Bangalore District Court
State By Basavanagudi Traffic P.S vs Malakaji Wadiyar on 5 May, 2023
IN THE COURT OF THE METROPOLITAN MAGISTRATE
TRAFFIC COURT - IV, BANGALORE
PRESENT: SRI GAGAN M.R. B.A.L LLB
Metropolitan Magistrate
Traffic Court - IV, BANGALORE
DATED : THIS THE 5TH DAY OF MAY 2023
C.C. No.5776/2018
COMPLAINANT: State by Basavanagudi Traffic P.S
Bengaluru.
(Represented by Learned APP)
V/s
ACCUSED : Malakaji Wadiyar
S/o Kariyappa
Aged about 49 years,
BMTC Depot No.4, Jayanagara,
Vijayapur,
Karnataka - 560 011
(Represented by Sri V.M. Adv.,)
JUDGEMENT
The Police SubInspector of Basavanagudi Traffic Police Station has filed the charge sheet against the accused for the offences punishable U/s.279 & 337 of IPC, Sec.134(a and b) R/w.187 of M.V.Act.
0C.C.No.5776/2018
2. The brief case of the prosecution is that:
On 31012018 at 9.30 a.m. accused being the driver of the BMTC bus bearing registration No.KA57F0443 within the jurisdiction of Basavanagudi Traffic Police station on 10 th main road, Srinagar Road, in front of Srinidhi Enterprises, he stopped his bus for alightening of passengers from the bus at that time when C.W.1 was boarding the bus, the accused driver suddenly moved the bus in a rash and negligent manner. Due to the act C.W.1 lost his control and fell on road, the front right wheel of the bus ran over on C.W.1 and sustained simple injuries. Further the accused did not provide medical aid to the injured nor he intimated the police about the accident. Thereby the accused is alleged to have committed the offences punishable U/s.279 and 337 of IPC and Sec.134(a and b) R/w.187 of M.V.Act.
3. Upon taking cognizance, case came to be registered against accused for the offences punishable U/s.279 & 337 of IPC, Sec.134(a and b) R/w.187 of M.V.Act The accused appeared before the court through his counsel & got enlarged on bail. Charge sheet copies furnished to the accused and thereby provision U/s..207 of Cr.P.C. duly complied with.
0C.C.No.5776/2018
4. Plea came to be framed for the offences U/s.279 and 337 of IPC and Sec.134(a and b) R/w.187 of M.V.Act for which accused pleaded not guilty claimed to be tried.
5. During the course of trial, the prosecution has examined 6 witnesses as P.Ws.1 to 6 and got exhibited 12 documents as per Ex.P.1 to Ex.P.12. On completion of prosecution side evidence, the statement of accused U/s.313 of Cr.P.C. was recorded and the accused denied all the incriminating evidence appearing against him and did not choose to lead any defence evidence.
6. Heard arguments on both sides.
7. The points that arise for my consideration are as follows:
1.Whether the prosecution proves beyond all reasonable doubt that on 31012018 at about 9.30 a.m. accused being the driver of B.M.T.C. bus bearing registration No.KA57F0443 drove his vehicle in a rash and negligent manner as to endanger human life on 10th main road, Srinagar road, in front of Srinidihi Enterprises, thereby the accused has committed an offence punishable U/s.279 of IPC?
2. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place the accused being the driver of the said vehicle, drove his vehicle in 0 C.C.No.5776/2018 the above said manner. While so driving his vehicle in the said route in front of Srinidhi Enterprises he stopped his bus for alightening of passengers from the bus at that time when C.W.1 was getting into the bus the said bus during that time without observing the passenger the accused driver negligently drove the bus, due to the impact above said passenger fell down and sustained simple injuries, thereby the accused has committed an offence punishable U/s.337 of IPC?
3. Whether the prosecution further proves that the accused did not provide medical aid to the injured nor he intimated the police about the accident, thereby the accused has committed an offence punishable U/s.134 (A & B) R/w. Sec.187 of M.V.Act?
4. What order?
8. My answer to the above points are as under:
POINT No.1: IN THE NEGATIVE POINT No.2: IN THE NEGATIVE POINT No.3: IN THE NEGATIVE POINT No.4: AS PER THE FINAL ORDER For the following REASONS 0 C.C.No.5776/2018
9. POINT NO.1 & 2: For the sake of convenience and to avoid repetition of facts, these points are taken up for common discussion to have brevity.
10. It is the case of the prosecution that on 31012018 at 9.30 a.m. accused being the driver of the BMTC bus bearing registration No.KA57F0443 within the jurisdiction of Basavanagudi Traffic Police station on 10 th main road, Srinagar Road, in front of Srinidhi Enterprises, he stopped his bus for alightening of passengers from the bus at that time when C.W.1 was getting into the bus, the accused driver suddenly moved the bus in a rash and negligent manner. Due to the act C.W.1 lost his control and fell on road, the front right wheel of the bus ran over on C.W.1 and sustained simple injuries. Further the accused did not provide medical aid to the injured nor he intimated the police about the accident. Thereby the accused is alleged to have committed the offences punishable U/s.279 and 337 of IPC and Sec.134(a and b) R/w.187 of M.V.Act.
11. In order to prove the contents of complaint the prosecution examined 6 witnesses as P.W.1 to P.W.6 and marked 10 documents as Ex.P.1 to Ex.P.12
12. C.W.1/ Gurumurthy is examined as P.W.1 who is complainant and victim of this case. He deposed that on 3101 2018 at about 9.30 a.m. he was waiting for bus and at that time 0 C.C.No.5776/2018 one BMTC Bus bearing registration No.KA01/FA443 route No.201 came to the said bus stand and when complainant try to board the bus the driver of the bus moved the bus in a rash and negligent manner due to that act he fell down and the tyre of the bus ran over his left leg. Later one Ramesh has admitted him to hospital. and later he was shifted to Victoria hospital for further treatment. With regard to the same he has lodged the complaint as per Ex.P.1. with regard to identification the accused counsel has not disputed the said fact.
During his crossexamination he deposed that he used to go to work every day in the same route bus and denied that he made attempt to board the bus after bus stand. He further admits that he has not noted the register number of the bus and the same was intimated to him by police. He admits that he tried to board the bus in the rear door. He deposed that after 10 minutes he was admitted to hospital by public and he has given complaint on next day and he further deposed that while lodging complaint he has not mentioned the bus number and details of the driver. Since he does not know the same. He admits that in route No.201 several buses ply. and denied the other suggestions of the accused counsel.
13. C.W.2 Nagaraj is examined as P.W.2 who is eye witness of this case. He deposed that on 31012018 at about 9.30 a.m. he was traveling to Dommalur in route No.201 and he was seated in 0 C.C.No.5776/2018 the window seat, and deposed that when complainant attempted to board the bus he fell down and later he along with general public admitted the injured to the hospital. The accident has taken place due to the fault of the accused and he identified the accused person. HE further deposed that on next day police conducted spot panchanama and he signed the spot panchanama in the spot.
During his crossexamination he admits that the conductor was in the bus and he does not know all the drivers and conductors of the route no.201. He deposed that hte injured was taken in motor cycle to the hospital and admits that the driver will move the bus only after signal by conductor and denied the suggestions of the accused counsel.
14. C.W.3 Naveen is examined as P.W.3 who is the panch witness and he identified his signature on spot panchanama as per Ex.P.2(b) and deposed that police conducted panchanama on 02022018 between 11.00 to 12.00 a.m. the said panchanama was done with regard to accident. During his crossexamination he denied the suggestions of the accused counsel.
15. C.W.4 Manohar is examined as P.W.4 who is the conductor of the alleged bus and eye witness to the incident. He deposed that on 31012018 he was deputed to route no.201 and he was doing duty in KA57F/0443 and accused was deputed as 0 C.C.No.5776/2018 driver. On 31012018 at 9.30 a.m. the bus was proceeding to Dommalur and it came near Srinagar bus stand while he was issuing ticket inside the bus a sound came and when he get down from the bus a person was injured and he has enquired the said person and he told that nothing has happen you leave and he told that he fell down while trying to board the bus. The said witness was treated as hostile by the learned APP and subjected to cross examination, but nothing worthfull elicited from his mouth.
16. C.W.6 Nalina Kumari is examined as P.W.5 who treated the injured person. She deposed that on 01022018 around 10.10 a.m. came to our hospital and told that he met with an accident on 31012018f and the said accident has taken place while he was making an attempt to board the bus in Srinagar bus stand. Upon enquiry they told that the injured has taken treatment in Hanumanthnagar Orthopedic clinic and in order to make medico legal case they came here. Upon examination she found injury on left knee and later she referred them to orthopedic surgeon and she has issued wound certificate as per Ex.P.5.
During her crossexamination she admits that she has not given any prescription or treatment to injured and admits that the nature of injury can happen when a person fell on hard substance. She admits that the injured came to hospital for medico legal case.
0C.C.No.5776/2018 C.W.8 Krishnaiah is examined as P.W.6 who is investigating officer of this case. He deposed that on the basis of information given by C.W.1 on 01022018 he received the complaint and registered the case in Crime No.28/2018 against the accused. On the next day he visited the spot and conducted spot mahazar and prepared rough sketch. He has issued 133 notice and received reply for notice. He has received IMV report from RTO officer and he received wound certificate, IMV Report from concern officers. After completion of investigation he has filed a Charge Sheet against the accused U/Sec.279 and 337 of IPC.
During his cross examination he admits that the accident spot is situated at a distance of 20ft from bus stand and he admits that generally the BMTC buses will stop only at bus stand and he admits that he has not examined any local witness and denied the suggestions of the accused counsel.
17. Out of the documents marked for prosecution Ex.P.1 is the complaint, Ex.P.2 is the spot mahazar, Ex.P.3 is the 133 notice, Ex.P.4 is the Reply, Ex.P.5 is the wound certificate, Ex.P.6 is the FIR, Ex.P.7 is the Rough sketch, Ex.P.8 is the 133 Notice, Ex.P.9 is the Reply, Ex.P.9 is the Log sheet, Ex.P.10 is the trip sheet, Ex.P.11 is the IMV Report.
0C.C.No.5776/2018
18. In the instant case the prosecution is alleging that due to the negligent act of the bus driver the victim sustained injuries and thereby he has committed the offence punishable U/s.279 and 337 of IPC. The prosecution has to establish that the accused is the person who is driving the bus on the alleged day. To prove that aspect the prosecution has relied on P.W.3 eye witness. P.W.3 eye witness deposed that he has seen the accused while boarding the bus he seen the victim felling down and sustaining injuries and he get down from the bus and taken the injured to the hospital. The complainant deposed that he tried to board the bus from rear door and fell down and one Ramesh has taken him to hospital. The case of the prosecution is the accused bus driver did not stop his bus and moved his bus from the spot. But none of the witness deposed in that manner whereas there is contradiction in the version of injured and eye witness, the conductor of the bus is examined as P.W.4 he has also deposed in other manner none of the witness deposed in clarity that they have seen the accused driving the bus. The eye witness claim himself that he has taken the accused to the hospital and narrated the incident to the doctor. In the instant case the doctor is also examined as P.W.5 she has deposed that the injured came to her to obtain MLC certificate. Upon perusal of the overall things the eye witness does not inspire confidence.
19. The case of the prosecution is that the accused driver driven his bus in a negligent manner and due to which the victim 0 C.C.No.5776/2018 fell down and sustained injuries. The victim deposed that the bus was stopped at the bus stand others get down from the bus and while he was boarding the buis driver of the bus did not stop his vehicle and moved the bus due to which the victim fell down. There is a material contradiction between victim and eye witness. Further as per the evidence of IO the accident spot is situated at a distance of 20ft from bus stand. and admittedly the victim tried to board the bus through rear door. In such circumstances there is a cloud on the case of the prosecution with regard to the act of the accused the same was not cleared by the prosecution by adducing relevant evidence.
20. As far as other question is concerned that whether the accident took place due to rash and negligent driving of accused, it is pertinent to note that there is only one eye witness of the accident i.e., PW.2, though he stated that the Bus was being driven in a rash and negligent manner but he has not said anything about the manner of driving by the accused. So testimony being silent on this aspect, what was rash and negligent in the manner of driving by the accused has been completely left with the court to presume. In "Mohammed Aynuddin @ Miyam v. State of Andhra Pradesh 2000 Cri.L.J. 3508 a similar issue was before Hon'ble Supreme Court wherein a passenger while boarding, fell down and came under the rear wheels of the Bus. In that case the Hon'ble Supreme Court holding the driver not guilty, stated that : "An 0 C.C.No.5776/2018 accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case the driver has to explain how the accident happened without negligence on his part. Merely because a passenger fell down from the bus while boarding the bus no presumption of negligence can be drawn against the driver of the bus."
It was further held in the same case that:
"When he (accused) moved the vehicle forward his focus normally would have been towards what was ahead of the vehicle. He is not expected to move the vehicle forward when passengers are in the process of boarding the vehicle. But when he gets a signal from the conductor that the bus can proceed he is expected to start moving the vehicle. Here no witness has said, (including the conductor), that the driver moved the vehicle before getting signal to move forward. The evidence in this case is too scanty to fasten him with criminal negligence. Some further evidence is indispensably needed to presume that the passenger fell down due to the negligence of the driver of the bus. Such further evidence is lacking in this case."
21. In the present case, as well there is no nothing from the side of prosecution about the signal given by the conductor of the bus to move the bus , the prosecution has examined the conductor, but he turned hostile and none of the witness spoken about the role of the conductor. If that has been the case the charges has to be leveled against the conductor and not the driver. The evidence of PW1 and 2 are inconclusive to prove negligent or rash driving on 0 C.C.No.5776/2018 the part of the accused driver, it simply proves the factum of accident. Further, the alleged eye witness cited by the prosecution did not inspire confidence. Admittedly, the accident took place when the Bus was full of passengers and none of the passengers had shouted to stop the Bus after accident. P.W.2 speaks about getting down and passengers helping him, the same version is stated by P.W.4 conductor as well, but IO narrated incident in a different manner and complainant also says in the manner of IO there is a contradiction in the deposition of the witnesses.
22. Coming to the facts of the present case, the prosecution had to prove Rash and Negligent driving on the part of the accused for both offences u/s 279 IPC as well as 337 IPC to warrant conviction of the accused. But the above discussion clearly shows that the evidence against the accused is not conclusive and the prosecution has not been able to prove its case 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. Therefore, in the circumstances of the case, as per the rules of criminal justice if any doubt arise about the commission of the act then such doubt shall be in favour of accused. The prosecution alleged that accused driver did not provided first aid to the injured and not intimated the same to the concerned police. The victim complainant has not lodged the complaint on the same day and he lodged complaint 0 C.C.No.5776/2018 after lapse of time it cannot be brushed out that it is an after thought. To substantiate the same the court relied on P.W.5 who is the doctor and she clearly stated that injured came before her to obtain MLC on 02022018 and P.W.4 also deposed that when he enquired after the incident the complainant told that he only fell down and he will take care of the injuries. The over all examination of all the witnesses does not constitute alleged offencec punishable under Indian Motors Vehicles Act. The prosecution has failed to prove the alleged offence against the accused. Accordingly, the points under consideration are answered point No.1 to 3 IN THE NEGATIVE.
23. POINT No.4: In view of the above discussions and findings I proceed to pass the following;
ORDER Acting U/s.255(1) of Criminal Procedure code, the accused is hereby acquitted of the offences alleged against him punishable U/s.279 & 337 of IPC, SEc.134(a and b) R/w.187 of M.V.Act.
The bail bonds of accused and surety bonds shall stands cancelled after the appeal period.
0C.C.No.5776/2018 (Dictated to the Stenographer directly on computer, typed by her, corrected and then pronounced by me in the open Court this the 5 th day of May 2023).
(GAGAN M.R.) MMTC - VI, BANGALORE.
ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1 Gurumurthy PW.2 Nagaraju PW.3 Naveen PW.4 Manohar PW.5 Nalina Kumari PW.6 Krishnappa
LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1 Complaint Ex.P.2 Spot mahazar Ex.P.3 133 notice Ex.P.4 Reply Ex.P.5 Wound certificate Ex.P.6 FIR Ex.P.7 Rough sketch Ex.P.8 133 notice Ex.P.9 Reply Ex.P.10 Log sheet Ex.P.11 Trip sheet Ex.P.12 IMV Report
LIST OF WITNESSES EXAMINED FOR ACCUSED:
Nil 0 C.C.No.5776/2018 LIST OF DOCUMENTS MARKED FOR ACCUSED:
Nil (GAGAN M.R.) MMTC - IV, BANGALORE.