Bangalore District Court
State By vs Nishanth.K.Rao on 7 August, 2021
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH-67)
DATED: This the 7 th day of August, 2021
PRESENT
Smt. K.KATHYAYANI, B.Com., L.L.M.,
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.
S.C.No.04 of 2018
COMPLAINANT : State by:
Kamakshipalya Traffic Police Station,
Bengaluru.
(By Public Prosecutor)
/Vs/
ACCUSED: 1.Nishanth.K.Rao,
S/o Krishnoji Rao,
Aged about 25 years.
2. Krishnoji Rao,
S/o late Puttaswamy,
Aged about 49 years.
Both are residing at:
No.45, I Floor, 9th E Cross,
Byraveshwara Nagar,
Nagarabhavi Main Road,
Bengaluru 560 072.
(By Sri.L.Shankarappa, advocate.)
DATE OF:
Occurrence of offence : 01.01.2015
2 S.C.No:04/2018
Commencement of trial : 04.11.2019
Closing of trial : 15.01.2021
Name of the complainant : Sri.C.Puttaramu.
Offence alleged : Under Sections 279,
304 of IPC and Sections 3(1)
r/w Sections 181 and 185, 146
r/w 196, 5 r/w 180 of MV Act.
Opinion of the judge : Charges leveled
against accused are
partially proved.
Sentence or order : A-1 is acquitted
A-2 is convicted
JUDGMENT
Kamakshipalya Traffic police have filed the present charge sheet against the accused in Crime No.02/2015 for the offences punishable under Sections 279 and 304 of IPC and Sections 3(1) read with Sections 181, 185, 146 read with Section 196 and Section 5 read with Section 180 of IMV Act.
2. The brief facts of the prosecution case are that;
a) On 01.01.2015 at about 01:15 a.m., A-1 being the rider of the motor cycle bearing registration No.KA-02 EU- 1375 belonging to A-2 who had no valid permit and insurance policy to the said vehicle, under the influence of 3 S.C.No:04/2018 alcohol, rode the said bike along with the pillion rider Sri.S.Jagannathrao, aged 55 years, having full knowledge that in an intoxicated condition, may cause danger to life.
b) A-1 rode the bike from Chandralayout towards Bangalore University in a rash and negligent manner and when reached near Nagarabhavi within the jurisdiction of Kamakshipalya Traffic Police station, dashed the same to the auto rickshaw bearing registration No.KA-02 AC-7287 driven by CW-4/Sri.Karthik.K.
c) Due to the impact, A-1 along with the pillion rider fell down. Because of which, the pillion rider Sri.S.Jagannatharao/the husband of CW-8 Smt.A.V.Geethabai sustained grievous head injuries and succumbed to the same on the way to the Panacea hospital. Accordingly, the complaint was filed.
3. After the investigation, the charge sheet was filed against A-1 and A-2 for the offences alleged.
4. The jurisdictional Magistrate has taken the cognizance against A-1 and A-2 for the offences alleged.
5. A-1 and A-2 appeared before the trial Court and were enlarged on bail.
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6. Since the offences are exclusively triable by the Sessions Court, the trial Court has committed the case against A-1 and A-2 to the Principal City Civil and Sessions Judge, Bengaluru.
7. On committal, the case was made over to this Court for disposal in accordance with law.
8. In response to the service of summons by this Court, A-1 and A-2 appeared and were enlarged on committal bail.
9. After hearing both the sides on framing charges, charges framed and plea of A-1 was recorded for the offences punishable under Sections 279 and 304 of IPC as well as Sections 185 and 3(1) read with Section 181 of IMV Act and plea of A-2 was recorded for the offences under Sections 146 read with Section 196 and Section 5 read with Section 180 of IMV Act for which, they pleaded not guilty and claimed to be tried by this Court. Hence, the case was posted for trial.
10. In the course of trial, the prosecution in all, got examined 12 witnesses i.e. CWs-3, 4, 5, 8, 7, 1, 11, 14, 16, 15, 10, 13 and 12 as PWs-1 to 12 respectively. Got 5 S.C.No:04/2018 exhibited 13 documents at Ex.P-1 to 13. No material objects were marked.
11. Since there was incriminating evidence against A- 1 and A-2, their statement under Section 313 of Cr.P.C. was recorded, wherein A-1 and 2 denied all incriminating evidence adduced and produced by the prosecution against them and they neither produced nor adduced any evidence on their defence.
12. Heard arguments of both the sides on merits of the case and perused the record.
13. Out of above said facts and circumstances of the case, the points that arose for the due consideration of this Court are;
1. Whether the prosecution proves beyond all reasonable doubts that on 01.01.2015 at about 01:15 a.m. A-1 being the rider of motor cycle bearing registration No.KA-02 EU-1375, along with pillion rider S.Jagannathrao, rode the same in a rash and negligent manner so as to endanger human life from Chandra Layout towards Bangalore University and thereby A-1 committed the offence punishable under Section 279 of IPC?
2. Whether the prosecution further proves beyond all reasonable doubts 6 S.C.No:04/2018 that on the said date, time and place, A-1 rode the above bike under the influence of alcohol having full knowledge that in an intoxicated condition he may cause danger to life and thereby A-1 has committed the offence punishable under Section 185 of the IMV Act?
3. Whether the prosecution further proves beyond all the reasonable doubts that when they reached near Nagarabhavi Circle, within the jurisdiction of Kamakshipalya Traffic Police station, A-1 dashed the above bike to the auto rickshaw bearing Registration No.KA-02 AC-7287 driven by CW-4/Sri.Karthik.K.
a) Due to which, A-1 along with the pillion rider Sri.Jagannatharao/the husband of CW-8 Smt.A.V.Geethabai fell down on the ground and the pillion rider sustained grievous head injuries and succumbed to the same on the way to the Panacea hospital and thereby A-1 committed the offence punishable under Section 304 of IPC?
4. Whether the prosecution further proves beyond all reasonable doubts that on the said date, time and place, A-1 rode the above bike without having valid license and thereby A-1 has committed the offence punishable under Section 3 read with Section 181 of IMV Act?
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5. Whether the prosecution further proves beyond all reasonable doubts that A-2 being the owner of the above bike having no due insurance policy/coverage to the above bike permitted A-1 to ride the same over the public way and thereby A-2 has committed the offence punishable under Section 146 read with Section 196 of IMV Act?
6. Whether the prosecution further proves beyond all reasonable doubts that A-2 being the owner of the above bike having no valid permit of the same permitted A-1 to rode the said bike on public way and thereby A-2 committed the offence punishable under Section 5 read with Section 180 of IMV Act?
7. What Order?
14. The answer of this Court to the above points are;
1. Points Nos.1 to 4 : In Negative.
2. Points Nos.5 and 6 : In Affirmative.
3. Point No.7 : As per the final order for the following reasons.
REASONS
15. POINTS Nos.1 TO 3:- As these points require common discussions, to avoid repetitions and for the sake of convenience, they are taken together for consideration. 8 S.C.No:04/2018
16. Before venturing into the discussions on merits, let this Court first to go through the relevant provisions of law alleged against the accused to know the ingredients that attract the offences alleged.
17. So far these points, the relevant provisions are Sections 279 and 304 of IPC as well as Section 185 of the IMV Act and they are extracted here below;
"279. Rash driving or riding on a public way.- Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
So, the ESSENTIAL INGREDIENTS are;
(a) A person drives any vehicle or rides (any human being),
(b) Such driving or riding is on any public way.
(c) It is done in a manner so rash and negligent-
(i) as to endanger human life or, 9 S.C.No:04/2018
(ii) as to be likely to cause hurt or injury to any other person.
18. In the present case on hand, it is the allegations of the prosecution that A-1 being the rider of the bike rode it on the public way in a rash and negligent manner. Hence, the allegations attract the offence under Section 279 of IPC and it is subject to proof.
19. The next provision is i.e., the other offence alleged is under Section 304 of IPC which reads;
"304. Punishment for culpable homicide not amounting to murder.- Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to one year, and shall also be liable to fine, if the act by which the deal is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause which bodily injury is likely to cause death.10 S.C.No:04/2018
20. So the above provision is a penal clause for culpable homicide not amounting to murder. Hence, it is necessary to have a look at Section 299 of IPC which covers "culpable homicide" and Section 300 of IPC to see, what is "murder" which are extracted here below;
"299. Culpable Homicide.- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Explanation 1.- A person who causes bodily injury to another who is labouring under a disorder, diseased or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
300.- Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly.- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 11 S.C.No:04/2018 Thirdly.- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly.- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1.- When culpable homicide is not murder. - culpable homicide is not murder if the offender, whilst deprived of the power of self-
control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos.-
First.- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.12 S.C.No:04/2018
Thirdly.- That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2.- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Exception 3.- Culpable homicide is not murder if the offender, being a public servant or acting a public servant action for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill will towards the person whose death is caused.
Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden 13 S.C.No:04/2018 fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner.
Explanation 4.- It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5.- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
So the ESSENTIAL INGREDIENTS are;
Culpable homicide is murder if the act by which death is caused is done with any of the intentions or knowledge mentioned below:
(a) Intention of causing death.
(b) Intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom harm is caused.
(c) Intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
(d) Knowledge that the act is immunently dangerous that it must in all probability, cause death or such 14 S.C.No:04/2018 bodily injury as it likely to cause death, the act having been committed without any excuse for murdering, the risk of causing death for such (bodily) injury as aforesaid.
Exceptions.- Culpable homicide is not murder if the case falls within any of the five exceptions to Section
300.
21. In the present case on hand, it is the allegation of the prosecution that;
a) A-1 under the influence of alcohol;
b) Being the rider of the bike along with the pillion rider Sri.Jagannatharao rode the said bike in a rash and negligent manner;
c) Having full knowledge that in an intoxicated condition, he may cause danger to life; and
d) Dashed to the auto.
e) Due to the impact, both A-1 and the pillion rider fell down on the ground; the pillion rider sustained severe head injuries and succumbed to the said injuries on the way to the hospital.
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22. So, the death is caused by accident. Hence, it falls under Exception 1 to Section 300 of IPC and punishable under Section 304 of IPC.
23. With regard to allegation of drunken drive, the offence alleged is under Section 185 of IMV Act which reads;
"185. Driving by a drunken person or by a person under the influence of drugs.- Whoever, while driving, or attempting to drive, a motor vehicle,-
(a) has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser or in any other test including a laboratory test, or
(b) is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle, shall be punishable for the first offence with imprisonment for a term which may extend to six month or with fine of ten thousand rupees, or with both; and for a second or subsequent offence, with imprisonment for a term which may extend to two years, or with fine or fifteen thousand rupees, or with both.
Explanation.- For the purposes of this section, the expression "drug" 16 S.C.No:04/2018 means any intoxicant other than alcohol, natural or synthetic or any natural material or any salt, or preparation of such substance or material as may be notified by the Central Government under this Act and includes a narcotic drug and psychotropic substance as defined in clause (xiv) and clause (xxiii) of Section 2 of the Narcotic Drugs and psychotropic Substances Act, 1985.
24. In the present case on hand, it is the allegation of the prosecution that the alcohol in the blood of A-1 was 141 mg. per 100 ml. Hence, it attracts the offence under Section 185(a) of IMV Act and it is subject to proof.
25. As noted above, to prove its allegations, the prosecution got examined 12 witnesses; got exhibited 13 documents and got marked no material objects.
26. On the other hand, none of the accused let in any defence evidence. However, if the cross examination done to the prosecution witnesses is taken note off, it is clear and on the face of it that the defence is that the deceased was the rider and the accused was the pillion rider, but for the sake of compensation to the legal heirs of the deceased, A-1 is falsely implicated.
17 S.C.No:04/2018
27. So, the fact of the accident; the vehicles involved in the accident and the death of the deceased due to the accidental injuries are not in dispute. Hence, to prove the alleged offences against A-1 under Sections 279 and 304 of IPC as well as Section 185 of the IMV Act, the prosecution is required to prove the facts that;
a) A-1 was the rider of the bike; rode the bike in a rash and negligent manner having knowledge that the act is immunently dangerous that it must in all probability, cause death or such bodily injury as it likely to cause death.
b) A-1 was under the influence of alcohol and the alcohol in the blood of A-1 was exceeding 30 mg. per 100 ml. of blood detected in the test.
28. In the above back ground, let this Court to see the evidence on record. It is in the charge sheet that CW-1 Sri.C.Puttaramu is the then PSI of the complainant police station and he is the complainant of the case and examined as PW-5. He has deposed that;
a) On 31.12.2014, he was on night beat from 10:00 p.m., to 8:00 a.m. Around 1:15 a.m., he received both 18 S.C.No:04/2018 wireless and phone message that there was an accident near Nagarabhavi Circle.
b) So, he rushed to the spot immediately. The public were already at the spot. The vehicles involved in the accident i.e., a two wheeler and an auto rickshaw were also at the spot. But, the injured were not there.
c) On enquiry, the public informed that there was an accident in between the above auto rickshaw and the two wheeler, wherein the pillion rider of the two wheeler sustained injury and was taken to Panacea hospital in 108 ambulance.
d) So, immediately, he rushed to the Panacea hospital and enquired the injured by name Nishanth K.Rao i.e., A- 1, who sustained simple injuries and the another injured was on stretcher and was not in a position to talk.
e) The enquiry revealed that Nishanth K.Rao i.e., A-1 was the rider and there was smell of alcohol consumption from his mouth. With the permission of the duty doctor, he got examined A-1 with alcohol meter and found the reading 141/100 mg. and the said reading is Ex.P-4. 19 S.C.No:04/2018
29. At this stage itself, let this Court to note that the plain reading of Ex.P-4 is in support of the above oral evidence of CW-4.
30. It is also in the chief evidence of CW-1 that;
a) The enquiry with the duty doctor revealed that the pillion rider was brought dead. He intimated about the incident to his higher officers and on their instructions, requested the duty doctor to take samples of blood and urine of the rider.
b) He enquired with regard to the persons intending to file complaint. There were none. Hence, on the instructions of his higher officers, he gave the complaint at Ex.P-5.
31. Let this Court to note at this stage itself that the plain reading of the complaint at Ex.P-5 demonstrates that it is in support of the above noted oral evidence of CW-1 with regard to;
a) The alleged incident;
b) His coming to know about the incident;
c) His visit to the hospital;
20 S.C.No:04/2018
d) His coming to know that A-1 was the rider and the deceased was the pillion rider of the bike; A-1 was under
the influence of alcohol and the pillion rider was brought dead to the hospital and his request to the duty doctor for blood and urine test of A-1.
32. But, his above noted chief evidence that "the another injured was on stretcher and was not in a position to talk" finds no place in the complaint at Ex.P-5.
33. CW-1 has identified A-1 before the Court with his name and has further deposed that he came to know that the accident is because of the drunk and drive of A-1.
34. In his cross examination, CW-1 has deposed that;
a) The driver of the auto rickshaw was not available in the hospital. He did not mention the above fact in his complaint at Ex.P.5.
b) He received the information about the accident around 1:20 to 1:25 a.m. and within 5 - 7 minutes, he reached the spot.
35. But, it is strange that he/CW-1 has also deposed that he does not remember where he was when he received the information and he cannot say the distance between 21 S.C.No:04/2018 the said place and the accident spot as he has specifically deposed that within 5 to 7 minutes, he reached the spot, but says that he does not know the distance that too being an officer of the rank of PSI.
36. CW-1 has also deposed in his cross examination that he cannot say specifically amongst the public, who narrated the accident and he has not mentioned about the name and address of the rider of the two wheeler in the complaint at Ex.P.5. But, the complaint at Ex.P-5 in the back page at the 3rd line, the rider name is written as Nishanth K.Rao i.e., A-1.
37. To the question that he has no specific information with regard to the fact that who was the rider of the two wheeler, CW-1 though deposed "yes", has further stated specifically that he heard that it was Nishanth K.Rao.
38. CW-1 has also deposed in his cross examination that he does not know if it is suggested that the deceased was the rider and A-2 was the pillion rider. However, he has denied the suggestions that;
22 S.C.No:04/2018
a) To help the L.Rs., of deceased to get compensation, he gave false evidence that A-1 was the rider of the two wheeler.
b) Though, he was well aware that the deceased was the rider of the two wheeler, he filed false complaint and Ex.P-4 is a created document for the sake of present case.
39. It is in the charge sheet that CWs-2 to 4 are the eye witnesses to the accident i.e., the passer, the inmate and the driver respectively of the auto involved in the accident, amongst whom the prosecution is successful in getting examined CWs-3 and 4 i.e., the inmate and the driver of the auto.
40. CWs-3 and 4 are respectively examined as PWs-1 and 2. Their chief evidence is almost similar to each other. They have deposed that;
a) On 01.01.2015 around 1:15 a.m., they were proceeding in the auto rickshaw from Nayandahalli towards Ullala Satellite Town via Ring Road near Nagarabhavi Circle and they were on service road.
b) By that time, A-1 Nishanth being the rider of bike bearing registration No.KA-02 EU-1375 along with a pillion 23 S.C.No:04/2018 rider, came from the right cross road in a zig zag manner with high speed from Chandra Layout towards University and dashed against their auto rickshaw at the front side and moved further and dashed to the divider.
c) Due to the impact, the pillion rider fell down and sustained bleeding injuries over the backside of the head. They immediately rushed to the spot, called ambulance at "108".
41. CW-3 has deposed that they sent the injured to the Panacea hospital and later, he heard that on the way to the hospital, the injured succumbed to the injuries. On the other hand, CW-4 has deposed that they took the injured to Panacea hospital and the doctors declared that the injured was brought dead.
42. CWs-3 and 4, both of them similarly deposed that;
a) Both the rider and the pillion rider were under the influence of alcohol. The accident is because of the negligence of the rider of the bike since he was drunken and driving.
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b) In the accident, the front wind glass of their auto rickshaw was broken.
43. CW-3 has also deposed that on the next day, the police called him to the accident spot and conducted mahazar from 4:00 to 5:00 p.m. as per Ex.P-1; he shown the spot to the police. The police enquired him about the details of the accident and prepared a spot sketch at Ex.P-
2.
44. Both CWs-3 and 4 have deposed that they gave the statement before the police about the incident.
45. So, except the fact of accompanying the injured to the hospital in the ambulance or remaining in the spot on sending the injured to the hospital, the evidence of both CWs-3 and 4 is similar. Thus, the chief evidence of CWs-3 and 4 clearly demonstrates that excluding the above fact, both of them deposed supporting the prosecution.
46. In his cross examination, CW-3 has denied the suggestion that at 1:15 a.m., as there was dark, one cannot observe the vehicles on either side of the road. At this stage, he has voluntarily stated that there were street lights.
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47. CW-3 has also deposed that;
a) He was the only inmate in the auto rickshaw. Though, he has admitted the suggestion that since the driver was ahead, he could not see the opposite coming vehicles, he has voluntarily stated that but, he saw the vehicles moving by the side.
b) He was proceeding from Nayandahalli. The width of service road, on which, they were proceeding might be 20 feet.
48. CW-3 has admitted the suggestion that by that time, there were many a vehicles moving and since it was dark time, all the vehicles switched on head lights, but has denied that because of which, the vehicles moving on the road could not be observed and voluntarily deposed that the suggestion may be correct in the case of opposite coming vehicles, but not in the case of vehicles moving from the side.
49. He has also deposed that he saw the CT-100 two wheeler for the first time from around 50 meters. The two wheeler was black colour.
26 S.C.No:04/2018
50. CW-3 has admitted the suggestions that when he saw the two wheeler first time, he could not see specifically the rider and the pillion rider and after the accident, he and the auto driver traveled 50 meters and reached the spot.
51. To the question that both the riders were on the road, CW-3 has answered that the pillion rider was on the road and A-1 was already raised.
52. He has denied the suggestion that he did not see the accident personally and not only denied the suggestion that the deceased was the rider of the two wheeler, he has voluntarily deposed that he/A-1 was the pillion rider.
53. CW-3 has also deposed that in the spot, after the accident, he came to know about the names of the rider and the pillion rider. He went to the spot at 1:15 a.m. and when the accident took place, it may be 1:20 a.m.
54. He has also deposed that within 10 minutes, the police came to the spot. To the question that whether it was CW-1, he has answered "yes".
55. CW-3 has also deposed that he, CWs-1 and 4 might have been in the spot for around 10 minutes. CWs-1 27 S.C.No:04/2018 and 4 had gone to hospital. He remained in the spot for around 40 minutes in the auto rickshaw and thereafter, the auto rickshaw was taken to the police station and he was outside the police station.
56. It is also in the cross examination of CW-3 that on the same day, i.e., on 1st, he was taken to the spot to show it, wherein the police enquired him and took his signature.
57. He has admitted the suggestion that he put the signature to Ex.P-1 in the police station. At this stage, he has voluntarily deposed that he put it in the spot. It was written by police, i.e., Sri.Puttaraju (i.e., CW-1). But, as per the police papers, it is CW-16 who has conducted the mahazar at Ex.P-1 and the same is supported by Ex.P-1.
58. CW-3 has also deposed that Ex.P-1 was written in between 4:00 and 5:00 a.m. which is supported by Ex.P- 1 as it is mentioned there that it was conducted in between 4:15 a.m. to 5:15 a.m. CW-3 has denied the suggestion that he does not know the recitals of Ex.P.1. So, except the IO who has conducted the mahazar at Ex.P-1, CW-3 28 S.C.No:04/2018 supported the prosecution with regard to the other contents of Ex.P-1.
59. CW-3 has denied the suggestion that on the instance of police, to help the L.Rs., of the deceased to get compensation, he gave false evidence that A-1 was the rider of the two wheeler and he did not see the accident and he did not give the statement before the police.
60. On the other hand, it is in the cross examination of CW-4 that;
a) At 1:15 a.m., is the dark time, but has denied that since 1:15 a.m., is the dark time and he was the driver of the auto rickshaw, he could not see the rider and pillion rider of the motor cycle or any other vehicles.
b) Though he has admitted that on that day, new year function was being celebrated by the public, he has denied that because of which, there were vehicular movements on both the ways.
61. He has denied the suggestion that by that time, there were many a vehicles moving on the service road.
62. CW-4 in his cross examination has also deposed that he saw the two wheeler for the first time from 100-150 29 S.C.No:04/2018 meters. He did not say before the I.O., with regard to the above distance. The distance between the accident spot and the place where his auto rickshaw was, may be around 200 meters and he has admitted the suggestion that after the accident, he traveled a distance of 150 meters to reach the spot.
63. CW-4 has also deposed in his cross examination that when he came to the spot, it was 1:15 a.m. After the accident, the public gathered at the spot. They may be around 20 persons. The pillion rider alone was on the ground and the rider had already raised since he sustained simple abrasions.
64. He has admitted the suggestion that in the dark time, at a distance from 150 meters, one could not clearly see the rider and the pillion rider on the motor cycle and has denied the suggestions that the deceased was the rider and A-1 was the pillion rider, but to help the L.Rs., of the deceased to get the compensation, he gave false evidence that A-1 was the rider and the deceased was the pillion rider.
30 S.C.No:04/2018
65. CW-4 in his cross examination has also deposed that;
a) The width of the service road may be 15-30 feet.
b) He came to know that A-1 was under the influence of alcohol at the spot, at the hospital and also at the station.
c) He was in the spot around 20-30 minutes. In the meanwhile, the police officer Sri.Puttaramu/CW-1 came to the spot and enquired about the accident and he has narrated. He has stated the above fact, i.e., narrating the incident to CW-1 before the IO in his statement.
d) CW-1 came to the hospital in their auto rickshaw. He was in the Panacea hospital for around 10 - 15 minutes. From the hospital, he went to the police station. CW-1 also came to the station, but in his vehicle. He had no impediment to lodge the complaint.
e) He left his auto rickshaw in the police station. So, he went to the police station continuously for 3-4 days. In those days, he put his signature to his statement in the police station. It is on 1st.
31 S.C.No:04/2018
66. CW-4 has denied the suggestion that if really, he saw the accident personally, he would have lodged the complaint personally, thus, it indicates that he did not see the accident personally.
67. CW-4 has also deposed that he did not produce the broken parts of his auto rickshaw to the police. At this stage, he has voluntarily stated that his vehicle sustained simple damages. He has denied the suggestion that his vehicle did not suffer any damages because of the alleged accident by the two wheeler.
68. So, if the above noted evidence of CWs-1, 3 and 4 are taken in a nut shell, as per the evidence of CW-1, when he came to the spot, the vehicles were in the spot, but not the injured; he was intimated by the public that the injured were shifted to Panacea hospital by 108 ambulance. He has not stated with regard to the presence of CWs-3 and 4 in the spot and they narrating him about the accident. On the other hand, he has specifically deposed that he did not find the auto driver in the hospital.
69. On the other hand, it is the evidence of CW-3 that they called the 108 ambulance and sent the injured to the 32 S.C.No:04/2018 hospital. But, it is the evidence of CW-4 that they called the 108 ambulance and taken the injured to the hospital, but in his cross examination, he has also stated that he was in the spot for around 20 - 30 minutes. Thus, the evidence of CW-4 is contradictory to his own chief evidence.
70. It is in the evidence of both CWs-3 and 4 that when CW-1 came to spot, they were in the spot and narrated about the accident to him. CW-4 has also deposed that CW-1 came to hospital in their auto rickshaw. On the other hand, CW-3 has deposed that CWs-1 and 4 went to the hospital and he remained in the spot for around 40 minutes in the auto. Thereafter, the auto was taken to the police station and he was out side the station. But, CW-4 has deposed that from the hospital, he went to the police station and CW-1 also came to the station, but by his vehicle.
71. So, the above noted evidence of CWs-1, 3 and 4 clearly demonstrates that there is material contradictions in their evidence with regard to the; 33 S.C.No:04/2018
a) Presence of CWs-3 and 4 in the spot when CW-1 reached the spot;
b) CWs-3 and 4 narrating about the incident to Cw-1;
c) The meeting of CWs-1, 3 and 4;
d) The person brought the auto to the station and the place from where the auto was shifted to the station; and
e) The mode of conveyance of;
(i) CW-1 to the spot, from spot to the hospital and from the hospital to the station;
(ii) CW-3 from the spot to the station; and
(iii) CW-4 from the spot to the hospital and from the hospital to the station.
72. With regard to the fact that who was the rider of the bike, as noted above, CW-1 came to the spot after the accident; CW-2 is not examined; CWs-3 and 4 though specifically deposed that it was A-1, as noted above, it is in their cross examination i.e.,
a) CW-3 has admitted the suggestion that at the first time from the distance of 50 meters when he saw the accident, he could not see the rider of the bike specifically and after the accident, he and CW-4 traveled for 50 meters. 34 S.C.No:04/2018
b) CW-4 has deposed that he saw the bike rider first time from the distance around 150 to 200 meters and he has also admitted the suggestion that one could not see the rider specifically from the distance around 150 to 200 meters.
73. It is also in the cross examination of CW-4 that on the date of incident, the new year function was being conducted and it is an admitted fact that the accident took place at 1:15 a.m. which is dark time and the same is admitted by CWs-3 and 4.
74. Of course, CWs-3 and 4 have stated that there were street lights. However, in view of the admitted distance, the evidence requires corroboration, but CW-3 has admitted that at the first time, when he saw the bike at a distance of 50 meters, he could not see the rider and after the accident, they traveled the said distance and reached the spot.
75. They have also deposed that by the time they reached the spot, A-1 had already raised from the ground the injured was alone on the ground. Moreover, as observed above, there is contradiction with regard to their 35 S.C.No:04/2018 presence itself in the spot in view of the evidence of CW-1 who is the complainant and the police officer of the PSI rank.
76. Hence, the conjoint reading of the above noted entire evidence warrants the supportive and corroborative evidence to the oral evidence of CWs-3 and 4 with regard to the fact that A-1 was the rider of the bike and on his rash and negligent riding of the bike, the accident was taken place, but, there is no such corroborative and supportive evidence to the oral evidence of CWs-3 and 4 on record in that regard.
77. It is in the charge sheet that CWs-5 to 7 are the witnesses to the inquest mahazar of the dead body of the deceased Sri.Jagannatharao at Ex.P-3, amongst whom, the prosecution given up CW-6 and got examined CWs-5 and 7 respectively as PWs-3 and 4. Both of them deposed supporting the prosecution with regard to the police conducting the inquest mahazar at Ex.P-3.
78. In their cross examination, it is got admitted for the accused that they do not know about the details of the accident. For that matter, it is not the case of the 36 S.C.No:04/2018 prosecution that CWs-5 and 7 are the witnesses to the accident.
79. Moreover, in view of the defence taken by the accused noted above, there is no dispute with regard to the fact of the death of the deceased due to the injuries he has sustained in the present accident. Hence, the evidence of CWs-5 and 7 is not that much of importance. However, as noted above, they deposed supporting the prosecution in respect of the inquest mahazar at Ex.P-3.
80. It is stated in the charge sheet that CW-10 Dr.C.N.Sumangala is the then Assistant Professor, Victoria Hospital who did the post mortem examination of the deceased and she is examined as PW-10. She has also deposed supporting the prosecution with regard to the PM report at Ex.P-9 and has stated that the injuries mentioned therein could be caused in an accident.
81. In her cross examination she has denied the suggestions that any person under the influence of alcohol, if hits to any rough objects, moving vehicles or falls on hard surface, could sustain the injuries mentioned in Ex.P- 37 S.C.No:04/2018 9 and convenient to the case, as per the instructions of the police, she gave false evidence.
82. But as noted above, in the defence, the accused have not denied the fact of the death of the deceased due to the injuries he has suffered in the present accident and CW-10 has also deposed supporting the prosecution in respect of the PM report at Ex.P-9.
83. It is in the charge sheet that CW-11 Dr.Guntamma Patil is the then Assistant Director, FSL, Madiwala. She is examined as PW-6 and she has deposed that;
a) On 07.01.2015, their office received two sealed articles pertaining to Crime No.2/2015 of Kamakshi Palya Traffic Police Station through PC-10906 Sri.Manju L. The seals on the articles were found intact and were tallied with the sample seal.
b) The articles received were, blood in a sealed bottle and preservative used - Sodium Chloride in a sealed bottle.
c) The article 1 is the autopsied samples of Sri.Jaganatharao, a male, 55 years and article 2 is the 38 S.C.No:04/2018 sample of preservative vide PMR No.2/15 dated 01.01.2015.
d) The scientific officer Smt.Savitha S subjected the above articles to the chemical analysis in her super vision and came to the opinion on examination that the color tests and gas chromatographic methods have responded for the presence of ethyl alcohol in article No.1, but no other poison was detected in both the articles. The quantum of ethyl alcohol is 144.625 mg per 100 ML of blood.
e) The articles were used fully for chemical examination and she prepared the report at Ex.P-6 and she/CW-11 counter signed it.
f) In the above crime, on the same day, through the same PC, their office has also received 3 articles ie., blood samples of Sri Nishath K Rao, Male, 25 years.
g) The blood samples were subjected to the chemical analysis by the above scientific officer Smt.Savitha S to stem distillation and the distillate was collected and she opined on examination that color tests and gas chromatographic methods have responded for the presence 39 S.C.No:04/2018 of ethyl alcohol in article No.1. But no other poison was detected in both the articles. The average quantum of ethyl alcohol is 33.92 mg per 100 ML of blood.
h) The articles were used fully for chemical examination and she prepared the report at Ex.P-7 and she/CW-11 counter signed it.
84. In her cross examination, CW-11 has admitted the suggestion that there is no mention in both the reports at Ex.P-6 and 7 in respect of her physical presence at the time of chemical analysis. However, she has denied the suggestions that;
a) If she really present physically at the time of chemical examination, as she has stated in her chief evidence, it would have been mentioned in Ex.P-6 and 7. At this stage, she has voluntarily deposed that there is no such provision in the format of the reports and the same is supported by Ex.P-6 and 7.
b) She has no personal knowledge of the chemical examination of the articles alleged to be sent for examination.
40 S.C.No:04/2018
c) Though she has no personal knowledge about the reports, on instance of the police, to help them, she counter signed the report.
85. So, the plain reading of the above evidence of CW- 11 clearly say that she has deposed supporting the prosecution with regard to the reports at Ex.P-6 and 7. Even for the sake of arguments, the fact in the suggestion of the defence i.e., CW-11 has no personal knowledge about the reports is accepted, then also the said reports were issued by the competent authority, which is not disputed by the other side. Moreover, there is no cross examination with regard to authenticity of the contents of the reports at Ex.P-6 and 7.
86. As noted above, CW-4 has specifically deposed that both the riders of the bike were drunken. CW-1 has also specifically deposed that A-1 was drunken. Ex.P-4 demonstrates that the reading found in the alcohol meter is 141/100 mg. and Ex.P-7 demonstrates the average quantum of ethyl alcohol is 33.92 mg per 100 ML of blood in case of A-1 and Ex.P-6 shows it is 144.625 mg per 100 ML of blood in case of A-2. Hence, there is nothing on 41 S.C.No:04/2018 record to discard the case of the prosecution that A-1 and A-2 were drunken in particular A-1 was found drunken.
87. It is in the charge sheet that CW-12 Sri.Ramanjanappa, the Senior Motor Vehicle Inspector. He is examined as PW-12 and has deposed that;
a) He was working as MV Inspector in Jnanabharathi RTO since, November-2014 to May-2015 and on 03.01.2015, a requisition was received in their office from the Circle Inspector, Kamakshi Palya Traffic Police Station, Bengaluru for MV examination of an auto rickshaw cab bearing No.KA-02 AC-7289 and a motor cycle with Gare bearing No.KA-02 EU-1375. Accordingly, on the same day, he inspected the above vehicles in Kamakshipalya Traffic Police Station premises at 2:30 pm.
b) At the time of examination, the damages found to the auto rickshaw cab No.KA-02 AC-7289 are;
1. Wind shield glass broken.
2. Front right hand side shape pressed inwards
3. Front wheel mud guard damaged
4. Head lamp glass broken
c) The damages found to motor cycle bearing No.KA- 02 EU-1375 are;
42 S.C.No:04/2018
1. Front right side crush guard bent
2. Front right side foot rest damaged
3. Head lamp mask damaged.
d) On test of the above vehicles on road, the break systems of both the vehicles found in order.
e) He is of the opinion that, the accident is not due to any mechanical defects of both the vehicles, saying so, he issued MV report at Ex.P-12.
88. In his cross examination, he has deposed that he did not examine as to, to whom the above vehicles belonged and has denied the suggestions that he did not examine any of the above vehicles as he has stated and none of the vehicles stated above sustained any damages and he gave false evidence.
89. So, the plain reading of the evidence of CW-12, prima facie is in support of the prosecution that the accident is not due to any mechanical defect. But, with regard to the damages sustained, in view of the admitted non seizure of any parts of either of the vehicle and non production of either the vehicles and the photos of the vehicles before the Court, the evidence of CW-12 is not 43 S.C.No:04/2018 supported by the corroborative evidence which could have been secured before the Court.
90. It is in the charge sheet that CWs-13 to 17 are the police officers who did the investigation of the case on hand. CW-13 Sri.Manjunath A.N. is the the then ASI of Jnanabharathi Police Station registered the case. He is examined as PW-7 and has deposed that he was working as ASI in Jnanabharathi Traffic Police Station since, 2002 to 2016 and on 01.01.2015, at 3:25 a.m., he was in charge of SHO.
a) By that time, the then PSI Sri.C.C.Puttaramu/CW- 1 came and gave his report at Ex.P-5, on which he registered the case and prepared the FIR at Ex.P-13 and sent the same to the jurisdictional Magistrate.
91. In his cross examination, CW-13 has denied the suggestion that he registered the false case and to substantiate it, he gave false evidence. Hence, there is nothing on record to discard the evidence of CW-14 in respect of registration of the crime and the FIR at Ex.P-13.
92. It is stated in the charge sheet that CW-14 Sri.Sunil Kumar is the then PSI, Jnanabharathi Police 44 S.C.No:04/2018 Station and he is examined as PW-7 and has deposed that he was working as PSI, Jnanagabharathi Police Station from 22.12.2012 to 18.06.2016.
a) On 01.01.2015, he received the case file by the then ASI Sri Manjunath AN/CW-13 and perused the record as well as found that the investigation till then in order and on the ground of jurisdiction, he had handed over the case file to the then Police Inspector, Kamakshipalya Traffic Police Station, Bengaluru/CW-16 along with his covering letter at Ex.P-8.
93. In his cross examination, CW-14 has denied the suggestion that no complaint was received from the relatives of the deceased Jagannatharao.
94. But, it is evident on record and it is the case of the prosecution itself that the complaint is filed by CW-1 who is the then PSI of the complainant police station. However, with regard to transfer of the case from Jnanabharathi Police Station to the complainant police station, there is nothing to discard the oral evidence of CW-
14. 45 S.C.No:04/2018
95. It is stated in the charge sheet that CW-15 Sri.H.Chandrashekhar is the then ASI of Kamakshipalaya Traffic Police Station who did the partial investigation of the case on hand. He is examined as PW-9 and has deposed that;
a) He was working as ASI at Kamakshipalya Traffic Police Station, since 2012 to 2015 and on 05.01.2015, since, CW-16 was to attend the special duty, he gave a memo to him to conduct the further investigation in this case.
b) On the same day, A-1 Nishanth K Rao appeared before him. Accordingly, he conducted the arrest procedures and thereafter, produced him before the jurisdictional Magistrate under remand warrant and thereafter, handed over the case file to CW-16 on the next day and he has identified A-1.
96. In his cross examination, CW-15 has denied the suggestions that he called A-1 for enquiry and to help the LRs of the deceased, he produced A-1 before the jurisdictional Magistrate, even A-1 is not connected to this case. However, there is nothing on record to disbelieve the 46 S.C.No:04/2018 evidence of CW-15 with regard to the arrest procedures and production of A-1 before the jurisdicitonal Magistrate.
97. It is in the charge sheet that CW-16 Sri.Niranjan Kumar is the then PI of Kamakshipalya Traffic Police Station who did the further investigation and filed the charge sheet. He is examined as PW-8 and has deposed that;
a) He was working as PI in Kamakshi Palya Traffic Police Station since September-2013 to May-2015 and on 01.01.2015, he received the case file from the then PSI Janabharathi Police Station by name Sri Sunil Kumar/CW- 14 on the point of jurisdiction for further investigation and verified the case file and found the investigation was in order till then.
b) On the same day, he visited Mortuary, Victoria Hospital, conducted the inquest mahazar of the dead body of Sri.Jaganatharao in the presence of Sri.Venkoba Rao, Sri.Umesh Rao and Sri.Jaganatha Rao i.e., CWs-5 to 7 respectively in between 11:45 am to 2:15 pm as per the inquest mahazar at Ex.P-3 and by then he also recorded the statement of Smt.Geetha Bai/CW-8. As noted above, 47 S.C.No:04/2018 CWs-5 and 7 deposed supporting the prosecution in that regard and Ex.P-3 is also not disputed by the accused.
c) Thereafter, he forwarded the dead body for PM examination and on the same day, he received the PM examination report at Ex.P-9 from Dr.C.N.Sumangala/CW-
10. As noted above, CW-10 has deposed supporting the prosecution in respect of Ex.P-9 and the other side has not disputed the death of the deceased due to the injuries he had sustained in the present accident.
d) On the same day, thereafter, he visited the spot, inspected it and conducted the mahazar at Ex.P-1 in the presence of Sri.Ravi and Sri.Venkatesha i.e., CWs-2 and 3 respectively in between 4:15 pm to 5:15 pm. and by that time, he prepared the rough sketch of the spot at Ex.P-2 and thereafter, he had recorded the statement of CWs-2 to
4. As noted above, CW-2 has supported the prosecution in respect of drawing the spot mahazar at Ex.P-2, of course he has deposed that CW-1 has conducted the mahazar, but under the facts and circumstances of the case that contradiction is not of that much importance. 48 S.C.No:04/2018
e) On 03.01.2015, he requested RTO, Janabharathi for inspection of the motor cycle KA-02 EU-1375 and on 05.01.2015, he issued a notice at Ex.P-10 to the RC owner of the vehicle by name Sri.Krishnoji Rao/A-2 under Section 133 of IMV Act and on the same day, A-2 gave the reply at Ex.P-11. At this stage itself, let this Court to note that the contents of Ex.P-10 and 11 are in support of the above oral evidence of CW-16.
f) Since, on that day, he was deputed for special duty, he issued memo to CW-15 to conduct the further investigation.
g) On 06.01.2015, he came back and received the case file from CW-15 for further investigation. In the meanwhile, CW-15 arrested, completed the arrest procedure and produced A-1 before the jurisdictional Magistrate. As noted above, CW-15 deposed supporting this oral evidence of CW-16.
h) On the same day, he forwarded the blood sample of A-1 from Panacea hospital along with the report of the concerned medical officer addressed to FSL, Madiwala, 49 S.C.No:04/2018 Bengaluru to ascertain whether A-1 was under the influence of alcohol at the time of incident.
i) On 07.01.2015, he received MV report at Ex.P-12 from the office of RTO Janabharathi and on 12.02.2015, he received the chemical examination reports at Ex.P-6 and 7 from the FSL, Madiwala, wherein it was reported that A-1 was under the influence of alcohol at the time of incident. As noted above, CWs-12 and 11 respectively deposed supporting the above oral evidence of CW-16 and the documents at Ex.P-12, 6 and 7 are also in support of CW-16 in that regard.
j) By then since, the investigation was completed and there were prima-facie materials against A-1 and A-2 for the offence alleged, he prepared the charge sheet and submitted and in the course of investigation, he saw the photograph of A-1 and identified both A-1 and A-2 before the Court.
98. In his cross examination, CW-16 has admitted the suggestions that;
50 S.C.No:04/2018
a) CW-4 did not lodge any complaint against A-1 alleging that he was the rider of the two wheeler at the time of alleged accident.
b) On the complaint of CW-1 that A-1 was the rider of the two wheeler at the time of alleged accident, he conducted the investigation.
c) Apart from CW-1, no other independent witnesses stated that A-1 was the rider of the two wheeler at the time of alleged incident.
d) As per the complaint averments, CW-1 was not in the spot when the alleged accident took place.
e) The road at accident spot was a busy road. At this stage, he has voluntarily deposed that the incident took place at 1:15 a.m. and thus, there would be no traffic.
f) The incident took place in the night of 31 st of December, but he has denied that because of that, there was heavy vehicular moment on the road at the alleged accident spot.
99. It is also in the cross examination of CW-16 that;
a) He visited the spot on the night when the accident took place and also on the next date.
51 S.C.No:04/2018
b) He mentioned about the existence of street lights in his rough spot sketch at Ex.P-2.
c) There is mention of availability of street light in the mahazar at Ex.P-1.
d) He recorded the statement of CW-4/Karthik on 01.01.2015.
100. CW-16 has denied the suggestion that on the date of alleged accident, it was the deceased who was the rider and A-1 was the pillion rider and has also stated that he enquired the wife and children of the deceased about his driving license, who told that the deceased unknown of driving and had no DL, but has not mentioned the same in his investigation report.
101. CW-16 has denied the suggestions that;
a) Though he was well known that the deceased was the rider of the two wheeler at the time of accident, to help his LRs to get the compensation, he implicated A-1 as the rider and filed the charge sheet.
b) He did not visit the spot and prepared the mahazar and sketch in the office on the information furnished by his subordinate staffs.
52 S.C.No:04/2018
c) He did not record the statements of CWs-2 to 4.
102. He has admitted the suggestions that he sent the blood samples of the deceased as well to the FSL examination and in the report, it is stated that the deceased Sri.Jaganatharao also consumed the alcohol.
103. CW-16 has denied the suggestions that A-2 had handed over the motor cycle to the deceased who had driving license and he has filed false charge sheet and to substantiate the same, he gave false evidence.
104. So, from the above evidence, though the prosecution is successful in establishing that A-1 found drunken exceeding the prescribed limit, in view of the contradictions observed above in the oral evidence of CWs- 1, 3 and 4 and no corroborative and supportive evidence to the oral evidence of CWs-3 and 4 in respect of the fact that A-1 was the rider of the bike and his rash and negligent riding resulted in the accident, the prosecution has failed to establish these points. Hence, they are answered in negative.
105. POINT No.4:- it is the allegation of the prosecution that A-1 had no valid driving licence to drive 53 S.C.No:04/2018 the bike in question and rode the same on the public way, thereby contravened Section 3(1) of the IMV Act punishable under Section 181 of the said Act.
106. Before proceeding further with, let this Court first to have a look at the above provisions which are extracted here below;
"3. Necessity for driving licence.- (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle; and no person shall so drive a transport vehicle other than a motor cab or motor vehicle hired for his own use or rented under any scheme made under sub-section (2) of Section 75 unless his driving licence specifically entitles him to do so.
(2) The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government.
181. Driving vehicles in contravention of Section 3 or Section 4.- Whoever drives a motor vehicle in contravention of Section 3 or Section 4 shall be punishable with imprisonment for a term which may extend to three months or with fine of five thousand rupees, or with both". 54 S.C.No:04/2018
107. In the present case on hand, as noted above, the prosecution has failed to establish the fact that A-1 was the rider of the bike at the time of accident. Thus, there is no question of examining A-1 having driving licence or not to ride the bike in question on the public way.
108. Hence, in view of the prosecution failing to establish that A-1 was the rider of the bike at the time of accident, it has also failed to establish that A-1 rode the bike without having valid driving licence. Therefore, this point is also answered in negative.
109. POINTS Nos.5 AND 6:- It is the case of the prosecution that A-2 being the owner of the bike in question having no due insurance policy/coverage to the said bike had permitted A-1 who had no valid licence to ply/ride the said bike over the public way and thereby contravened Sections 146 and 5 respectively of the IMV Act punishable under Sections 186 and 180 respectively thereof.
110. So before moving further, let this Court to have a look at the above provisions which read; 55 S.C.No:04/2018
5. Responsibility of owners of motor vehicles for contravention of Sections 3 and 4.- No owner or person in-charge of a motor vehicle shall cause or permit any person who does not satisfy the provisions of Section 3 or Section 4 to drive the vehicle.
180. Allowing unauthorized persons to drive vehicles.- Whoever, being the owner or person in-charge of a motor vehicle, causes or permits any other person who does not satisfy the provisions of Section 3 or Section 4 to drive the vehicle shall be punishable with imprisonment for a term which may extend to three moths, or with fine or five thousand rupees, or with both.
146. Necessity for insurance against third party risks.- (1) No person shall use, except as a passenger, or cause or allow any other persons to use, a motor vehicle in a public place, unless there is in force, in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of this Chapter:
Provided that in the case of a vehicle carrying, or meant to carry dangerous or hazardous goods, there shall also be a policy of insurance under the Public Liability Insurance Act, 1991.56 S.C.No:04/2018
Explanation.- For the purposes of this sub-section, a person driving a motor vehicle merely as a paid employee, while there is in relation to the use of the vehicle no such policy in force as is required by this sub- section, shall not be deemed to act in contravention of the sub-section unless he knows or has reason to believe that there is no such policy in force.
(2) The provisions of sub-section (1) shall not apply to any vehicle owned by the Central Government or a State Government and used for purposes not connected with any commercial enterprise.
(3) The appropriate Government may, by order, exempt from the operation of sub-section (1), any vehicle owned by any of the following authorities, namely:-
(a) the Central Government or a State Government, if the vehicle is used for purposes connected with any commercial enterprises;
(b) any local authority;
(c) any State Transport Undertaking:
Provided that no such order shall be made in relation to any such authority unless a fund has been established and is maintained by that authority in such manner as may be 57 S.C.No:04/2018 prescribed by appropriate Government.
Explanation.- For the purposes of this sub-section, "appropriate Government" means the Central Government or a State Government, as the case may be, and.-
(i) in relation to any corporation or company owned by the Central Government or any State Government, means the Central Government or that State Government;
(ii) in relation to any corporation or company owned by the Central Government and one or more State Government, means the Central Government;
(iii) in relation to any other State Transport Undertaking or any local authority, means that Government which has control over that undertaking or authority.
196, Driving uninsured vehicle.- Whoever drives a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of Section 146 shall be punishable for the first offence with imprisonment which may extend to three months or with fine of two thousand rupees, or with both and for a subsequent offence shall be punishable with imprisonment for a term which may extend to three months, or with fine of four thousand rupees, or with both.
58 S.C.No:04/2018
111. In the case on hand, as noted above, it is the allegation of the prosecution that A-2 being the owner handed over the uninsured vehicle to A-1 who had no valid driving licence to ride the bike in question.
112. As observed above, the only defence raised by the accused is that it was the deceased who was the rider of the bike. In the cross examination of CW-16, it is suggested that A-2 handed over the bike to the deceased who had valid driving licence. Of course, CW-16 denied the said suggestion, but the suggestion indicates that there is no dispute with regard to the fact that A-2 is the owner of the bike and this fact is also supported by the reply of A-2 at Ex.P-11 to the notice under Section 133 of IMV Act at Ex.P-10.
113. CW-16 has deposed that he enquired with the wife and children of the deceased about his driving licence, who told that the deceased unknown of driving and had no DL, but has not mentioned the same in his investigation report. Of course, in that regard, there is nothing in the 59 S.C.No:04/2018 statement of the wife of the deceased i.e., CW-8 Smt.Geethabai in the inquest mahazar at Ex.P-3.
114. However, as noted above, it is the case of the prosecution that A-1 was rider of the bike. Hence, non collection of materials with regard to the driving licence of the deceased is not fatal to the case of the prosecution. Since it is the defence raised on behalf of A-2 that he had handed over the bike to the deceased who had driving licence, the burden shifts on him to establish the said fact. But, A-2 did not let in any evidence in that regard.
115. Of course, it is the case of the prosecution that A-2 being the owner of the bike, handed over it to A-1 who had no valid driving licence. But, as observed above, it has failed to establish the same. It is the defence of the accused that A-2 handed over the bike to the deceased who had valid driving licence. But, they have failed to establish that the deceased had valid driving licence.
116. However, it is an admitted fact that A-2 is the owner of the bike and there is no dispute with regard to the fact that the said bike is involved in the present case on hand.
60 S.C.No:04/2018
117. Hence, it is clear that whoever may be the rider of the bike at the time of accident i.e., either A-1 or the deceased, in view of the fact that there is no evidence on record to establish that either of them had valid driving licence, it can be safely concluded that A-2 being the owner of the bike had handed it over to the person who had no valid driving licence and thereby contravened Section 5 of the IMV Act punishable under Section 180 thereof.
118. So far the allegation that the bike was not duly insured, the prosecution has let in the oral evidence of CW- 16 and the documents at Ex.P-10 and 11 in particular Ex.P-11, the reply given by A-2 and there is no cross examination either in respect of the oral evidence of CW-16 or the documents at Ex.P-10 and 11 in particular Ex.P-11. Hence, the prosecution is successful in establishing this allegation. Therefore, these points are answered in affirmative.
119. POINT No.7:- In view of the finding to points Nos.1 to 4 in negative; points Nos.5 and 6 in affirmative, this Court proceeds to pass the following order. 61 S.C.No:04/2018
ORDER Acting under Section 235(1) of Cr.P.C., A-1 is hereby acquitted for the offences punishable under Sections 279 and 304 of IPC and Sections 185 and 3 read with Section 181 of IMV Act.
Acting under Section 235(2) of Cr.P.C., A-2 is hereby found guilty for the offences under Section 5 read with Section 180 and Section 146 read with Section 196 of IMV Act and convicted by imposing fine of Rs.5,000/- and Rs.2,000/- respectively.
In default of which, A-2 is ordered to undergo simple imprisonment for a period of 25 days and 10 days respectively. The default class shall run currently. A-2 is entitled for set off of the default class equivalent to the period if any he was in the judicial custody in this case/crime.
The bail bonds and the surety bonds executed by and on behalf of A-1 and A-2 shall be canceled after lapse of appeal period.
Office is directed to furnish a copy of this judgment to A-2 free of costs.
(Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 7th day of August, 2021).
(K. KATHYAYANI), LXVI Addl.CC & SJ, Bengaluru.
-:ANNEXURE:-
62 S.C.No:04/2018
LIST OF WITNESSES EXAMINED FOR THE PROSECUTION:-
PW.1 Venkatesh
PW.2 Karthik
PW.3 Venkoba Rao
PW.4 Jagannath Rao
PW.5 Puttaramu
PW.6 Gundamma Patil
PW.7 Sunilkumar
PW.8 Niranjankumar
PW.9 Chandrashekar
PW.10 Dr.Sumangala
PW.11 Manjunath
PW.12 Ramanjanappa
LIST OF WITNESS EXAMINED FOR DEFENCE :-
- None -
LIST OF DOCUMENTS EXHIBITED FOR THE PROSECUTION:-
Ex.P-1 Spot Mahazar
Ex.P-1(a) Signature of PW-1
Ex.P-1(b) Signature of PW-8
Ex.P-1(c) Signature of Ravi
Ex.P-2 Spot sketch
Ex.P-2(a) Signature PW-8
Ex.P-3 Inquest Mahazar
Ex.P-3(a) Signature of PW-3
Ex.P-3(b) Signature of PW-4
Ex.P-3(c) Signature PW-8
Ex.P-4 Alcohol Meter Reading
Ex.P-5 Complaint
Ex.P-5(a) Signature of PW-5
Ex.P-5(b) Signature of PW-11
Ex.P-6&7 FSL Reports
Ex.P-6(a)&7(a) Signatures of PW-6 63 S.C.No:04/2018 Ex.P.-6(b)&7(b) Signatures of PW-8 Ex.P-8 Covering Letter of PW-7 Ex.P-8(a) Signature of PW-7 Ex.P-9 PM report Ex.P-9(a) Signature of PW-8 Ex.P-9(b) Signature of PW-10 Ex.P-10 Notice under Section 133 of IMV Act Ex.P-10(a) Signatures of PW-8 Ex.P-10(b) Signature of A-2 Ex.P-11 Reply to Notice to Ex.P-10 Ex.P-11(a) Signature of PW-8 Ex.P-11(b) Signature of A-2 Ex.P-12 IMV report Ex.P-12(a) Signature of PW-8 Ex.P-12(b) Signature of PW-12 Ex.P-13 FIR Ex.P-13(a) Signature of PW-11 LIST OF DOCUMENTS EXHIBITED FOR DEFENCE:-
- Nil -
LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
- Nil -
LIST OF MATERIAL OBJECTS MARKED FOR DEFENCE:
- Nil -
(K. KATHYAYANI), LXVI Addl.CC & SJ, Bengaluru.64 S.C.No:04/2018
The Judgment is pronounced in the open Court (vide separate Order).
ORDER Acting under Section 235(1) of Cr.P.C., A-1 is hereby acquitted for the offences punishable under Sections 279 and 304 of IPC and Sections 185 and 3 read with Section 181 of IMV Act.
Acting under Section 235(2) of Cr.P.C., A-2 is hereby found guilty for the offences under Section 5 read with Section 180 and Section 146 read with Section 196 of IMV Act and convicted by imposing fine of Rs.5,000/- and Rs.2,000/- respectively.
In default of which, A-2 is ordered to undergo simple imprisonment for a period of 25 days and 10 days respectively. The default class shall run currently. A-2 is entitled for set off of the default class equivalent to the period if any he was in the judicial custody in this case/crime.
The bail bonds and the surety bonds executed by and on behalf of A-1 and A-2 shall be canceled after lapse of appeal period.
Office is directed to furnish a copy of this judgment to A-2 free of costs.
LXVI Addl.CC & SJ, Bengaluru 65 S.C.No:04/2018