼ÉUÉ rQÌ ªÀiÁrzÀÝgÉ, rQÌUÉÆAqÀ zÉúÀzÀ ¨sÁUÀzÀ ªÀiÁA¸ÀRAqÀ ZÀzÀÄj MqÉAiÀÄÄvÀÛzÉ, ªÀÄƼÉUÀ¼À ªÀÄÄjvÀ GAmÁUÀÄvÀÛzÉ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è, ¸ÁQë ¥ÀÅ£ÀB ªÀÄÄAzÀĪÀjzÀÄ F jÃwAiÀÄ ¸ÀAzÀ¨ÀsðzÀ°è ªÉÄîÌAqÀ ¸ÀégÀÆ¥ÀzÀ UÁAiÀÄUÀ¼ÀÄ GAmÁUÀĪÀ ¸ÁzÀsåvÉ EgÀĪÀÅ¢®è, PÁgÀt rQÌUÉÆAqÀ §®zÀ DzsÁgÀªÀ£ÀÄß ºÉÆA¢gÀÄvÀÛzÉ C£ÀÄßvÁÛgÉ.". In the light of above medical opinion, aforementioned contention of defence counsel for non- occurrence of the incident as projected by the prosecution does not hold water. Viewed from any angle, evidence of PW.3 does not suffer from any infirmity and contradictions. Thus evidence of PW.3 is reliable and believable to come to the conclusion that accused was the driver of the offending Indica car and he caused the death of Manjula.
16. PW.5, Mahadeva who is also another eye witness to the incident has given evidence in the same line of PW.3. PW.5 Judgment 20 S.C.57/2014 has categorically stated that accused was driving the offending car, which caused the death of Manjula and accused was fully state of intoxication and drunken condition and he also identified the car in Ex.P4 photograph, which driven by accused. Evidence of PW.5 also tested in the cross-examination. PW.5 has admitted that he talked with Ravi, husband of Manjula, at the outside of the court hall on the day on which he gave evidence. PW.5 has denied the suggestion that he did not make statement with police to the effect that Indica car, which was at high speed hit pulling cart and thereafter it ran over a woman and hit a gate of the house. Indisputably, there are no omissions and contradictions have been got marked through investigation officer by the defence counsel. Even assuming that the evidence of PW.5 on the manner of accident appears to be exaggerative, but disputed fact is clear that the accused was a driver of the offending car and he was driving the same and caused death of Manjula. Merely because, PW.5 talked with husband of deceased Manjula on the date of giving evidence before court, it does not mean that evidence of PW.5 to be discarded. In the evidence of PW.5 nothing worthwhile is elicited to disbelieve his version. Substantive evidence of PW.5 is also Judgment 21 S.C.57/2014 believable and credible. Evidence of PW.5 further fortifies that the accused being driver of above car caused the death of Manjula.
17. PW.6, Suresh who is having a tailor shop near the place of incident, while admitting the death of a woman due to hit by the car gave ignorance to the effect that who was the driver of the said car. Evidence of PW.6 though not supports the prosecution, on the fact that accused caused death of Manjula, but establishes the occurrence of incident. PW.7 Krishnappa, who is also holder of ration shop near the place of occurrence has given evidence to the effect that a car hit a woman on 21/10/2013 at 2.30 p.m. while he was in his ration shop and general public, who gathered caught accused from the car as he was a driver and he did not see, who was the driver of the said car. Learned public prosecutor treated PW.7 as a hostile witness as he failed to support the prosecution on the identity of the accused. In the cross- examination of defence counsel, PW.7 has admitted that the accused was working in a hotel and he saw the accused when general public caught him and general public caught accused on the premises that he caused accident through car. Though PW.7 partially turned hostile, his presence at the time of accident is not Judgment 22 S.C.57/2014 challenged. Evidence of PW.7 on the presence of accused at the time of incident is also not in dispute. Evidence of PW.7 as a corroborative piece of evidence is helpful to the prosecution to hold that general public held the accused as he caused the death of deceased. It is not elicited, who was the actual driver of the car at that time. Therefore, based on evidence of PW.7, it cannot be said that accused was not the driver of the car. On the other hand, it is to be held that evidence of PW.7 is helpful to the prosecution as a corroborative piece of material that the accused was driver of the car and he caused the death of Manjula. PW.8 Hanumappa, who is having hair cutting shop near place of accident has given evidence to the effect that a car caused the accident to a woman on 21/10/2013 and he did not witness the driver of the car and also incident. Evidence of PW.8 is not helpful to the prosecution as he turned hostile. PW.13 Yeshpal has given evidence on the effect that car ran over on a woman and it hits the gate of the house on 21/10/2013 at above material place and he identified the said car in a photograph Ex.P4. It is important to note that defence counsel has not elicited any ire or animosity of above noted independent prosecution witnesses against accused. Therefore, evidence of above independent witnesses, supported version of Judgment 23 S.C.57/2014 prosecution is trustworthy and reliable. Thus the evidence of above independent eye witnesses abundantly establish that accused was driving offending Indica car at the time of incident and he caused the death of deceased Manjula.
18. PW.14 Dr. Venkataraghava has categorically stated to the effect that Manjula died due to shock and hemorrhage as a result of fracture of left and right temporal bones i.e., head injury. He has also admitted that there was no chance of death due to rest of injuries found on the dead body. He has also given alternative opinion that abrasion would be caused, if a man fall on hard surface.
19. Learned defence counsel would contend that the opinion of PW.14 on likelihood of cause of injury found on the deceased is contrary to the opinion of medical jurisprudence. He would contend that deceased must have received multiple injuries if evidence of eye witnesses are believed on the nature of incident. In the light of above discussion it cannot be said that there was no chance of cause of injuries, which found on the dead body of Manjula. Defence counsel has pressed into service Page-393 and 394 of Modi Jurisprudence at Chapter-XIV regarding traffic Judgment 24 S.C.57/2014 injuries. Learned author has classified the injuries sustained by pedestrians due to impact of the vehicle. It is clearly opined that fracture of lower and upper limb of pedestrian will be occurred depends upon the force of the vehicle. Further injury results depends upon nature of position of pedestrian at the time of contact of vehicle. Merely because above eye witnesses perceived the manner of accident in their way and ability of understanding, it cannot be said that offending car did not hit the deceased Manjula. Defence has not probabalize any circumstances, under which deceased Manjula received injury and succumbed to them. In the absence of any material, determination of otherwise cause of death of Manjula is not warranted. Therefore, it cannot be said that the above opinion of doctor is contrary to the opinion in Modi's Medical Jurisprudence.
20. Learned defence counsel would further contend that the offending car should have received the colour of the gate of the house and dead body of deceased Manjula should have possessed the tire marks if at all car ran on her. Merely because, PW.3 and PW.5 who are illiterate and poor wordly knowledge persons gave version to the effect that offending car ran over Manjula, it does Judgment 25 S.C.57/2014 not mean that incident had occurred in the same way. PW.3 and 5 might have perceived the nature of incident in such manner to their best of knowledge. Infact above noted other witnesses namely PW.7 Krishnappa and other witnesses who turned hostile on identity of accused have stated that car hit deceased Manjula. These persons being owners of ration shop, tailor shop and hair cutting saloon have wordly knowledge have perceived the above manner of accident. From the evidence of all these witnesses, one thing is very clear that accused was a driver of the car and said car hit deceased Manjula and Manjula died at the spot and due to the act of accused alone, death of Manjula was occurred. Merely because there were no tire marks on the dead body of the deceased and no colour found on the offending car, it does not mean that the existence of occurrence of incident to be discarded. In the result, above contention of defence counsel does not hold water.
21. In the light of above discussion, it is abundantly with all beyond reasonable doubt clear that accused caused the death of Manjula through offending car as a driver. There are no grounds whatsoever made out by accused to disprove the above established fact.
Judgment 26 S.C.57/2014
22. Prosecution to bring home the accused for the alleged guilt has to further establish that accused with knowledge that his act would cause death of human being had caused the death of Manjula. Knowledge implies consciousness of a further contingency i.e., such knowledge as a person in his position might be expected to possess. It is common knowledge that particular person is likely to die. This inference is called the knowledge i.e., knowledge in its wide sense. It is incapable of direct proof. It takes into account not only knowledge but also means of knowledge not only the knowledge but which judging from the effect ought to have been in him. The standard is of a reasonable man, whether as a reasonable man he could have had that knowledge. For this purpose, the act itself is to real test.
23. In the case on hand, prosecution has alleged that the accused with drunken and intoxication state had knowledge that his driving with state of intoxication and drunken condition would cause death of human being. To prove the drunken and intoxication state of accused at the time of incident, prosecution relied on Ex.P2 Alcometer analysis report and Ex.P12 FSL report and evidence of PW.9 V.G. Nayak, Assistant Director of FSL and Judgment 27 S.C.57/2014 evidence of PW.18 Ravishankar who is the investigation officer. Indisputably, accused red handed at 1.10 p.m. at the place of incident by general public, including PW.3 and 5. It is the version of prosecution as evident from the material on record that accused was in the custody of PW.18 after he was produced by PW.3 and PW.5. PW.3 and 5 and other witnesses have stated that police were called through phone to the place of incident and police arrived to the place of incident. As per prosecution story, accused was produced by PW.3 and 5 to the complainant police station at 2.50 hours. There is no reason forthcoming for non subjecting accused for alcoholic analysis test till 3 p.m. Ex.P2 shows that analysis was made at 3 p.m. on 21/10/2013. PW.18 has admitted that Ex.P2 was taken from Alcometer which is an electronic device. Information of Ex.P2 contains printed information and written information. As per Ex.P16, PW.18 forwarded accused along with Ex.P2 through ASI for necessary action. In turn, as per Ex.P18, police inspector of Madiwala police station requested PW.18 to register and take action. As per Ex.P2 alcometer report alleged to have been subjected to accused at 3 p.m. At the same time, accused and other reports were submitted to PW.15 Muralidhara PSI of Madiwala police station for necessary action. Indisputably, Judgment 28 S.C.57/2014 Ex.P2 which is a document taken from electronic device has not been certified from the person concerned as required U/Sec.65-B of the Indian Evidence Act. There is no explanation either from PW.15 Muralidhara, PSI of Madiwala police station and PW.18 Ravishankar, police inspector of complainant police station for delay in subjecting accused for alcometer analysis test. Ex.P2 has been filled with the name of accused, name of the car and also name of police station. All information should have been got through printed from the Alcometer. When other information i.e, quantum of alcohol in the blood could be got through printed materials, the rest of the information should have been also got through print. Ex.P2 shows that the accused had 72 mg of alcohol per 100 ml of blood. Sample blood of the accused was alleged to have taken at Victoria hospital from PW.16 Dr. Ramesh. He has given evidence to the effect that he took blood from the accused on 21/10/2013 and accused was produced by police and said blood was sent to FSL, Bengaluru. Ex.P12 is the report of FSL. PW.9 V.G. Nayak has given evidence to the effect that he subjected sample blood for chemical analysis on the request of police and found presence of traces of Ethyl alcohol in the blood. Learned doctor has stated that sample blood which forwarded to FSL was Judgment 29 S.C.57/2014 not contained information that said blood was taken from accused Lakshmana Murthy and it was sealed. Learned doctor states that the medicines, which will be consumed by him being also contains alcohol. Ex.P12 FSL report, which proved from evidence of PW.9 does not say the quantum of alcohol in the blood of accused. From the evidence of PW.16 Dr. Ramesh, it is clear that the blood of accused was taken by PW.16 and it was sent to FSL for analysis. Though learned defence counsel attempted to show otherwise to the court but evidence of PW.16 Dr. Ramesh and above noted document show that blood of accused was sent to FSL for analysis test. Ex.P12 does not say the quantum of alcohol contained in the blood of accused. As per provision of Sec.185 of M.V.Act, to call driver as a drunken person, he must have alcohol existing 30 mg per 100 ml in his blood which can be detected in a test by breath analyzer. Though Ex.P2 shows that accused had 72 mg of alcohol per 100 ml of blood, but it not proved as required U/Sec.65-B of Evidence Act and as a genuine test report made by competent breath analyzer. PW.18 Ravishankar, Police Inspector has admitted that he did not certified Ex.P2 as required U/Sec.65-B of Evidence Act. Therefore, viewed from any angle, Ex.P2 cannot be considered to believe the existence of fact that the accused was in Judgment 30 S.C.57/2014 drunken state of mind and he drove the car as a drunken person at the time of incident.
24. Although PW.3 and 5 and PW.18 have stated that the accused was in drunken condition, but their evidence is not supported by medical evidence. Thus the prosecution failed to establish the fact that accused was at the intoxication or drunken state of mind at the time of incident.
25. When the prosecution failed to establish that the accused was in intoxication state of mind at the time of causing accident, it cannot be said that accused had knowledge that his act of driving of offending car cause death of human being. Therefore, it cannot be held that accused is liable to be convicted for Part-II of Sec.304 of Indian Penal Code.
26. This court has to further appreciate whether established existence of facts would attract which offence under Indian Penal Code. In the light of above discussion, it cannot be held that death of Manjula is a culpable homicide. The death of Manjula due to the act of accused through offending car is abundantly established. Prosecution has placed ExP5 rough Judgment 31 S.C.57/2014 sketch at the crime scene. Contents of Ex.P5 rough sketch is proved from the evidence of PW.3 and 5. All the above noted eye witnesses have categorically stated that the accused first hit pulling cart and then pedestrian Manjula and gate of the house. The evidence of PW.3 and 5 abundantly establish that the accused was driving the offending car at high speed and caused the accident. Accused first hit pulling cart at left side of footpath and hit the pedestrian Manjula and thereafter hit the gate of a house. Evidence of PW.3 and 5 on the way in which accused caused accident is believable. Their evidence clearly show that accused caused accident in a rash and negligent manner. Evidence of PW.3 also proves Ex.P6 Mahazar. He denies the suggestion that he signed mahazar at police station. PW.2 Manjunath also states on the place of occurrence regarding physical features at the spot. PW.5 Mahadeva also has stated the manner in which accident occurred. PW.13 Yeshpal has given cogent evidence on the physical features of crime scene. He has also admitted Ex.D1 to D3 photographs pertain to the place of occurrence. He has stated that place of occurrence is not visible to a person who stands at 7th Main Road. This evidence of PW.13 is not helpful to the accused to hold that he was not negligent in his driving. In fact, Ex.P5 and 6 Judgment 32 S.C.57/2014 rough sketch and mahazar prepared by PW.15 Muralidhara, PSI of Madiwala police station. He has reiterated the same before court. In the cross-examination of PW.15, nothing is elicited to discard the above evidence on the existence of physical features at the spot. If evidence of above witnesses and above noted factors are considered in the light of doctrine of res-ipsa-loquitur it is to be held that accused was in rash and negligent driving and with his rash and negligent act only the accident occurred and death of Manjula was caused. The rash and negligent act to be inferred on the basis of credible evidence of PW.3, PW.5 and PW.15. There are no grounds whatsoever to hold that there was no rash and negligent act of accused while driving the car in question. Indisputably, as per the evidence of PW.12 K. Manjunath and Ex.P14 offending car do not suffer any mechanical defect. Indisputably, accused has not offered any defence within his knowledge for cause of accident. In the absence of any defence based on above noted abundant material, this court has to hold the accused guilty for his rash and negligent driving. Ex.D1 to D3 does not support the accused to disprove the above established case of prosecution. Involvement of the offending car for cause of accident is also abundantly proved from above noted independent Judgment 33 S.C.57/2014 witnesses and police officers. The above decision which pressed into service by trhe counsel for the accused which lays down settled principle will not render any assistance to absolve the accused for above established criminal liability. Involvement of accused for cause of accident through the offending car and also cause of death of Manjula is also established with all beyond reasonable doubt. With these materials, this court has to draw irresistible conclusion that accused caused death of Manjula due to his rash and negligent driving of car bearing Reg.No.KA-42-3274 belonged to his younger brother PW.17 Gangadhara.
27. It is established that the accused has no driving license at the time of accident. In the result, accused is liable to be convicted U/Sec.3 r/w Sec.181 of M.V.Act. Prosecution fails to prove that the accused committed offence U/Sec.185 of M.V.Act. Although, prosecution fails to prove the guilt of accused for the offence punishable U/Sec.304-II of Indian Penal Code, but they able to prove guilt of accused for the offence punishable U/Sec.304-A of Indian Penal Code. There is no wrong in convicting accused for the lesser offence in the absence of charge. Viewed from any angle, it is impossible to absolve the accused for Judgment 34 S.C.57/2014 above established criminal liability. Accordingly, point No.4 in the above manner, point No.2 in the affirmative and point NO.3 in the negative are answered.
28. POINT NO.4:- In the light of finding on above point, accused to be acquitted for the offence punishable U/Sec.304-II of Indian Penal Code and U/Sec.185 of M.V.Act and he should be convicted for the offence punishable U/Sec.304-A of Indian Penal Code and U/Sec.3 r/w Sec.181 of M.V.Act. It is also important to note that having taken cognizance on the age of the accused and there was no previous conviction by any court of law, it is proper to sentence accused with imprisonment for 6 six months and fine of Rs.5,000/- for the offence punishable U/Sec.304-A of Indian Penal Code. He should be sentenced in the below manner for the above noted traffic offence. Accordingly, this court proceeds to pass following;
ORDER In exercise of power vested with this court U/Sec.235(1) of Criminal Procedure Code, it is ordered that accused is acquitted for the offence punishable U/Sec.304-II of Indian Penal Code and U/Sec.185 of M.V.Act.
Judgment 35 S.C.57/2014
In exercise of power vested with this court U/Sec.235(2) of Code of Criminal Procedure, it is ordered that the accused is convicted for the offences punishable U/Sec.304-A of Indian Penal Code and U/Sec.3 r/w Sec.181 of M.V.Act.
Accused is sentenced for rigorous imprisonment for One Year and fine of Rs.5,000/- in default shall undergo simple imprisonment for Three months for the offence punishable U/Sec.304-A of Indian Penal Code.
Accused is further sentenced for fine of Rs.500/-, in default shall undergo Simple Imprisonment for Three Months for the offences punishable U/Sec.3 r/w Sec.181 of M.V.Act, 1988.
Accused is set at free for the offences punishable U/Sec.304-II of Indian Penal Code and U/Sec.185 of M.V.Act.
Accused is given benefit of set off for his above sentence on his period of custody as an under trial prisoner from 22/10/2013 to 18/1/2014.
In exercise of power vested with this court U/Sec.357(3) of Code of Criminal Procedure, it is ordered that accused shall pay compensation of Rs.1,00,000/- (Rupees One Lakh Only) in favour of CW.13 Ravi, husband of deceased Manjula and 3 Judgment 36 S.C.57/2014 children of Manjula namely, Shruthi, Shivaraju and Sunil.
(Dictated to the Stenographer, transcript thereof is corrected and then pronounced by me in the open court on this the 1st day of October, 2015.) (K.R. Nagaraja,) LVI Additional City Civil & Sessions Judge, Bengaluru City.
ANNEXURE
LIST OF WITNESSES EXAMINED FOR PROSECUTION
PW.1 Vishwanath Y.G. P.C.10723
PW.2 Manjunath, P.C.10724
PW.3 Devegowda
PW.4 Sannaiah
PW.5 Mahadeva
PW.6 Suresh
PW.7 Krishnappa
PW.8 Hanumappa
PW.9 V.G. Nayak
PW.10 T. Krishnappa
PW.11 Ramesha
PW.12 K. Manjunath
PW.13 Yash Pal
PW.14 Dr. Venkataraghava
PW.15 Muralidhara. D. PSI
PW.16 Dr. R. Ramesh
PW.17 Gangadhara. M
PW.18 Ravishankar P.I.
LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION:
Ex.P1 First Information Report Judgment 37 S.C.57/2014 Ex.P1(a) Signature of PW.18 Ex.P2 Alcometer report Ex.P2(a) Signature of PW.3 Ex.P2(b) Signature of PW.5 Ex.P2(c) Signature of PW.18 Ex.P3 Complaint Ex.P3(a) Signature of PW.3 Ex.P3(b) Signature of PW.18 Ex.P4 Photo of car Ex.P5 Sketch Ex.P5(a) Signature of PW.15 Ex.P6 Mahazar Ex.P6(a) Signature of PW.3 Ex.P6(b) Signature of PW.13 Ex.P6(c) Signature of PW.15 Ex.P7 Inquest mahazar Ex.P7(a) Signature of PW.18 Ex.P8 Statement of PW.6 Ex.P9 Statement of PW.7 Ex.P10 Statement of PW.8 Ex.P11 Sample seal Ex.P12 FSL report Ex.P12(a) Signature of PW.9 Ex.P12(b) Signature of scientific officer Ex.P12(c) Signature of director of FSL Ex.P13 Seizure mahazar of vehicle Ex.P13(a) Signature of PW.10 Ex.P13(b) Signature of PW.11 Ex.P14 Motor vehicles accident report Ex.P14(a) Signature of PW.12 Ex.P15 Post mortem report Ex.P15(a) Signature of PW.14 Ex.P16 Report Ex.P16(a) Signature of PW.15 Ex.P17 FIR Ex.P17(a) Signature of PW.15 Ex.P18 Report Ex.P18(a) Signature of PW.5 Ex.P19 133 notice Ex.P19(a) Signature of PW.17 Ex.P20 Report of owner Judgment 38 S.C.57/2014 Ex.P20(a) Signature of PW.17 Ex.P21 Statement of PW.13
LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
-NIL-
LIST OF DOCUMENTS EXHIBITED FOR ACCUSED :
Ex.D1 to D3 Photos.
(K.R. Nagaraja,) LVI Additional City Civil & Sessions Judge, Bengaluru City.