Bangalore District Court
Hsr Layout Tr Ps vs Rakib M D Driver Of Water Tanker No ... on 25 January, 2025
KABC080091012022
Presented on : 08-11-2022
Registered on : 08-11-2022
Decided on : 25-01-2025
Duration : 2 years, 2 months, 17 days
IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST
CLASS (TRAFFIC COURT-VI), BENGALURU CITY.
DATED THIS 25TH DAY OF JANUARY 2025.
PRESENT : Smt.AKHILA H.K. B.A., LL.B.,
JMFC (TRAFFIC COURT-VI),
BENGALURU.
CC No.8624/2022
COMPLAINANT: State by HSR Layout Traffic P.S
Bengaluru.
(State by : Learned APP)
V/s
ACCUSED NO.1: Rakib M.D.
S/o M.D. Ali
Aged about 23 years,
No.7, 1st Main Road,
Near Sadguru Satnath School,
Kudlu Main Road,
Bommanahalli,
Bengaluru - 560 068.
CC No.8624/2022
2
Permanent R/at:
Sikra Colony, Pottamala Post,
Krishna Nagar,
Chapra Thana
Nadia, West Bengal - 741 123.
ACCUSED NO.2: Anand R
S/o Late Ranga Swamy
Aged about 54 years,
Priyadarshini Enterprises,
No.66, 1st Cross, Sarja,
Kasavanahalli,
Bengaluru - 560 035.
(A1 & 2 Represented by Sri.R.P.,
Adv.,)
JUDGMENT
The Police Inspector of H.S.R. Layout Traffic Police Station has filed charge sheet against the accused No.1 and 2 for the offence punishable U/Sec.279, 304(A) of IPC, Sec.134(A & B) R/w Sec.187, Sec.3(1) R/w Sec.181, Sec.5 R/w Sec.180 and Sec.146 R/w Sec.196 of IMV Act.
2. The brief facts of the prosecution case are as under: -
CC No.8624/2022 3 That on 26.05.2022 at 12.30 p.m. accused No.1 being the driver of water tanker bearing registration No.KA-53-AD-5333 drove the same within the jurisdiction of HSR Layout traffic police station on Sarjapura road, near Kaikondrahalli Serenity layout No.81 without giving any indication drove his vehicle negligently in reverse manner and in front of Shwetha Residency apartment hit to Kum.Pratiksha aged about 4 years when she was proceeding by walk, as a result she fell down and right back wheel of the water tanker passed on her head and succumbed to death at spot. Further after the accident accused No.1 has failed to provide medical assistance to the injured and also failed to inform the same to the nearest police station. Further at the time of accident offending vehicle did not have valid insurance. Accused No.2 being the owner of the said vehicle he has given his vehicle to the accused No.1, who was not having driving license at the time of accident. As such the accused No.1 and 2 have committed an offence punishable U/Sec.279, 304(A) of IPC, Sec.134(A & B) R/w Sec.187, Sec.3(1) R/w Sec.181, Sec.5 R/w Sec.180 and Sec.146 R/w Sec.196 of IMV Act.
CC No.8624/2022 4
3. Cognizance was taken by perusing the prosecution papers and materials, the accused No.1 and 2 on receipt of summons appeared before the court and got themselves enlarged on bail. On the said date the prosecution papers were furnished to the accused No.1 and 2 as per Sec.207 of Cr.P.C. and substance of accusation in the form of plea was read over and explained to them, accused No.1 and 2 pleaded not guilty and claimed to be tried.
4. During the course of trial the prosecution has examined PWs.1 to 6 and got marked Ex.P.1 to 12. The statement of accused as per Sec.313 of Cr.P.C. was recorded the accused No.1 and 2 had no explanation and he denied the incriminating circumstances appearing against them.
5. Heard both sides.
6. The point that arises for my determination is as under:
CC No.8624/2022 5
1. Whether the prosecution proves beyond all reasonable doubt that, on 26.05.2022 at 12.30 p.m. accused No.1 being the driver of water tanker bearing registration No.KA-53-AD-
5333 drove the same within the jurisdiction of HSR Layout traffic police station on Sarjapura road, near Kaikondrahalli Serenity layout No.81 without giving any indication drove his vehicle negligently in reverse manner, thereby accused No.1 has committed an offence punishable U/Sec.279 of IPC Act?
2. Whether the prosecution proves beyond all reasonable doubt that, on the same date, time and place in front of Shwetha Residency apartment hit to Kum.Pratiksha aged about 4 years when she was proceeding by walk, as a result she fell down and right back wheel of the CC No.8624/2022 6 water tanker passed on her head and succumbed to death at spot, thereby accused No.1 has committed an offence punishable U/Sec.304(A) of IPC ?
3. Whether the prosecution proves beyond reasonable doubt that, after the accident accused No.1 has failed to provide medical assistance to the injured and also failed to inform the same to the nearest police station, thereby accused No.1 committed an offence punishable under Sec.134 (A & B) R/w Sec.187 of IMV Act?
4. Whether the prosecution proves beyond reasonable doubt that, at the time of accident accused No.1 was not having driving licence to drove the offending vehicle, thereby accused No.1 has committed an offence CC No.8624/2022 7 punishable U/Sec.3(1) R/w Sec.181 of IMV Act?
5. Whether the prosecution proves beyond reasonable doubt that, accused No.2 being the owner of the offending vehicle he has given his vehicle to the accused No.1, who was not having driving license at the time of accident and at the time of accident offending vehicle did not have valid insurance, thereby accused No.2 committed an offence punishable U/Sec.5 R/w Sec.181 and Sec.146 R/w Sec.196 of IMV Act?
6. What Order?
7. 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 : In the affirmative;
CC No.8624/2022 8 Point No.5 : In the affirmative Point No.6 : As per final order for the following;
REASONS
8. Point No.1 to 5: For the sake of convenience and to avoid repetition of facts, these points are taken up for common discussions to have brevity.
9. The prosecution case against the accused No.1 and 2 is that on 26.05.2022 at 12.30 p.m. accused No.1 being the driver of water tanker bearing registration No.KA-53-AD-5333 drove the same within the jurisdiction of HSR Layout traffic police station on Sarjapura road, near Kaikondrahalli Serenity layout No.81 without giving any indication drove his vehicle negligently in reverse manner and in front of Shwetha Residency apartment hit to Kum.Pratiksha aged about 4 years when she was proceeding by walk, as a result she fell down and right back wheel of the water tanker passed on her head and succumbed to death at spot. Further after the accident accused No.1 has failed to CC No.8624/2022 9 provide medical assistance to the injured and also failed to inform the same to the nearest police station. Further at the time of accident offending vehicle did not have valid insurance. Accused No.2 being the owner of the said vehicle he has given his vehicle to the accused No.1, who was not having driving license at the time of accident.
10. In order to bring home the charge against the accused the prosecution has examined 6 witnesses as PWs.1 to 6 and got marked Ex.P.1 to 12. Ex.P.1 is the complaint, Ex.P.2 is the spot mahazar, Ex.P.3 is the rough sketch, Ex.P.4 is the seizure mahazar, Ex.P.5 is the FIR, Ex.P.6 and 7 are the notice and reply U/Sec.133 of IMV Act, Ex.P.8 is the inquest mahazar, Ex.P.9 is the IMV report, Ex.P.10 is the PM report, Ex.P.11 is the DVD and Ex.P.12 is the 2 photos.
11. Before adverting to the appreciation of evidence it is proper to state in brief the evidence deposed by the prosecution witnesses.
CC No.8624/2022 10
12. C.W.1 examined as P.W.1 is the complainant of this case. He deposed that, in the year 2023 he and his daughter Pratiksha proceeding by walk on Sarjapura, Serenity layout at that time near one apartment one water tanker came in reverse manner and passed on his daughter as a result she sustained grievous injuries and succumbed to death at spot and he shifted his daughter's body to St. John hospital. Further he deposed that, after the accident driver of the offending vehicle went away from the spot along with is vehicle. With this regard on the same day at 4.00 p.m he lodged a complaint as per Ex.P.1. Further he deposed that, accident has occurred due to the fault of the driver of the offending vehicle. In the cross examination he has admitted that he does not know to read and write Kannada. He has denied the suggestion that he has not seen the driver of the offending vehicle in the spot. He has admitted that, in the complaint he has written hat, the driver should be traced and criminal action should be take against him. He has denied the suggestion that, he has not witnessed the accident and he was not with her at the time of the accident.
CC No.8624/2022 11
13. C.W.3 examined as P.W.2 is the mahazar witness of this case. He deposed that, C.W.1 and 2 are known to him and he signed on Ex.P.2 and 3 at HSR Layout police station with relation to accident occurred to C.W.1's daughter and along with him C.W.4 also signed on it and C.W.1 and 9 shown the accident spot to the police. In the cross examination he has admitted that, Ex.P.2 was typed and printed in the police station. He has admitted that, he does not know the contents of Ex.P.2. He has admitted that, himself, C.W.2 and 3 have signed on Ex.P.2 and 3 in the police station. He has admitted that, he is not aware about the contents of Ex.P.3.
14. C.W.2 examined as P.W.3 is the eye witness to the incident. He deposed that, he is working at Shwetha Residency Apartment and on 26.05.2022 at 12.10 p.m. after supplying water to their apartment said vehicle was proceeding in reverse manner and hit to C.W.1's daughter Pratiksha Bhat and said child succumbed to death. Further he deposed that, he has not witnessed the accident as on that day he was on leave and after seeing CC No.8624/2022 12 the CCTV footage he came to know that accident occurred due to the fault of the driver of the water tanker bearing No.515333. Further he deposed that, he signed on Ex.P.2/spot mahazar on 26.05.2022 at 4.30 to 5.30 p.m. at opposite to Shwetha residency apartment and on the same day with this regard he has given his statement to the police. Further he deposed that, accident has occurred due to the fault of the driver of the offending vehicle and deceased child as the child was proceeding without observing the vehicle. In the cross examination he has admitted that, he is not aware about the statement written down by the police officials. He has stated that, he has booked the water tanker himself and he has entered the water tanker registration number in his book. He has stated that, on the date of the accident he was on leave but he was in his room and since he was on leave he does not know the details of the vehicles which entered and exited the apartment on the said day. He admitted that, he is not aware about the contents of Ex.P.2 and 3. He has admitted that, he has signed one document in HSR Layout police station. He has denied the suggestion that, he has not witnessed the accident CC No.8624/2022 13 since he was leave on the said date. He has stated that, police have taken the CCTV footage from the apartment. He has stated that, police have not conducted mahazar at the time of receiving the CCTV footage and there were no public present at that time.
15. C.W.4 examined as P.W.4 is the mahazar witness of this case. He deposed that, on 26.05.2022 at 12.00 p.m. when he was proceeding on his work some public gathered and he came to know that one accident occurred. On the same day 4.00 to 5.00 p.m. he signed on Ex.P.2 at accident spot and along with him C.W.3 also signed. In the cross examination he has admitted that, he signed on Ex.P.2 in the police station. He has admitted that, he is not aware about the contents of Ex.P.2. He has stated that, he does not know the names of other persons who have signed Ex.P.2 along with him.
16. C.W.14 is examined as P.W.5, he deposed that, he is resident of Kaikondrahalli and accident footage recorded in his apartment CCTV camera and police took CC No.8624/2022 14 CCTV DVR from his house. Further he visited police station and transferred the CCTV footage from DVD to pen drive and at that time he signed on Ex.P.4 between 5.00 to 5.30 p.m. and he does not know on which date he signed on Ex.P.4. Learned APP has treated the said witness as hostile and cross examined him and elicited from him that he has not given any statement to the police stating that he has an expertise in operating CCTV camera. He has also stated that, in Ex.P.4 it is falsely stated that, he got the DVR from his house to the police station and converted DVR into DVD by himself in the police station. In his cross examination by the counsel for the accused he has stated that, he was not present in his house when the police collected the DVR. He has stated that, police constable has taken the DVR. He has admitted that, he does not know to read and write Kannada hence, he is not aware about the contents of Ex.P.2. He has stated that, he is aware of the procedure to copy CCTV footage from DVR to DVD but he has not obtain any training in this regard. He has denied the suggestion that, there are chances of footage in the DVD getting destroyed. He has stated that, he has copied the CC No.8624/2022 15 DVR footage into the pen drive and given in to the police. He has admitted that, the police have not taken any DVR from his house. He has admitted that, he cannot tell the capacity of the DVR. He has admitted that, the same is not mentioned in Ex.P.4.
17. C.W.18 examined as P.W.6 is the Investigating Officer and he has deposed about the investigation conducted by him. In the cross examination he admitted that, he has not seized the DVR personally from C.W.14. He has admitted that, he has not personally examine the DVR and DVR model number. He has admitted that, he has not received any certificate from C.W.14 which states that C.W.14 had the technical expertise to copy CCTV footage from DVR to DVD. He has denied the suggestion that, the accused has not appeared before him voluntarily rather he has arrested the accused from his house.
18. With the above evidence, this court has to ascertain whether the prosecution has proved the guilt CC No.8624/2022 16 of the accused beyond all reasonable doubts. In order to prove offence U/Sec.279 of IPC the prosecution has to prove;
(i) Rash and negligent driving on public way
(ii) The act must be such as to endanger human life or likely to cause hurt or injury to any person.
19. To prove an offence U/sec.304(A) of IPC the prosecution has to prove;
i) death of a person.
ii) the death occurred due to the rash or negligent act of the accused person.
iii) there must be an absence of an intention to cause death
iv) there must be a direct link between the rash and negligent act and death of the victim.
20. After marshalling all the oral and documentary evidence it is crystal clear that, in this case the involvement of the offending vehicle bearing registration No.KA-53-AD-5333 is not disputed, there is no dispute CC No.8624/2022 17 regarding the accused No.1 being the driver of the offending vehicle on the date of the accident. There is no dispute about the death of Kum.Pratiksha Bhat. As per P.M. report/Ex.P.10 the injuries are ante-mortem and death occurred due to skull fracture as a result of head injury sustained. There is no dispute regarding IMV report as per Ex.P.9, which states that there is no mechanical defects in the offending vehicle. Hence, the accident did not occur due to any mechanical defects of the vehicles involved in the accident. Since, the death of Kum.Pratiksha Bhat is not disputed, the Court only needs to consider if the accused No.1 drove his vehicle in a rash and negligent manner and due to which the accident occurred.
21. In order to prove that the accused was driving the offending vehicle in a rash or negligent manner the prosecution has examined P.W.1 and 3. P.W.1 is the defacto complainant and father of the deceased child. In the complaint marked as Ex.P.1, P.W.1 has stated that, at the time of the accident he was in his house and his daughter had gone out to play and she did not return till CC No.8624/2022 18 12.30 p.m. and hence he went looking for her at that time a water tanker was taking reverse from Shwetha residency apartment and it has hit his daughter. He has stated that, the rear right wheel of the water tanker went over his daughter's head. He has stated that, the driver of the water tanker fled from the spot. Thereafter with the help of the general public he has taken his daughter to St. John hospital in an ambulance. In his cross examination P.W.1 has admitted that, he does not know the contents of Ex.P.1 since it is in Kannada. In the chief examination before this Court P.W.1 has not mentioned anything regarding himself being in the house when his daughter went out to play and did not return back and then he went looking for her at that time accident has occurred. Admittedly, P.W.1 is an interested witness and his evidence cannot be accepted without corroboration.
22. Prosecution has examined P.W.3 as another eye witness. He is said to be security guard at Shwetha Residency Serenity layout. He has stated that, he was on leave on the date of accident and he was in his room CC No.8624/2022 19 when the accident occurred. He has stated that, he got to know about the accident after looking at the CCTV footage. He has stated that, accident has occurred because the deceased was proceeding on the road by eating lolly pop and she has not observed the vehicle coming into the road. In his cross examination he has stated that, he has entered the details of the water tanker in his book. But he was not present when the accident occurred. He has admitted that, he does not know the contents of Ex.P.2. From the evidence of P.W.2 it appears that, he was not witnessed the accident directly and he has also not mentioned anything about the presence of P.W.1 in the spot of accident. If at all P.W.1 was present he would have stated that, the child's father took her to the hospital. The fact that he did not mention the presence of P.W.1 makes the evidence of P.W.1 doubtful and not reliable. Further he has stated that, the accident occurred due to the fault of the child and the water tanker driver. He has stated that, the child was not observing the vehicles while she was walking on the road. Admittedly, the child is only 4 years old and contributory negligence on behalf of P.W.1 who is CC No.8624/2022 20 the father of the deceased child by allowing her to walk by herself on the road cannot be ruled out. Therefore, from oral evidence the prosecution is unable to prove its case.
23. Apart from oral evidence the prosecution is relying on the CCTV footage of the accident marked as Ex.P.11. According to the prosecution they have obtained the CCTV footage from Shwetha Residency belonging to C.W.14. Prosecution has stated that, C.W.14 himself appeared along with DVR in the police station and copied the DVR into a CD and he has given it to them. It is stated that, a seizure mahazar was conducted on 17.06.2022 in the police station when C.W.14 appeared with the DVR. However, C.W.14 who was examined as P.W.5 has stated that, a police constable came to his house and took the DVR from his house. Thereafter, since the police did not return the DVR he went to the police station on 17.06.2022 and at that time he has copied the CCTV footage from DVR into DVD. He has denied giving a declaration that, he has the technical expertise to convert CCTV footage in DVR to CC No.8624/2022 21 DVD. In this regard the prosecution has got marked Ex.P.4 which is the seizure mahazar. From the evidence of P.W.5 it is apparent that, there is no congruence between the evidence of P.W.5 and Ex.P.4. Prosecution has not obtained any 65-B certificate with respect to the CCTV footage copied in DVD from P.W.5. Prosecution has also not submitted the notice given to P.W.5 before conducting Ex.P.4. Therefore, the prosecution has not complied with Sec.65-B of Indian Evidence Act with respect to Ex.P.11. Hence, Ex.P.11 is not admissible in evidence. Apart from Ex.P.11 the prosecution is relying on mahazar and rough sketch i.e., Ex.P.2 and 3. In this regard the prosecution has examined P.W.2 and 4. Both have admitted that, they have signed Ex.P.2 and 3 in the police station and they are not aware about the contents of Ex.P.2 and 3. As per Ex.P.2 the place of occurrence or the spot of accident is identified by P.W.3. However, P.W.3 has stated that, he has not witnessed the accident and he came to the spot only after the accident. Hence, it is not clear how Ex.P.2 and 3 could be prepared on the say of P.W.3. As per the rough sketch point 'A' is the spot of accident. The path marked as 'B' is the CC No.8624/2022 22 direction in which the deceased child was walking. The path marked as 'C' is the path where the water tanker was going in reverse. Rough sketch shows that, there is a footpath in front of Shwetha residency where the accident occurred and the said apartment is 20 feet away from the spot of the accident. As per rough sketch there are 2 electric poles which are 25 feet from the spot of the accident. As per the rough sketch the deceased child was not walking in the footpath and she was on the road. The water tanker was taking a reverse at a distance of 25 feet from the spot of the accident. The road itself is 25 feet wide. As per the rough sketch the deceased child was about 25 feet from Shwetha residency. Rough sketch shows that the child was walking in the road about 5 feet from the footpath. Hence, the child has walked in the path of the water tanker and contributory negligence on behalf of the child cannot be ruled out. Apart from Ex.P.2 and 3 prosecution is relying on inquest, PM report. Even though the death of the child is admitted inquest and PM report do not state that the accident occurred due to the rash and negligent driving CC No.8624/2022 23 of the accused. Hence, the documentary evidence submitted by the prosecution is not helpful to this case.
24. It is the burden of the prosecution to prove the guilt of the accused No.1. The evidence placed on record do not rise up to the expectation to prove beyond reasonable doubt in so far as the involvement of accused No.1 in the incident is concerned. Therefore, the prosecution version that on the account of rash and negligent act by the accused No.1, accident has occurred cannot be held to be proved. From the cross examination it can be culled out that, it is the contention of the counsel for the accused No.1 that, the accused No.1 was not driving the offending vehicle at the time of the accident. In this regard both P.W.1 and 3 have denied the suggestion made by the counsel for the accused No.1 that they have seen the accused No.1 in the spot of the accident. However, prosecution has submitted the notice and reply U/Sec.133 of IMV Act as Ex.P.6 and 7. Ex.P.7 which is the reply to the notice issued by the police. Ex.P.7 is issued by owner of the offending vehicle. In Ex.P.7 it is stated that, accused No.1 is the driver of CC No.8624/2022 24 the offending vehicle. Ex.P.7 is not disputed by the counsel for the accused No.1. Hence, it is proved by the prosecution that accused No.1 was the driver of the offending vehicle at the time of the accident.
25. Prosecution has alleged offence U/Sec.134(A & B R/w Sec.187 of IMV Act as against accused No.1. However, as per the prosecution there was no delay in getting medical help after the accident. Further the child has succumbed at the spot itself. Therefore, liability U/Sec.134(A & B) of IMV Act has to be fixed if any persons suffers in an accident due to the delay in taking the victim to the hospital and informing the police. In this case it is appears that, timely medical aid was given to the deceased. Hence, liability U/Sec.134(A & B) of IMC Act cannot be imposed on accused No.1. However, accused No.1 has not produced his valid driving licence. Hence, he has committed offence U/Sec.3(1) R/w 181 of IMV Act. Since, accused No.1 does not have a DL accused No.2 has committed offence punishable U/Sec.5 R/w 180 of IMV Act. Accused No.2 has also not submitted valid insurance for his vehicle at the time of CC No.8624/2022 25 accident. Hence, he has committed offence punishable U/Sec.146 R/w 196 of IMV Act.
26. By ascertaining all these oral and documentary evidence it is clear that, there is no substantive, cogent and corroborative evidence to prove the guilt of the accused No.1 with respect to offence punishable U/Sec.279, 304(A) of IPC and Sec.134(A & B) R/w Sec.187 of IMV Act. Hence, point Nos.1 to 3 are answered in the negative and point No.4 and 5 are answered in the affirmative.
27. Point No.5: In view of the findings on point Nos.1 to 4, this court proceeds to pass the following;
ORDER Acting under Sec.255(1) of Cr.P.C.
accused No.1 is hereby acquitted for accusation of commission of the offence punishable U/Sec.279 and 304(A) of IPC and Sec.134(A & B) R/w Sec.187 of IMV Act.
CC No.8624/2022
26
Acting U/Sec.255(2) of Criminal
Procedure code, the accused No.1 is hereby convicted of the offences punishable U/Sec.3(1) R/w Sec.181 of IMV Act.
Accused No.1 is sentenced to pay fine of Rs.5,000/- (Rupees five thousand only) in default shall undergo simple imprisonment for a period one month for the offence punishable U/Sec.3(1) R/w Sec.181 of IMV Act.
Acting U/Sec.255(2) of Criminal Procedure code, the accused No.2 is hereby convicted of the offences punishable U/Sec.5 R/w 180 and Sec.146 R/w Sec.196 of IMV Act.
Accused No.2 is sentenced to pay fine of Rs.5,000/- (Rupees five thousand only) in default shall undergo simple imprisonment for a period one month CC No.8624/2022 27 for the offence punishable U/Sec.5 R/w 180 of IMV Act.
Accused No.2 is sentenced to pay fine of Rs.5,000/- (Rupees five thousand only) in default shall undergo simple imprisonment for a period one month for the offence punishable U/Sec.146 R/w Sec.196 of IMV Act.
Their bail bonds and surety
bonds stands cancelled after the lapse
of appeal period.
(Dictated to the stenographer directly on computer, typed by her, corrected and then pronounced by me in open court on this the 25th day of January, 2025) (Akhila H.K.) JMFC (Traffic Court-VI), Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1 Khem Raj
PW.2 Anil Joshi
PW.3 Keshav
PW.4 Umesh Bohara
CC No.8624/2022
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PW.5 Sudarshan
PW.6 Naveen Kumar
LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1 Complaint Ex.P.2 Spot Mahazar Ex.P.3 Rough sketch Ex.P.4 Seizure mahazar Ex.P.5 FIR Ex.P.6-7 Notice & Reply U/Sec.133 of IMV Act Ex.P.8 Inquest mahazar Ex.P.9 IMV report Ex.P.10 PM report Ex.P.11 DVD Ex.P.12 2 Photos
LIST OF WITNESSES EXAMINED FOR ACCUSED:
-Nil-
LIST OF DOCUMENTS MARKED FOR ACCUSED:
- Nil -
(Akhila H.K.) JMFC (Traffic Court-VI), Bengaluru.