Bangalore District Court
State By Kumaraswamy Traffic Police ... vs Smt. Vani. A.K W/O Mohan. M on 5 January, 2023
IN THE COURT OF THE METROPOLITAN MAGISTRATE TRAFFIC
COURT IV, BENGALURU.
DATED THIS THE 5th DAY OF JANUARY 2023
Present: Sri. Gagan. M.R. B.A.L,LL.B
Metropolitan Magistrate,
Traffic CourtIV, Bengaluru.
CC No. 5812/2018
Complainant: State by Kumaraswamy Traffic Police Station,
Bangalore. (Represented by: Sri. APP)
V/s
Accused: Smt. Vani. A.K W/o Mohan. M, 42 yrs, R/at No. 501, 1 st
"A" Cross, MS Ramaiah city South, JP Nagara 7 th Phase,
Bengaluru. (Represented by Sri. KVK Adv.)
1. Date of commission of offence: 20.3.2018
2. Offences alleged against accused U/sec.279 and 304A of IPC
3. Date of recording of evidence: 7.7.2018
4. Date of Judgment: 05.01.2023
JUDGMENT
The PoliceInspector of Kumaraswamy Traffic P.S. has filed charge sheet against the accused for the offences punishable U/sec. 279 and 304A of IPC.
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2. The brief case of the prosecution is that;
On 20.3.2018 at about 12.30 p.m., within the jurisdiction of Kumaraswamy Traffic police station, the accused being the driver of Maruthi Car bearing Reg. no.KA 51 N 5564 drove the same on Avalahalli Main Road in a rash and negligent manner so as to endanger the human life and dashed against auto rickshaw bearing registration no. KA 01 AB 9934 which was coming from opposite direction in front of Metric Medicine Factory. Due to the impact, the said auto rickshaw toppled and auto driver/Sayed Akram sustained severe injuries to his head and leg and while shifting him to Sai Ram hospital for treatment on the way succumbed to death. Based on the first information statement registered by CW1, the case came to be registered against the accused in Cr. No. 57/2018. 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 Wound certificate and other documents and on completion of investigation has filed charge sheet against the accused for the offences punishable U/sec. 279 and 304A of IPC.
3. Upon taking cognizance, case came to be registered against accused for the offences punishable U/sec. 279 and 304A of IPC. The accused appeared 3 CC 5812/2018 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 304A of IPC for which accused pleaded not guilty claimed to be tried.
5. During the course of trial, the prosecution has examined PWs1 to 6 and got exhibited documents as per Ex.P.1 to Ex.P.11. 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 her and submitted that on the said day she was driving her vehicle in slow manner on the alleged spot at that time the deceased auto driver has driven his vehicle in a rash and negligent manner and while over taking the another auto rickshaw he lost the control of his vehicle and dashed to the front right side edge of the car and due to the said impact his vehicle toppled down and his head colluded to the foot path edge. The said act occurred due to the total negligence on the part of the auto rickshaw driver, but police has falsely put allegations against me. The accused did not lead any defence evidence.
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6. Heard arguments on both sides. The learned prosecutor has argued that in the instant case the accused has not disputed the death of the deceased and she has not taken the defence that she was not driving the accused vehicle on the alleged day. The prosecution has examined the complainant though he is a hearsay witness he has identified the accused and narrated the incident as heard by him which matches the prosecution story. The panch witnesses has supported the prosecution case and deposed that police have done spot mahazar as per Ex.P.2. P.W.3 is the eye witness who has witnessed the incident and he has supported the case of the prosecution and identified the accused stating that on the alleged day the accused was driving the vehicle which caused accident. The I.O. has narrated the incident and collected materials to substantiate the case of the prosecution. In the instant case the prosecution has established that the death of the deceased was caused due to the rash and negligent driving of the accused in the public road and hence she prayed to convict the accused person.
The counter the same the learned counsel for the accused in equal vehemence argued that the accident has occurred due to rash and negligent act on the part of the auto driver i.e., the deceased. The deceased auto 5 CC 5812/2018 driver was driving his vehicle in high speed and while making an attempt to over take the other auto rickshaw which was passing in front of him colluded to the right side bumper of the accused car and due to which the auto which was driven by the accused toppled down and accused succumbed to death. The investigating officer has narrated false fact before the court the accused was coming from the opposite direction i.e., towards Avalahalli road, but prosecution has narrated that accused is coming from Avalahalli which is a false fact and the said fact is established by accused in cross examination of witnesses. He contended that P.W.1 is a hearsay witness and his evidence is of no use to prosecution since he is a close relative of the deceased person. The panch witnesses both of them belongs to same community as well as locality of the deceased person. As per the mandate of the supreme court when the supporting witnesses being the same community the court has to check their evidence with caution. In the similar manner the P.W.3 who is the eye witness is also the resident of same locality where the deceased person is residing and he is also belongs to same community. Hence his version should also be scrutinized by the court very cautiously. The counsel for the accused laid heavy stress on the rough sketch map of the spot and try to 6 CC 5812/2018 establish that the collusion has taken place on the center of the road and contended that the said sketch map does not matches with the oral testimony of the witnesses. He further laid stress on the photos of the vehicle and contended that the photos itself speaks the truth since there is no damage found on the car. Per contra the auto rickshaw has completely damaged the court can assume the impact of the accident and negligence on the part of whom. The counsel for the accused relied on several judicial precedents of various high courts and Supreme Court and contended that the same is applicable to the case on hand. On these grounds by appreciating the contradictions in the prosecution evidences he prays to acquittal of the accused. Heard the counsels at length. Perused the prosecution papers. On going through the same the following points that arise for my consideration are as follows:
1. Whether prosecution proves beyond all reasonable doubt that on 20.3.2018 at about 12.30 p.m., within the jurisdiction of Kumaraswamy Traffic police station, the accused being the driver of Maruthi Car bearing Reg. no.KA 51 N 5564 drove the same on Avalahalli Main Road 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 ?7
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2. Whether prosecution proves beyond all reasonable doubt that on the above date, time, and place, the accused being the driver of the accused being the driver of Maruthi Car bearing Reg. no.KA 51 N 5564 dashed against autorickshaw bearing registration no. KA 01 AB 9934 which was coming from opposite direction in front of Metric Medicine Factory.
Due to the impact, the said auto rickshaw toppled and auto driver/Syed Akram sustained severe injuries to his head and leg and while shifting him to Sai Ram hosptial for treatment on the way succumbed to death.
Thereby the accused has committed an offence punishable U/sec. 304A 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. 3: 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.
10. It is the specific case of the prosecution that on 20.3.2018 at about 12.30 p.m., within the jurisdiction of Kumaraswamy Traffic police station, the accused being the driver of Maruthi Car bearing Reg. no.KA 51 N 5564 drove the same on Avalahalli Main Road in a rash and 8 CC 5812/2018 negligent manner so as to endanger the human life and dashed against auto rickshaw bearing registration no. KA 01 AB 9934 which was coming from opposite direction infront of Metric Medicine Factory. Due to the impact, the said auto rickshaw toppled and auto driver/Sayed Akram sustained severe injuries to his head and leg and while shifting him to Sai Ram hospital for treatment on the way succumbed.
11. To prove its case, the prosecution examined PWs. 1 to 6 and marked Exs.P.1 to 11 with sub marking.
12. CW1 Ibrahim is examined as PW1 who is complainant and spot mahazar of this case. He deposed that on 22.3.2018 at about 1.00 p.m. he received the information about the accident happened to his brother through phone. Immediately, he rushed to the spot and came to know that his brother was proceeding in his auto near Glass factory, at that time the driver of car came in high speed and negligent manner and dashed against his brother's auto. Due to the impact, his brother was succumbed at spot. The accident had happened due to the fault of car driver and he lodged complaint as per Ex.P.1 and police have conducted spot mahazar as per Ex.P.2.
9CC 5812/2018 During his crossexamination he deposed that he has signed the spot mahazar as it was insisted by police. He deposed that he did not witnessed the accident. And he further deposed that he did not found any marks on the road. He deposed that his brother's auto rickshaw was found on the foot path. And further deposed that he gathered information occurrence of accident from the street fruit vendor. He deposed that the other punch witnesses are his relatives and he has taken them to the police station.
13. CW2 Mohin is examined as PW2 who is spot mahazar witness of this case. He identified his signature at Ex.P.2. About 4 months back on March 23 rd at about 9.00 a.m. to 10.00 a.m. he was in the spot and he signed Ex.P.2 in th e spot.
During his crossexamination he deposed that he did not know the contents of Ex.P.2. He did not know about the time of occurrence of accident. He further deposed that police has prepared Ex.P.2 before he went to the spot. P.W.1 is his relative and he resides near his house. He does not know about who shown the accident spot to the police.
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14. CW4 Sayed Idayath is examined as PW3 who is an eye witness and spot mahazar witness of this case. He deposed that on 22.3.2018 at about 12.30 p.m., he was proceeding in his motor cycle on Avalahalli road, at that time one car came from Avalahalli in high speed and negligent manner and dashed against one auto. Due to the impact, the rider of said auto sustained severe injuries and was shifted to Sai Ram hospital and the injured succumbed to death. The accused before court was the driver of offending car. He identified his signature at Ex.P.2. on 23.3.2018 at about 9.30 a.m. he along with CW2 signed Ex.P.2.
During his crossexamination he deposed that he did not visited the police station. He signed Ex.P.2 at the instance of C.W.2 and police has prepared Ex.P.2 previously and he signed the said document. And he does not know the contents of Ex.P.2. He deposed that the deceased is his neighbour. And further deposed that police did not examined him and collected information regarding accident. They obtained signature on Ex.P.2. Further in his crossexamination he deposed that at the time of accident he was proceeding from Avalahalli towards Harinagar. And he denied the suggestion put by the defence denying the accident.
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15. CW6 Akram is examined as PW4 who is inquest mahazar witness. He identified his signature at Ex.P.3. On 22.3.2018 at about 4.30 p.m. he along with Cws.5 and 7 were signed Ex.P.3.
During his crossexamination he deposed that Ex.P.3 was written in police station and he further deposed that the deceased person is his neighbour.
16. CW8 Mohan is examined as PW5 who gave reply to 133 notice. He identified his signature at 133 notice and replied said notice. On 22.3.2018 he replied 133 notice with respect to vehicle bearing reg. no. KA 51 N 5564. He is the husband of the accused person.
17. CW11 Nagaraju.B.P is examined as PW6 who is Investigating Officer, he deposed that on 22.3.2018, he received the first information statement from CW1 and on its basis he registered the case in Cr. No. 57/2018 and dispatched FIR to the court and visited the Sai Ram hospital and received death memo and conducted inquest mahazar in presence of panchas. PW6 further deposed that on the same day, he got issued 133 notice to owner of the offending vehicle and received reply. The accused got produced before him, he arrested the accused and released her in station bail.
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18. PW6 further deposed that on 23.3.2018 he visited the spot and conducted spot mahazar and prepared rough sketch. On 25.3.2018 he gave requisition to inspect the vehicle and on the same day obtained postmortem report and on obtaining postmortem report and IMV report and on conclusion of investigation filed the charge sheet against the accused.
During his crossexamination he deposed that there is no allegation of high speed in the complaint. He further deposed that the auto rickshaw has stoppled down at a distance of 25ft from the place of collusion. He deposed that as per sketch there is no head to head collusion between the vehicles, the right portion of the car colluded to right portion of the auto rickshaw. He further deposed that there is no break mark found in the accident spot. He deposed that while preparing spot sketch and spot panchanama no eye witness were present in the spot. He denied the suggestions put forth by the defence counsel denying the incident and negligence on the part of the accused person.
19. Out of the exhibits marked for prosecution Ex.P.1 is the complaint, Ex.P.2 is spot mahazar, Ex.P.3 is inquest mahazar, Ex.P.4 is copy of 133 notice, Ex.P.5 is reply, Ex.P.6 is postmortem report, Ex.P.7 is IMV report, 13 CC 5812/2018 Ex.P.8 is FIR, Ex.P.9 is death memo, Ex.P.10 is rough sketch, Ex.P.11 is photo.
20.Upon analyzing the statement of the witnesses and documents submitted by both sides, in the instant case it is not the case of the defence that the accused person was not driving the alleged car and they are not disputing that the death of the victim was not due to accident. Their contention is the accident occurred due to the negligent act of the deceased person and in a sense they are highlighting the concept of contributory negligence. In the instant case Rash and negligent driving of the accused driver is the vital point to book him u/s 279 IPC or section 304(A) IPC. There is no any dispute regarding the accidental death of the deceased Sayad Akram as it was not denied by the defence.
21. 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 14 CC 5812/2018 negligent may be described as criminal rashness or criminal negligence. It must be more than mere carelessness of error of judgment. The essential ingredients of Sec. 279 of IPC are; i) Rash and negligent driving or riding on public way. (ii) The act must be such as to endanger human life or likely to cause hurt or injury to any person. Regarding rash or negligent driving Hon'ble Supreme Court in the case of Ravi Kapur Vs State of Rajasthan in AIR 2012 SC 2986 observed as follows : "10. In order to examine the merit or otherwise of contentions
(b) and (c) raised on behalf of the Appellant, it is necessary for the Court to first and foremost examine (a) what is rash and negligent driving; and (b) whether it can be gathered from the attendant circumstances. Rash and negligent driving has to be examined in light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to 'rash and negligent driving' within the meaning of the language of Section 279 Indian Penal Code. That is why the legislature in its wisdom has used the words 'manner so rash or negligent as to endanger human life'. The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated Under Section 279 Indian Penal Code is attracted.
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11. 'Negligence' means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence.
12. The Court has to adopt another parameter, i.e., 'reasonable care' in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others.
13. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in the Indian Penal Code that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concept of 'culpable rashness' and 'culpable negligence' into consideration in cases of road 16 CC 5812/2018 accidents. 'Culpable rashness' is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite consciousness (luxuria). 'Culpable negligence' is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person's negligent conduct. [Ref. Justice Rajesh Tandon's 'An Exhaustive Commentary on Motor Vehicles Act, 1988' (First Edition, 2010].
22. In the instant case as well the prosecution though established that the accused person was driving the alleged car on the said date it did not conclusively established that how the accident has occurred, the prosecution contend it is an head to head collusion, but the said version is not supported by either IMV Report or photographs of the vehicle which involved in the accident. The narration of the prosecution that due to impact of accident the auto toppled down but IO in his evidence deposed the alleged auto rickshaw toppled down three rounds and has fallen in reverse direction at a distance of 25ft, but if we peruse the accident spot and sketch the version appears to be strange. It is the specific defence of the accused that the auto tried to over take another auto in high speed and in that process it colluded to the right side edge of the car and due to the over speed the auto toppled down. Even the eye witness did not disclose the said fact in clarity some inconsistency found in his deposition as well.
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23.The Hon'ble Supreme Court in Naresh Giri Vs. State of M.P. (2008)1 SCC 791 Hon'ble Supreme court discussed section 304(A) IPC as follows:
"Section 304A Indian Penal Code applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 Indian Penal Code. Section 304A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements Under Section 304A. "What constitutes negligence has been analysed in Halsbury's Laws of England (4thEdn) Vol 34 Para 1 (p.3) as follows: 'General principles of the law of negligence Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequences. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owned only to those persons who are in the area of foreseeable danger ; the fact that the act of the Defendant violated his duty of care to a third person does not 18 CC 5812/2018 enable the Plaintiff who is also injured by the same act or omission may accordingly in some circumstances involve liability as being negligent , although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the Defendant owed to the Plaintiff in the circumstances of the case and damage suffered by the Plaintiff together with the demonstrable relation of cause and effect between the two.
24. According to the dictionary meaning "reckless" means "careless",regarding or heedless or the possible harmful consequences of one's acts. It presupposes that if thought was given to the matter by the doer before the act was done, it would have been apparent to him that there was a real risk of its having the relevant harmful consequences, but granted this recklessness covers a whole range of states of mind from failing to give any thought at all to whether or not there is any risk of those harmful consequences, to recognizing the existence of the risk and nevertheless deciding to ignore it.
25.When the prosecution or the defence fails to narrate how the untoward incident happened and when defence alleged fault on opponent the concept of res ipsa loquitor comes into picture Hon'ble Supreme court in case of Md. Ainuddin vsState of Andhra Pradesh 2007 SCC 72 discussed the principle of 'res ipsa loquitur' as under;
"9.A rash act is primarily an overhasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise 19 CC 5812/2018 duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.
In light of the above, now we have to examine if negligence in the case of an accident can be gathered from the attendant circumstances. We have already held that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the civil jurisprudence. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose negligence the accident occurred. The factum of accident having been established, the Court with the aid of proper evidence may take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur. The mere fact of occurrence of an accident does not necessarily imply that it must be owed to someone's negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases, the circumstantial evidence may be adduced to prove negligence. Circumstantial evidence consists of facts that necessarily point to negligence as a logical conclusion rather than providing an outright demonstration thereof. Elements of this doctrine may be stated as:
The event would not have occurred but for someone's negligence. The evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the event. Accused was negligent and owed a duty of care towards the victim.
26. In the case of Ravi Kapur vsState of Rajasthan Hon'ble Supreme Court observed that:
" it is true that the prosecution is required to prove its case beyond reasonable doubt but provisions of section 313 Code of Criminal Procedure are not a mere formality or purposeless. They have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence 20 CC 5812/2018 should be put to the accused in accordance with law and, secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing of the case".
27. In the case on hand when the accused was examined U/s.313 of Cr.P.C. she has denied the incriminating evidence recorded against her and she has given a written statement as per sub section 5 of section 313. Wherein she has stated that on the alleged day she was proceeding from Hari Nagar to Avalahalli and she was driving the car in a normal speed. On the alleged day the deceased auto driver drove his auto rickshaw in a high speed and in an attempt to over take the another auto rickshaw which was proceeding in front of him he colluded with right bumper of the car. And due to the over speed of the auto rickshaw the auto driver cannot control his vehicle and he fell on the footpath and his head crushed to the stone laid on the footpath. The accident has occurred due to the fault on the part of the deceased person. The police has falsely projected the different theory and they have changed the direction of the accused to the opposite side and booked false case against the accused. And she has further stated that she has been falsely charge sheeted by concerned police though the accident has occurred due to the negligent act of the auto rickshaw driver and further contended that all the alleged eye witness and mahazar witness are the relatives of the complainant and none of them were present at the time of accident.
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28. Generally speaking no person will watch the accident live unless in exceptional circumstances the accident scene was witnessed by the individuals. In cases of road accidents by fast moving vehicles it is ordinarily difficult to find witnesses who would be in a position to affirm positively the sequence of vital events during the few moments immediately preceding the actual accident, from which its true cause can be ascertained. When accidents take place on the road, people using the road or who may happen to be in close vicinity would normally busy in their own work and in the normal course their attention would be attracted only by the noise or the disturbance caused by the actual impact resulting from the accident itself. It is only then that they would look towards the direction of the noise and see what had happened.
29. It is very rare possibility and it is only a matter of coincidence that a person may already be looking in the direction of the accident and may for that reason be in a position to see and later describe the sequence of events in which the accident occurred. In some incidents it can not be brushed out that after hearing the sound or noise of the injured the people in the nearby vicinity may go to the accident spot either in curiosity or with an intention to help the injured may form an opinion or they create their own theory about the accident about what might have happen and the result is accident. Those persons are listed as witnesses and when death has occurred generally a compassion is tilted in their mind about the death of person and evidence of such persons, therefore,such evidence requires close scrutiny for finding out what they actually saw and what may be the result of 22 CC 5812/2018 their imaginative inference. In such circumstances the court has to rely on the person who can be considered to be truly capable of satisfactorily explaining as to the circumstances leading to accidents, in the case on hand the best person to explain such facts is only driver the other one is the person who died in the accident, he is obviously not available for giving evidence.
30. The accused in the instant case though admits she was driving the car but projected a different theory in her 313 statement which is completely opposite to the story of the prosecution. Though the defence counsel is successful to an extent in establishing his theory, but the same also fall short in convincing manner to deny the complete case of prosecution.
31. Further in the instant case the accident has taken place between the four wheeler i.e., car and three wheeler i.e., Auto rickshaw, and deceased is the driver of Auto. Having one wheel in front and two in the rear for power reduces the cost of the steering mechanism but greatly decreases lateral stability when cornering while braking. When the single wheel is in the front the vehicle is inherently unstable in a braking turn, as the combined tipping forces at the center of mass from turning and braking can rapidly extend beyond the triangle formed by the contact patches of the wheels. This type, if not tipped, also has a greater tendency to spin out when handled roughly. The disadvantage of a threewheel configuration is that lateral instability is harder to avoid than with a four wheeled vehicle. With any vehicle, an imaginary line can be projected from the vehicles center of mass to the ground, representing the force exerted on the vehicle by its mass. As the vehicle accelerates, that imaginary line tilts backwards, remaining 23 CC 5812/2018 anchored to the center of mass the point at which the line intersects the ground moves backwards. As you brake it moves forwards, with cornering it moves sidewards and may result in tilting or toppling of vehicle. The aspect of road grip of Auto rickshaw is also factor to be considered since auto driver does not uses any safety measure like seat belt etc.
32. In present case the only eye witness who supported the case of the prosecution is P.W.3 who appears to be the relative of the deceased and neighbour of the deceased. The other panch witness and complainant all appears to be the residents of same locality where the deceased was residing. The counsel for the accused relied on 2001(4) crimes 307 Jagannath Vs. State of Hariyana wherein the Hon'ble Court has held that the two eye witnesses of the accident belong to community of the deceased and when their presence at sight appears to be doubtful conviction on the basis of their testimony could not be sustained, because admittedly they belong to same community and locality and they being a chance witness cannot be believed. In the instant case the defence also failed to establish their projection by adducing any reliable evidence from their side. But they are successful in creating a doubt regarding contributory negligence. So it is found that due to rash and negligent driving of the auto driver accident took place and he died on the spot cannot be brushed out completely. So rash and negligent driving is not proved against the accused beyond all reasonable doubt. From medical evidence it is found that due to head injury the deceased died. So it is not clearly concluded that death of the deceased was caused by the rash driving of the accused. Therefore, in this circumstances of the 24 CC 5812/2018 case, the case of prosecution regarding rash and negligent act and also regarding the death was caused by the vehicle of accused could not be made out beyond reasonable doubt. Therefore, looking to the evidence available on record and the materials placed by way of oral and exhibits, the case of prosecution appears to be doubtful. There is a doubt as to whether the accused had driven the said vehicle in a rash or negligent manner. Therefore, in the circumstances of the case, the prosecution has failed to prove the alleged offence against the accused. Accordingly, the points under consideration are answered in the Negative.
33. 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: ORDER Acting U/sec. 255(1) of Criminal procedure code, the accused is hereby acquitted of the offences alleged against her punishable U/sec. 279 and 304A of IPC.
Bail bonds of accused and surety bonds shall stand canceled after completion of appeal period.
(Dictated to the stenographer, directly on computer, corrected and then pronounced by me in the open court on this the 5th day of January 2023).
(Gagan. M.R) M.M.T.CIV, Bengaluru.
25CC 5812/2018 ANNEXURE List of witnesses examined for Prosecution: PW1 Ibrahim PW2 Mohin PW3 Sayed Idayath PW4 Akram PW5 Mohan PW6 Nagaraj List of documents marked for Prosecution:
Ex.P.1: Complaint
Ex.P.2 Spot mahazar
Ex.P 3 Inquest mahazar
Ex.P. 4 Copy of 133 notice
Ex.P. 5 Reply
Ex.P.6 Postmortem report
Ex.P.7 IMV report
Ex.P.8 FIR
Ex.P.9 Death memo
Ex.P.10 Rough sketch
Ex.P.11 Photo
(Gagan. M.R)
M.M.T.CIV, Bengaluru.