Bangalore District Court
Mesheer Vaswani S/O Suresh Vaswani vs State By Airport Traffic Police on 19 February, 2016
IN THE COURT OF THE LX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU
(CCH-61)
Dated this the 19th day of February 2016
:Present :
Sri B.Jayantha Kumar, B.A.,Law, LL.M.
LX Addl. City Civil & Sessions Judge,
Bengaluru.
Crl. Appeal. No. 465 / 2015
Appellant : Mesheer Vaswani S/o Suresh Vaswani
Villa No.326, Adarsh Palm Retreat
Devarabisanahalli
Outer Ring Road
Bangalore.
(Rep by Lawyers Inc, Advocates and
Solicitors)
Vs
Respondent: State by Airport Traffic Police
Old Air Port Road
Bangalore.
(Rep by Public Prosecutor)
JUDGMENT
This appeal is filed u/sec. 374(3) of Cr.P.C. challenging the judgment dated 05.03.2015 passed by the MMTC-VI, 2 Crl. A. No.465/2015 Bengaluru City in C.C.No.1453/2012 convicting the appellant/ accused for the offence punishable u/s.279 and 338 of IPC and sentencing him to pay a fine of Rs.1,000/- each for the offences punishable U/Sec.279 and Sec.338 of IPC and in default to undergo simple imprisonment for one month each.
2. The appellant is accused and respondent herein is the complainant represented by Air Port Traffic Police station. Hereinafterwards, the parties are referred to as per their ranks assigned to them before the lower court.
3. The brief facts leading to this appeal are as follows:-
Complainant Ramanju.V. filed a complaint before the Airport Traffic police station alleging that on 3.5.2012 at about 10.00 a.m., when he was moving towards Bellanduru from Yemaluru on Yemaluru tank bund in the motor cycle bearing No.KA-53-V-8570 as pillion rider, one Tata Nano car bearing No.KA-51-Z-7355 came in rash or negligent manner and dashed 3 Crl. A. No.465/2015 against the motor cycle wherein the petitioner was travelling and as a result, CW2 Gangaiah had sustained grievous injuries on his right leg. On the basis of this complaint, police registered a case in Cr.No.57/2012 and took up investigation and during the course of investigation, the police drew spot mahazar of the place of occurrence and prepared sketch of the place of occurrence and seized the vehicles and subjected to motor vehicle inspection and obtained wound certificate of PW2 and motor vehicles accident report and after recording of statement of witnesses and after completion of investigation formalities, filed charge sheet against the accused for the offences punishable U/Sec. 279 and 338 of IPC. After the trial, the lower court has convicted the appellant/accused vide its judgment dt.5.3.2015 and passed sentence as aforesaid for the offences punishable U/Sec. 279 and 338 of IPC.
4. Feeling aggrieved by the impugned judgment and sentence passed, the accused preferred this appeal inter-alia 4 Crl. A. No.465/2015 contending that the reasons assigned by the lower court are perverse, illegal and opposed to the facts and probabilities of the case and the lower court has failed to notice the serious contradictions in the oral as well as documentary evidence. The lower court has grossly erred in not appreciating the serious contradiction between the age of the wound as per wound certificate and the oral evidence adduced regarding the time of accident. The lower court has grossly erred in not noticing the serious doubts arose regarding the cause of the accident having regard to the facts disclosed during the course of evidence and lacunas in the investigation. The lower court has seriously erred in arriving at the conclusion that the appellant was driver of the car on the date, time and at the place of accident. The lower court has erred in passing the order of conviction, while there is no investigation conducted as per the provisions of police manual. The lower court has grossly erred in relying upon Ex.P.9 IMV report without giving an opportunity 5 Crl. A. No.465/2015 to the appellant to cross-examine the relevant witness who prepared the report. The lower court has committed illegality in accepting the IMV report solely and without examining the Inspector of Motor Vehicles. The lower court has grossly erred in not noticing that if really the appellant overtook any vehicle and caused head on collision, then the center of the car would be hit and not the right side of the car. The lower court has grossly erred in accepting the evidence of PW4 to come to the conclusion that the appellant has caused the accident despite the fact that the PW4 has not seen the occurrence by his own admission. The lower court has grossly erred in convicting the appellant for the offences punishable U/Sec. 279, 338 of IPC and the judgment suffers from serious legal infirmities and liable to be set aside. Hence, prayed for setting aside the judgment passed by the lower court.
6 Crl. A. No.465/2015
5. After filing of this appeal, this court issued notice to the respondent, who put his appearance through Public Prosecutor and records of lower court are secured.
6. Heard the arguments of learned counsel for appellant and learned Public Prosecutor.
7. In the light of the contentions taken up in the memorandum of appeal, the points that arise for my determination are as follows;
1) Whether the court below has committed an error of law and facts in convicting the appellant/accused solely relying on the evidence of PW1, PW2 and PW4 and documents produced by the prosecution?
2) Whether the lower court has committed an error in convicting the appellant/accused, even though he was not the driver of 7 Crl. A. No.465/2015 the car at the particular point of time?
3) Whether the lower court has committed an error of law and facts in convicting the accused even though the prosecution has not examined the Motor Vehicles Inspector?
4) What order?
8. My findings on the above points are as follows:
Point No.1 : In the Negative
Point No.2 : In the Negative
Point No.3 : In the Negative
Point No.4 : As per final Order
REASONS
9. Point Nos.1 to 3:- The prosecution has alleged that the complainant Ramanju.V. has filed a complaint before the Airport Traffic police station alleging that on 3.5.2012 at about 10.00 a.m., when he was moving towards Bellanduru from 8 Crl. A. No.465/2015 Yemaluru on Yemaluru tank bund in the motor cycle bearing No.KA-53-V-8570 as pillion rider, one Tata Nano car bearing No.KA-51-Z-7355 came in rash and negligent manner and dashed against the motor cycle wherein the petitioner was travelling and as a result, CW2 Gangaiah had sustained grievous injuries to his right leg.
10. In order to prove the case of the prosecution, the prosecution has examined all together five witnesses as PW1 to PW5 and got marked Ex.P.1 to 9. Ex.P.1 is the complaint lodged by complainant Ramanju.V., Ex.P.2 is the spot mahazar, Ex.P.3 is the statement of PW4, Ex.P.4 is the wound certificate, Ex.P.5 is the notice issued by I.O. to the owner of the Nano Car, Ex.P.6 is the letter given by the owner of the car, Ex.P.7 is the FIR, Ex.P.8 is the sketch of the spot of occurrence and Ex.P.9 is the motor vehicles accident report. 9 Crl. A. No.465/2015
11. It is alleged by the prosecution that the accident occurred due to rash and negligent driving of Nano Car by the accused. CW1 Ramanju.V. examined as PW1. In his evidence, he has deposed that on 3.5.2012 at 10.00 a.m, when he was proceeding in the bike of his brother on Yemaluru tank bund, towards Electronic city, one car bearing No.KA-51-Z-7355 came from opposite direction and dashed against their bike and he and his brother fell down and his brother sustained fracture injury on his right leg and then shifted his brother to Apollo Hospital and thereafter to Hosmat Hospital for treatment. He has also deposed that he gave complaint as per Ex.P.1 and the police came to the spot and drew mahazar Ex.P.2. He has also identified the accused before the court and said that he is the person who drew the car at the time of accident. Learned counsel for the accused cross-examined this witness. During the course of cross-examination, he has deposed that one Shivakumar and Govindappa were coming behind them in their 10 Crl. A. No.465/2015 two wheeler vehicle at the time of accident and there were other publics moving on the road at the time of accident. In his cross-examination, he has deposed that the accused came from opposite direction in his car and by overtaking other vehicles, he came and hit to their bike. He has further deposed that they took his brother to the hospital in a tata sumo vehicle. A suggestion was put to PW1 that the accident occurred due to the rash and negligence on the part of his brother and the same was denied by PW1.
12. PW2 Gangaiah is the injured person. He has also deposed about the accident. He has further deposed that Nano Car came in over speed and in the process of overtaking other vehicles came to the right side and hit to the bike. He has further deposed that he was taken to Apolo Hospital for treatment in Tata Sumo vehicle. He has also identified the accused by saying that he was the driver of the car. During the course of cross-examination, a suggestion was put to PW2 that 11 Crl. A. No.465/2015 he fell down and sustained injury due to rash and negligent riding of bike.
13. One Shivakumar is examined as PW3. He has deposed about the mahazar Ex.P.2. During the course of cross- examination, he has categorically stated that he signed Ex.P.2 at the spot. A suggestion was put to PW2 that he signed Ex.P.2 in the police station. But PW3 has denied the same.
14. CW4 Govinda is examined as PW4. In his evidence, he has deposed that when he was moving on Yamaluru Tank bund, towards Hosuru in his two wheeler vehicle on 3.5.2012 at about 9.30 a.m, one car came to the right side and hit to two wheeler vehicle of CW2. He has further deposed that the rider and pillion rider fell down and CW2 sustained injury on his right leg. He has deposed that he did not see how the driver was driving the car. When the learned Public Prosecutor cross- examined this witness, he has denied that he gave statement 12 Crl. A. No.465/2015 before the police that the car was driven by the accused in rash and negligent manner.
15. CW8 Revanna is examined as PW5. He has deposed about registration of the case, conducting of investigation and filing of charge sheet. Sketch of the spot of occurrence and Motor vehicles accident report are marked through this witness.
16. In this case, the prosecution has not examined the Motor Vehicle Inspector. Though the lower court issued summons, CW7 remained absent. Therefore, his evidence is not available in the record. Learned Public Prosecutor has vehemently argued that the prosecution by examining the witnesses proved that the accused was driving Nano Car and because of his rash and negligent driving of the car, the accident occurred. It is pertinent to note that the Accused has not disputed the accident and involvement of the vehicle in question, but only denied his rash and negligent driving of Car. Therefore, accused has to explain under what circumstances, 13 Crl. A. No.465/2015 the accident occurred. He has argued that the lower court after discussing oral as well as documentary evidence, rightly convicted the accused for the offence punishable U/Sec. 279 and 338 of IPC.
17. In this case, the alleged incident occurred on 3.5.2012 at 10.00 a.m and the complaint was lodged on the same day at about 5.00 p.m. The spot mahazar was drawn on 4.5.2012 between 9.00 a.m and 10.00 a.m. Ex.P.8 is the sketch prepared by the I.O. showing the place of accident. As per this sketch, the width of the road measures 51 ft., and the accident occurred on the eastern side of the road. This sketch depicts that Nano car bearing No.KA-51-Z-7355 went outside the middle line of the road and hit to the motor vehicle bearing No.KA-53-V-8570. Ex.P.9 is the motor vehicles accident report. As per this report, damages were caused to the Nano car and the motor cycle. The front bumper right corner, bonnet, right wheel mudguard and right tail lamp of the Nano car was 14 Crl. A. No.465/2015 damaged. The front wheel mudguard, front right side foot rest, brake leaver of the motor cycle was damaged. It is further stated in the said report that the accident was not due to the mechanical defect of the motor vehicles.
18. Now on perusal of the evidence of prosecution witnesses, it reveals that no suggestion was put to PW1, 2, 4 and 5 that the I.O. has concocted Ex.P.8 and Ex.P.9. A suggestion was put to PW5 that the mahazar and spot sketch were prepared in the police station. No suggestion was put to PW5 that Ex.P.8 and 9 were concocted by the I.O. No explanation is given by the accused while recording statement U/s.313 of Cr.P.C., that the accident occurred due to error of judgment. A suggestion was put to PW1 that the accident occurred due to rash and negligent riding of motor cycle by the brother of PW1. A suggestion was put to PW2 that he fell down and sustained injury due to his rash and negligent riding of the vehicle. No suggestion was put to PW1 and 2 that the accused 15 Crl. A. No.465/2015 was not driving the Nano Car at the time of accident. Both the PW1 and PW2 identified the accused as the driver of the Nano Car. So on perusal of these evidence, it is clear that the accused has not disputed his identification as driver of car at relevant point of time. He has not disputed that he was the driver of the Nano car. He has not disputed the accident occurred in the place alleged by the prosecution. The only contention is that the accident is not occurred due to his rash and negligent driving of Nano car. Ex.P.8 is the sketch of the spot of occurrence clearly establishes that the driver of the car went to the right side after crossing the middle line of the road and hit to the motor cycle. Such being the case, it is for the accused to explain under what circumstances, he crossed the middle line and went to the right side of the road and hit to a bike. It is not the case of the accused that the accident occurred due to error of judgment or the accident occurred in order to avoid head on collision with other vehicle or pedestrian 16 Crl. A. No.465/2015 who suddenly crossed the road. This clearly establishes that the accident occurred due to the rash and negligent driving of Nano car by its driver.
19. It is true that the prosecution has not examined the Motor Vehicle Inspector. But merely because, the prosecution has not examined the motor vehicle inspector, this court cannot discard Ex.P.9. It is not the case of the accused that his vehicle was not damaged. It is true that the right side of the car was damaged. PW4 is an independent witness who has identified the accused. But he has stated that he did not see how the driver was driving the car. He has further deposed that he had not seen how the accident occurred. But the evidence of PW1 and PW2 and the documentary evidence clearly establish that the accident occurred due to the negligent driving of car by its driver.
20. Learned counsel for the accused has argued that there are serious contradictions in the evidence of prosecution 17 Crl. A. No.465/2015 witnesses. He has argued that in the complaint, the complainant has not stated that Nano Car while overtaking other vehicles came to the right side and hit to the motor cycle, but in the evidence, PW1 and PW2 have stated that the accident occurred while overtaking other vehicles. The complainant has not mentioned this aspect in the complaint. But this improvement in the evidence is not fatal to the case of the prosecution because the sketch of spot of occurrence clearly establishes that the Nano Car went outside the middle line on the right side and hit to the bike. If the Nano Car is on the left side of the road or the accident occurred in the middle of the road, then the court could have considered the argument of the counsel for the accused. Therefore, it is not a serious contradiction. It is minor improvement. In the evidence, PW1 and PW2 have explained the manner in which the accident occurred and how the accused came to the right side of the 18 Crl. A. No.465/2015 road and hit to the motor cycle. Therefore, this argument holds no water.
21. Learned counsel for the accused has argued that in the wound certificate, the age of the wound mentioned as two hours old and as per the wound certificate, the injured took the treatment at 1.40 p.m, but the accident occurred at 10.00 a.m. and therefore there is contradiction. But in this case, the accused has not disputed the accident. The accused has not disputed the time of the accident. The accused has not disputed the injury sustained by CW2. Therefore, the Doctor might have approximately mentioned the age of the injury as two hours in the wound certificate and it cannot be fatal to the case of the prosecution.
22. Learned counsel for the accused has argued that the complainant has not stated that he took first aid treatment in Apollo Hospital,but the injured has stated that his statement 19 Crl. A. No.465/2015 was recorded in Apollo Hospital. It is true that there is no document to show that injured taken treatment in the Apollo hospital. But as I discussed above, the accused is not disputing the accident and injuries sustained by CW2 in the accident. Though there are minor contradictions, it cannot take away the entire case of the prosecution.
23. Learned counsel for the accused has argued that the prosecution has not produced the photographs of the place of accident. The prosecution cannot take the photograph of the accident. Photograph can be taken only after the accident. Therefore, by producing the photograph, the prosecution cannot prove the accident and negligent driving of Nano car by the accused.
24. Learned counsel for the accused has argued that the prosecution has not traced the Tata Sumo, in which the injured was taken to Hospital. Merely, because the police have not traced the Tata Sumo vehicle, it cannot be said that the injured 20 Crl. A. No.465/2015 did not take treatment in the hospital. Tata sumo is not the subject matter of this case and Tata sumo is not involved in the accident and it is not the case of the accused that the Tata sumo involved in the accident. Therefore, this argument also cannot be accepted.
25. Learned counsel for the accused has argued that no investigation was conducted as per the police manual and no recovery in the place of accident. In this case, the police issued notice to the owner of the vehicle. Owner of the vehicle surrendered the vehicle by giving a letter stating that at the time of accident, the accused was the driver of the said vehicle. So question of recovery at the spot does not arise.
26. Learned counsel for the accused has argued that the police have not seized motor cycle and no mahazar was conducted by the police. Merely, because the police have not seized the motor cycle and not drawn mahazar, the case of the prosecution cannot be discarded. Learned counsel for the 21 Crl. A. No.465/2015 accused has argued that the spot sketch does not depict any vehicle movement in the road. The sketch was prepared by the I.O. on the basis of the information given by the complainant. He cannot draw the vehicle movement at the time of accident in the spot sketch.
27. Learned counsel for the accused has relied on the decision reported in (2005)11 SCC 133 in the case of Muralidhar and Others Vs. State of Rajasthan. I have gone through this decision. The said decision was rendered by referring Sec.106 of Evidence Act, in the case alleging abduction and murder and said decision is not relevant to the case in hand. Therefore, said decision is not applicable to this case. Learned counsel for the accused has relied upon the decision reported in (1980)1 SCC 30 in the case of Syad Akbar Vs. State of Karnataka, wherein the Hon'ble Supreme Court has held as follows:-
22 Crl. A. No.465/2015
Criminal Trial - Appreciation of evidence-Res ipsa loquitur-Application of this maxim from the field of tort law to criminal law in the face of the Evidence Act, 1872 discussed-Presumptions of fact and law-Distinction between-Burden of proving negligence beyond reasonable doubt in criminal cases - Negligence, meaning and ingredients of-Tort law- Penal Code, 1860, Sec.304- A, 279, 280, 282, 283, 284, 285, 286, 287, 288, 289, 336, 337, 338 and 129, 137, 223, 225-A, 269 - Evidence Act, 1872, Sections 4, 114, 79 to 85, 89 and 105.
Penal Code, 1860-Sec.304-A-On facts accident caused owing to misjudgment and not negligence- Maxim res ipsa liquitur, held, not applicable.
28. I have gone through the facts of the said case. A woman accompanied by her 4 year old daughter came out of her village to cross the highway and while crossing the road, the mother asked the child to go back home, but when the mother had crossed the road and descended into the deep ditch on the other side, the child suddenly dashed across the road to join her mother and was caught under the left front 23 Crl. A. No.465/2015 wheel of a passenger bus driven by the accused and was crushed to death. According to the eye witness account of the four passengers of the bus, at the material time, the accused was driving the bus slowly as a narrow bridge was 30 ft., ahead and when the child suddenly appeared on the road, he immediately swerved the vehicle to the extreme right side of the road in order to save the collision. But in the present case, it is not the case of the prosecution that some pedestrian while crossing the road suddenly came to the road and in order to avoid the accident, accused took the car to right side of the road and thereby hit to the motor cycle. At the place of accident, the width of the road is 51 ft., and there was sufficient space on the left side of the road. But the driver of the Nano Car went to the right side of the road and hit to the motor cycle. Therefore, res ipsa liquitur principle clearly applicable to the facts of this case. Therefore, the decisions cited by the learned counsel for the accused are not applicable 24 Crl. A. No.465/2015 to the facts of this case. The prosecution is able to prove the guilt of the accused beyond all reasonable doubt. The facts of the case and the evidence on record clearly establishes that the accused has committed offences punishable U/Sec. 279 and 338 of IPC and the lower court on appreciation of evidence on record has rightly come to the conclusion that the accused has committed offence alleged against him and rightly convicted him to pay fine of Rs.1000/- each for the offences punishable U/Sec. 279 and 338 of IPC and there are no grounds to set aside the judgment of the lower court and accordingly, I answer Point No.1 to 3 in the Negative.
29. Point No.4:- In view of my findings on point No.1 to 3, I proceed to pass the following:
ORDER The appeal filed u/sec. 374(2) of Cr.P.C. by the appellant/accused is hereby dismissed. 25 Crl. A. No.465/2015
The judgment passed by the MMTC-VI, Bengaluru city in C.C.No.1453/2012 dated 05.03.2015 convicting the appellant/accused for the offences punishable u/s.279 and 338 of IPC and sentencing him to pay fine of Rs.1,000/- each for the offences punishable u/s.279 and 338 of IPC is hereby confirmed.
Send a copy of this judgment to the lower court along with L.C.R. (Dictated to the Judgment Writer, transcribed and typed by him, corrected and then pronounced by me in the open court on this the 19th day of February, 2016) (B.Jayantha Kumar) LX Addl.City Civil & Sessions Judge, Bengaluru.
Rrt*