Bangalore District Court
State By Madivala Traffic P.S vs Junaidulla Khan on 9 March, 2023
KABC080099602019
IN THE COURT OF THE METROPOLITAN MAGISTRATE
TRAFFIC COURT - VI, BANGALORE
PRESENT: SRI GAGAN M.R. B.A.L LLB
C/c. Metropolitan Magistrate
Traffic Court - VI, BANGALORE
DATED : THIS THE 9 TH DAY OF MARCH 2023
C.C. No.9750/2019
COMPLAINANT: State by Madivala Traffic P.S
Bengaluru.
(Represented by Learned APP)
V/s
ACCUSED : Junaidulla Khan
S/o Muneerulla Khan,
Aged about 48 years,
#127, 4th Cross, PNT Quarters,
Shanthi Nagar, Udayagiri,
Mysore - 570 019.
(Represented by Sri.R.R. Adv.,)
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C.C.No.9750/2019
J UD GE M E N T
The Police Inspector of Madivala Traffic Police Station has
filed the charge sheet against the accused for the offences
punishable U/s.279, 338 of IPC, Sec.134(A & B) R/w.187 of
I.M.V.Act.
2. The brief case of the prosecution is that:
On 03.11.2019 at 22.50 p.m. accused being the driver of the
private bus bearing registration No.KA-51-AB-0034 drove the same
within the jurisdiction of Madivala Traffic Police station on
Madivala main road from Sarjapura towards Madivala by that time
the said bus was stopped for tea break near Shyam Tours &
Travels, meanwhile passengers were getting down from the bus and
one passenger by name Sri.H.C. Shivanna was trying to get down
from the bus during that time without observing the passenger the
driver negligently drove the bus, due to the said act above said
passenger fell down from the bus and sustained fracture on his left
hand. Further on the day of accident 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, 338 of IPC, Sec.134(A & B) R/w.187
of I.M.V.Act.
3. Upon taking cognizance, case came to be registered
against accused for the offences punishable U/s.279, 338 of IPC,
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C.C.No.9750/2019
Sec.134(A & B) R/w.187 of I.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.
4. Plea came to be framed for the offences U/s.279, 338 of
IPC, Sec.134(A & B) R/w.187 of I.M.V.Act for which accused
pleaded not guilty claimed to be tried.
5. During the course of trial, the prosecution has
examined 4 witnesses as P.Ws.1 to 4 and got exhibited documents
as per Ex.P.1 to Ex.P.10. 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 03.11.2019 at 22.50 p.m. accused being the driver of the private bus bearing registration No.KA-51-AB-0034 drove the same within the jurisdiction of Madivala Traffic Police station on Madivala main road from Sarjapura towards Madivala by that time the said bus was stopped for tea break near Shyam Tours & Travels, 4 C.C.No.9750/2019 meanwhile passengers were getting down from the bus and one passenger by name Sri.H.C. Shivanna was trying to get down from the bus during that time without observing the passenger the driver negligently drove the bus, due to the said act above said passenger fell down from the bus and sustained fracture on his left hand, thereby the accused has committed an offence punishable U/s.279 & 338 of IPC?
2. 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 and b) R/w. Sec.187 of M.V.Act?
3. 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: AS PER THE FINAL ORDER For the following REA S ON S
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 03.11.2019 at 22.50 p.m. accused being the driver of the private bus bearing registration No.KA-51-AB-0034 drove the same within the jurisdiction of Madivala Traffic Police station on Madivala main 5 C.C.No.9750/2019 road from Sarjapura towards Madivala by that time the said bus was stopped for tea break near Shyam Tours & Travels, meanwhile passengers were getting down from the bus and one passenger by name Sri.H.C. Shivanna was trying to get down from the bus during that time without observing the passenger the driver negligently drove the bus, due to the said act above said passenger fell down from the bus and sustained fracture on his left hand. Further on the day of accident the accused did not provide medical aid to the injured nor he intimated the police about the accident..
11. In order to prove the contents of complaint the prosecution examined 4 witnesses as P.W.1 to P.W.4 and marked 10 documents as Ex.P.1 to Ex.P.10.
12. C.W.1/Shivanna H.C. examined as P.W.1 who is victim/complainant of this case. He deposed that on 03.11.2019 at about 10.30 to 11.00 p.m. he was proceeding in Shyam Travels bus bearing registration No.KA-51-0034 and near Madivala Check post driver of the bus stopped the bus to have tea by that time he was trying to get down from the bus meanwhile driver suddenly moved the bus. Due to that he fell down and he sustained injuries on his left hand and he went to Krishna hospital for treatment. Further he deposed that he has not seen the driver of the offending vehicle. 3-4 days after the incident he lodged a complaint as per Ex.P.1 before the police. Further he deposed that accident was occurred due to the fault of the driver of the offending vehicle.
6C.C.No.9750/2019 During his cross examination he admits that St. John hospital is situated at a distance of 50 meters, he cannot deposed the exact place of the incident. He further admits that the Krishna hospital is known to his relatives and he has not given any statement in police station and denied the suggestions of the defence.
13. C.W.7/Mahadevaiah examined as P.W.2 who is investigating officer of this case. He deposed that on the basis of information given by C.W.1 on 5.11.2019 he received the complaint and registered the case in Crime No.102/2020 against the accused. 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 338 of IPC.
During his cross examination he admits that he has not received any complaint or information from the control room or through his personal with regard to the incident, he has not received any statement from the complainant, the complainant has not visited the police station. He did not find any eye witness to the accident. He denied the suggestions of the defence.
14. C.W.2/R.Uday Gowda examined as P.W.3 who is eye witness of this case. He deposed that on 03.11.2019 at 10.50 p.m. 7 C.C.No.9750/2019 he and C.W.3 were proceeding in their two wheeler by that time near the Sham Tours & Travels bus bearing No.KA-51-AB-0034 was stopped and passengers were getting down from the bus meanwhile without giving any indication driver suddenly moved the bus, due to that C.W.1 fell down and sustained injuries on his right hand. With this regard he has given his statement before the police. After two days of the incident at incident spot at 5.30 p.m. police conducted spot mahazar as per Ex.P.3 and obtained his signature on it and by that time C.W.3 also signed on Ex.P.3. The witness was treated as hostile by the prosecution he was subjected to cross examination with regard to identification of the accused but nothing worth-full is elicited from his mouth.
During his cross examination he clearly deposed that he put his signature on spot mahazar in police station, he does not know the contents of the mahazar. He further admits that he is seeing the accused for the first time.
15. C.W.4/Deepak examined as P.W.4 who is registered owner of the offending vehicle. He deposed that bus bearing No.KA- 51-AB-0034 belongs to their company and he has given reply as per Ex.P.6 to the notice U/Sec.133 of IMV Act issued by the police. Further he deposed that accused is the driver of the above said bus.
8C.C.No.9750/2019 During his cross examination he deposed that he cannot exactly say who is the driver for the particular bus on particular day and he has not furnished the details of the drivers, photo with the police. The police has not given him any direction to produce the accused before them. The police has obtained the signature on blank sheet, he has not seen the accused prior to this day.
16. Out of the documents marked for prosecution Ex.P.1 is the complaint, Ex.P.2 is the FIR, Ex.P.3 is the spot mahazar, Ex.P.4 is the rough sketch, Ex.P.5 & 6 are the Notice and reply U/Sec.133 of IMV Act, Ex.P.7 is the indemnity bond, Ex.P.8 is the wound certificate, Ex.P.9 is the IMV report and Ex.P.10 is the part statement of P.W.3.
17. 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 338 of IPC. The prosecution has to establish that the accused is the person who is driving the bus on the alleged day. With regard to that aspect the prosecution has utterly failed to prove the same. The complainant has not identified the accused. The claimed eye witness P.W.3 also turned hostile with regard to identification of the accused. The owner of the bus is examined as P.W.4 though he supports the case in chief examination but in his cross examination he deposed opposite to the said version and further stated that the police obtained signatures on blank papers and he 9 C.C.No.9750/2019 did not know the contents of Ex.P.6 which is reply to Sec.133 of IMV Act notice. In such circumstances there is a cloud on the case of the prosecution with regard to the identification of the accused the same was not cleared by the prosecution by adducing relevant evidence.
18. 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.3, 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 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."
10C.C.No.9750/2019 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."
19. 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 not examined the conductor 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 is inconclusive to prove negligent or rash driving on the part of the accused driver, it simply proves the factum of accident. Further, there is no other eye witness cited by the prosecution. 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, but none of those passengers were made witness in this case. Had any of those passenger been cited as a witness and had appeared in the court for deposition, it would have helped this court in making a better appreciation of the facts and circumstances of the case.
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20. 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 338 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. The prosecution has further alleged that the accused driver has not provided the medical aid to the victim and did not intimated the same to the concerned police. Hence he has committed the offence punishable U/s.134(a and b) R/w.187 of M.V.Act. Here the complaint is lodged lately and it cannot be brushed out that it is an after thought of the complainant to lodge a complaint with regard to any other incident and as far as providing medical aid is concerned the alleged incident itself is not established to the satisfaction of the court, the incident appears to be doubtful and there is no notice of incident by either public or accused the question of providing medical aid does not arise. 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 has failed to prove the alleged offence against the accused. Accordingly, the points under consideration are answered point No.1 & 2 IN THE NEGATIVE.
12C.C.No.9750/2019
21. POINT No.3: In view of the above discussions and findings I proceed to pass the following;
O RDE R
Acting U/s.255(1) of Criminal
Procedure code, the accused is hereby
acquitted of the offences alleged against him punishable U/s.279 & 338 of IPC.
Acting U/s.255(1) of Criminal Procedure code, the accused is hereby acquitted of the offences alleged against him punishable U/s.134(A & B) R/w.187 of I.M.V.Act.
The bail bonds of accused and surety bonds shall stands cancelled after the appeal period.
(Dictated to the Stenographer directly on computer, typed by her, corrected and then pronounced by me in the open Court this the 9 th day of March 2023).
(GAGAN M.R.) C/c. MMTC - VI, BANGALORE.
ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1 Shivanna H.C.
PW.2 Mahadevaiah
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C.C.No.9750/2019
PW.3 R. Uday Gowda
PW.4 Deepak
LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1 Complaint Ex.P.2 FIR Ex.P.3 Spot mahazar Ex.P.4 Rough sketch Ex.P.5 Notice U/s 133 of IMV Act Ex.P.6 Reply to the notice U/s 133 of IMV Act Ex.P.7 Indemnity bond Ex.P.8 Wound Certificate Ex.P.9 IMV report Ex.P.10 Part statement of PW.3
LIST OF WITNESSES EXAMINED FOR ACCUSED:
Nil LIST OF DOCUMENTS MARKED FOR ACCUSED:
Nil (GAGAN M.R.) C/c MMTC - VI, BANGALORE.