Bangalore District Court
State By Madiwala Traffic Police ... vs M.S.Yogesh S/O Somappa on 4 September, 2015
IN THE COURT OF METROPOLITAN MAGISTRATE TRAFFIC
COURT - VI, BENGALURU CITY.
C.C. No.924/2013
Dated: This the 4th day of September, 2015
Present: Smt.Lavanya H.N., B.Sc.,LL.B.,
P.O. of MMTC-VI, Bengaluru.
Complainant : State by Madiwala Traffic Police Station
V/s
Accused : M.S.Yogesh S/o Somappa,
Aged about 37 years,
Driver No.4528, KSRTC 3rd Depot,
Bengaluru.
C/o Muniswamappa Building,
Door No.5, Back to Govt. School,
Hunsemaranahalli, Yelahanka.
Native Place : Muthege Village,
Mokali Post, Arkalgud Taluk,
Hassan District.
JUDGMENT
Police Inspector of Madiwala Traffic Police Station filed charge sheet alleging that, the accused has committed offences punishable U/s 279, 337 and 304 (A) of IPC and Sec.134 (A & B) r/w Sec.187 of IMV Act.
2. The facts of prosecution case in brief are as under:
On 27.01.2013 at about 12.00 noon within the jurisdiction of Madiwala Traffic Police Station, the accused 2 CC.No.924/2013 being the driver of KSRTC Bus No.KA-01-F-9313 drove it on Hosur Road from Madiwala towards Bangalore Dairy Circle, in a rash and negligent manner so as to endanger human life, Opp: St.Antony Church, dashed to the motor cycle bearing No.KA-01-EB-9782, which was proceeding ahead of the bus as a result of which the pillion rider Sri.Punith Jain, aged about 23 years, fell down on the right side of the road and rider, Sri.Sumithkumar Jain fell down on left side of the road and then rear wheel of the bus ran over Sri.Punith Jain who succumbed to injuries at spot itself and in the said impact rider of the motorcycle sustained simple injuries. It is further case of the prosecution that after the accident the accused did not provide medical aid to the injured and did not inform about the accident to the nearest police station. Thereby, the accused has committed the offences as stated supra.
3. After Completion of Investigation, I.O. has filed charge sheet against the accused. Thereafter cognizance was taken of the offences punishable U/s 279 and 304 (A) of IPC and Sections 134 (A & B) r/w 187 of IMV Act and process has been issued to the accused. Accused appeared through counsel in pursuance of process and got enlarged on bail.
3 CC.No.924/20134. Charge Sheet copies have been furnished to the accused in compliance of Section 207 of Cr.P.C.
5. Substance of accusation has been read over and explained to the accused, who pleaded not guilty and claimed to be tried. Hence, the case is posted for Prosecution evidence.
6. In order to establish its case Prosecution has examined nine witnesses as PW.1 to 9 and got marked documents at Ex.P.1 to 14 and closed its side.
7. All the incriminating evidence appearing against the accused in the prosecution evidence has been read over and explained to the accused and accordingly statement U/s 313 of Cr.P.C. is recorded. The accused has denied the same but he did not choose to lead defense evidence.
8. I have heard the arguments and perused the materials available on record. The following points that would arise for consideration:
1. Whether prosecution proves beyond all reasonable doubts that on 27.01.2013 at about 12.00 noon within the jurisdiction of Madiwala Traffic Police Station, the accused being the driver of KSRTC Bus No.KA-01-F-9313 drove it on Hosur Road from Madiwala towards Bangalore Dairy Circle, in a rash and negligent manner so 4 CC.No.924/2013 as to endanger human life, Opp: St.Antony Church, dashed to the motor cycle bearing No.KA-01-EB-9782, which was proceeding ahead of the bus as a result of which the pillion rider Sri.Punith Jain, aged about 23 years, fell down on the right side of the road and rider, Sri.Sumithkumar Jain fell down on left side of the road and thereby, the accused has committed the offence punishable U/s 279 of Indian Penal Code ?
2. Whether the prosecution proves beyond all reasonable doubts that as a result of above said accident, the rider Sri.Sumithkumar Jain sustained simple injuries and thereby the accused has committed the offence punishable U/s 337 of Indian Penal Code ?
3. Whether the prosecution proves beyond all reasonable doubts that as a result of above said accident, the pillion rider Sri.Punith Jain succumbed to injuries is not amounting to culpable homicide and thereby the accused has committed the offence punishable U/s 304 (A) of Indian Penal Code ?
4. Whether the prosecution proves beyond all reasonable doubts that after the accident the accused did not provide medical aid to the injured and he did not inform about the accident to the nearest police station and thereby the accused has committed the offences punishable U/s 134 (A & B) r/w 187 of IMV Act ?
5. What order?
9. The findings to the above points are as under:
Point No.1 to 4 : In the Negative;
Point No.5 : As per final order for the
following:
REASONS
5 CC.No.924/2013
POINT Nos.1 to 3:
10. Since these points are interlinked with one and another, they are taken up together for common discussion to avoid repetition of facts, as here under.
In this case the prosecution has examined nine witnesses as PW-1 to 9. PW-2 is Complainant. PW-1 is injured as well as rider of the motor cycle which subjected to accident. PW-3 and 4 are Eye-witnesses. PW-5 is in- charge of the offending BMTC Bus. PW-7 is conductor of the KSRTC bus. PW-8 is Spot-mahazar witness. PW-6 and 9 are Investigation Officers.
11. PW-2 who is Complainant has deposed that on 27.01.2013 at about 12.00 noon he received message from his brother Sumith Jain i.e., PW-1 that PW-1 and his brother Punith Jain met with an accident near St.Anthony Church. Immediately, he and his mother rushed to the spot. At that time the dead body of his brother was shifting to Ambulance and in the said ambulance his brother Sumith Jain also present. He made an enquiry with the people who present there as PW-1 was nervous and then it was informed that the bus No.9873 has caused the accident. He further came to know that the said bus touched the bike which was driven by PW-1 as a result of which the PW-1 fell down on left side and his another brother fell down on right side of the road and then the 6 CC.No.924/2013 wheel of the bus ran over Punith Jain. When he asked PW-1 about bus number he said yes as he scared. As such, he has lodged complaint against bus No.9873 as per Ex.P-1. He has further deposed that on the same day at about 6.00 p.m. he went to accident spot wherein he made an enquiry and then he came to know that the KSRTC bus No.KA-01-F- 9313 caused the accident. Thereafter, he has given further complaint as per Ex.P-2.
12. PW-1 has deposed that on 27.01.2013 at about 11.00 a.m. when he was riding his motor cycle along with his brother from Silk board towards Kormangala near St.Anthony church all of a sudden KSRTC bus No.KA-01-F- 9313 came from his right side from his behind and dashed to his bike's handle as a result of which he lost control and then he fell down on left side of the road and his brother fell down on right side of the road and then wheel of the bus ran over him. In the said impact his brother died at spot. The bus which caused the accident went away without stopping it. He has further deposed that in the said impact he sustained simple injuries. After the accident he became unconscious for two minutes. He has further deposed that he did not see the driver of the bus but, he saw the accused in police station. He has further deposed that as the said bus came in his behind, he did not see how it was driven.
7 CC.No.924/201313. PW-1 has been subjected to cross-examination by the learned APP. During cross-examination he has admitted to the suggestion put to him that he has stated before the Police that the driver of the bus came in negligent manner and caused the accident. He has further admitted to the suggestion put to him that on 12.02.2013 he has been called to police station and on that day he has identified the accused and in this regard he has given statement before the Police. Further, witness has deposed that he has given further statement after 15 days of the accident but, he did not remember the date.
14. PW-3 stated to be Eye-witness to the incident has deposed that on 27.01.2013 at 12.00 noon when he was standing in front of St.Antony Church signal bus No.KA-01- F-9313 came from Madiwala towards Majestic in speed and touched to the handle of the bike which was at left side of the bus as a result of which the rider of the motor cycle fell down on its right side and the pillion rider fell down on the left side and then the wheel of the bus ran over on rider of the motor cycle. In the said impact the rider of the motor cycle died at spot. Pillion rider of the motorcycle sustained simple injuries. He has further deposed that on the date of accident he had gone to his village as such he has given statement before the Police on 05.02.2013. Thereafter, he has identified the accused in the Police Station.
8 CC.No.924/201315. PW-3 has been subjected to cross-examination by the learned APP. During cross-examination by the learned APP he has admitted to the suggestion put to him that he has stated before the police that the aforesaid bus came in high speed and negligent manner and dashed against handle of the bike as a result of which the accident took place. He has further admitted to the suggestion put to him that in the said accident the rider of the bike fell down on left side of the road and the pillion rider fell down on its right side and then the wheel of the bus ran over pillion rider.
16. PW-4 who is Eye-witness to the incident has deposed that on 27.01.2013 at about 11.30 a.m. to 12.00 noon near St.Antony Church signal when he was waiting for his cousin, the accused being the driver of Rajahamsa Bus bearing its No.KA-01-F-931 came in speed and dashed against right handle of the bike which was proceeding ahead of the bus as a result of which the rider of the bike lost his control and he fell down on the left side of the road and pillion rider of the bike fell down on right side of the road and then the wheel of the bus ran over pillion rider. In the said incident pillion rider died at spot and rider of the motor cycle sustained simple injuries. The driver of the bus went away along with bus without stopping it. During his cross-examination by the learned APP he has admitted to 9 CC.No.924/2013 the suggestion put to him that the bus number which caused the accident is KA-01-F-9313.
17. PW-7 who is the conductor of the offending KSRTC bus has deposed that he is working as a conductor in KSRTC bus No.KA-01-F-9313 in which the accused is driver. On 27.01.2013 the accused was driving the said bus. On that day no accident took place from their bus. He has further deposed that on 12.02.2013 he and accused had gone to the police station as directed by the manager of the Depo. He has further stated that he has not given statement before the Police that he saw the accident.
18. PW-7 has not supported the case of the prosecution. As such he has been treated as hostile witness at the request of learned APP. Though he has been subjected to cross-examination by the learned APP, nothing has been elicited from his mouth which supports the case of the prosecution.
19. PW-8 who is Spot-mahazar witness has deposed that on 28.01.2013 at about 11.30 a.m. near St.John Church with the history of the accident police have conducted Spot-Inspection in his presence and drawn Spot- Mahazar as per Ex.P-11.
10 CC.No.924/201320. PW-5 who is in-charge of the offending bus has deposed that on 12.02.2013 he has been called to Madiwala Traffic Police Station with regard to accident took place on 27.01.2013 in between the KSRTC bus No.KA-01-F-9313 and motor cycle wherein he was asked to give details of aforesaid bus and who was driving the said bus on 27.01.2013 for which he has given reply at Ex.P.10 stating that the accused was driving the offending bus on 27.01.2013.
21. PW-6 and 9 are Investigation Officers have deposed with regard t investigation.
22. PW-1 to 9 have been subjected to cross- examination by the defense wherein denied the entire case of the prosecution. It is specific defense of the accused that no accident took place from the aforesaid offending bus on the date and time of the alleged accident. The police have lodged false case against the accused though he has not caused the accident in question.
23. In this case Inquest, P.M.Report and IMV Report have not been denied by the defense. It is not in dispute that deceased Punith Jain died in Road Traffic Accident. It is also not in dispute that the accident took place on public road. It is not the defense of the accused that this accident 11 CC.No.924/2013 is due to mechanical defects of the vehicles involved in the accident. Apart from that on going through the IMV Report at Ex.P.5 and 6 it could be seen that IMV Inspector who inspected the offending bus and motorcycle which subjected to accident has expressed his opinion stating that this accident is not due to mechanical defects of the vehicles involved in the accident. Therefore, it can safely be held that this accident is not due to mechanical defects of the vehicles involved in the accident.
24. PW-7 who is conductor of the offending and PW-5 who is in-charge of offending bus have deposed that on the date of alleged accident the accused was driving the offending bus. Evidence of PW-7 has not been denied by the accused. Hence, it can safely be held that on the date of alleged accident the accused was driving the offending bus. Now the questions remain before the court are whether the accused has caused this accident or not and whether this accident is due to rash and negligent driving of the accused or not.
25. According to the case of the prosecution the PW-1 is the rider of the motorcycle which subjected to accident. PW-1 in his examination-in-chief has deposed that he did not see how the bus was driven. PW-2 who is complainant is none other than brother of PW-1 and deceased Punith 12 CC.No.924/2013 Jain. PW-1 has deposed that he immediately rushed to the spot after receiving message of accident from PW-1 wherein the public informed the bus number and the same has been shown to his brother, PW-1 he said yes as he is in shock. As such he has lodged complaint stating that the bus No.9873 has caused the accident. Further he has deposed that on the day of accident at about 6.00 pm he had gone to accident spot wherein he got the offending bus number which caused the accident and thereafter, he has given further complaint by correcting the bus number which caused the accident as per Ex.P.2. If really PW-2 has collected the offending bus number on the date of alleged accident itself then he could have rectified the mistake of stating wrong number of the bus forth with on the same day of accident. But, Ex.P.2 has been given on 04.02.2013 which is 8 days after the accident. From this itself creates doubt about the prosecution case that the same has been created after thought. According to PW-2 himself he came to know about the correct bus on the day of accident at about 6.00 pm. But, further complaint has been given on 04.02.2013. The delay of filing further complaint has not been explained by the PW-2. Further, if really PW-1 knew the bus number from which accident took place then there is no hurdle for him to give correct bus number to PW-2 on the date of accident. Further, PW-2 has deposed that he came to know the bus number from public at accident spot.
13 CC.No.924/2013From the evidence of PW-2 it is clear that PW-1 also does not know the bus which caused the accident.
26. PW-3 and 4 who are stated to be eye witnesses to the incident have deposed that at the time of the accident they were standing near accident spot and they witnessed the accident. On going through the entire evidence of PW-3 and 4 it could be seen that both have deposed that they had gone to the police station on 05.02.2013 voluntarily and on that day they have given statement before the police with regard to accident. PW-3 further deposed that as he went to his village, he did not inform about the accident to the police on the same day. After returning from village he himself went to police station to enquire about the accident and then he has given statement before the police. PW-4 has deposed that as police came to accident spot on the date of accident itself he has not given statement to the police on the same day but he has given statement to the police on 05.02.2013 and on that he had gone to the police station voluntarily.
27. The statements of the witnesses have been recorded when the PW-2 has given further complaint at Ex.P.2 but not prior to that. Further, recording statements of PW-3 and 4 on 05.02.2013 itself creates doubt the case of the prosecution. If really PW-3 and 4 were present at 14 CC.No.924/2013 accident spot, on that day itself they could have given statement to the police on the same day instead of giving statement on 05.02.2013 i.e., after giving further complaint by PW-2. PW-3 and 4 have deposed that they themselves had gone to the police station 05.02.2013 to enquire about the accident and then they have given statement to the police. If really they have so much interest about the incident they could have given statement to the police on the same day or other wise next day. But, in this case they have not done so. Therefore, it creates doubt about case of the prosecution.
28. Apart from that neither PW-3 nor PW-4 has lodged the complaint with regard to accident though according them witnessed the accident. If really, they saw the accident in question they could have been lodged the complaint on the same day itself or they could have given statement before the police on the same day itself. From these parts of evidence of PW-3 and 4 it creates doubt about their presence at accident spot at relevant point of time.
29. In criminal justice system the court has to trust upon oral evidence of eye witnesses who are material witnesses to the case if prosecution establishes that the presence of eye witnesses at spot at the relevant point of incident is probable and they are credit worthy witnesses 15 CC.No.924/2013 and they do not have any enmity against the accused in the crime. In the case on hand the prosecution has failed to establish first and fore most point that the presence of PW-3 and 4 who are cited as eye witnesses is probable at accident spot at relevant point of time of accident. Under these circumstances, the evidence of PW-3 and 4 can not be believed. As has already been noticed PW-1 does not know the bus number which caused the accident. Therefore, his evidence also would not help to the prosecution to prove the case against the accused.
30. For the aforesaid reasons, it is held that the prosecution has failed to prove its case that the accused has caused the accident and this accident is due to rash and negligent driving of the accused. Hence, Point No.1 and 2 are answered in the Negative.
POINT No.4:
31. It is the case of the prosecution that after the accident the accused did not provide medical aid to the injured and he did not inform about the accident to the nearest police station. Hence, he has committed the offences punishable under sections 134(A&B) r/w187 of IMV Act.16 CC.No.924/2013
32. While answering point No.1 and 2 this court has come to the view that the prosecution has failed to prove that the accused has caused the accident. Therefore, the accident is entitled to acquittal for the offences punishable under section 134(A&B) of IMV Act. Hence, Point No.3 is answered in the Negative.
POINT No.5:
33. In view of findings on point No.1 to 3, this Court proceeds to pass the following:
ORDER Acting U/s 255 (1) of Criminal Procedure Code, 1973, accused is acquitted for the offences punishable U/s 279, 337 and 304(A) of IPC and Sec.134 (A & B) r/w Sec.187 of IMV Act.
Bail bond and surety bond stands cancelled. (Dictated to the Stenographer, transcript computerized by him, revised, corrected and then pronounced by me in the open Court on this the 4th day of September, 2015) (Smt.Lavanya H.N.) P.O. OF MMTC-VI, BENGALURU.
ANNEXURE 17 CC.No.924/2013 Witnesses examined for the prosecution :
PW-1 : Sumith Jain, PW-2 : Amith Kumar Jain, PW-3 : Kantharaju, PW-4 : Gopal Krishna, PW-5 : N.Anjinappa, PW-6 : E.C.Matt, PW-7 : Yogesh Dadapurada, PW-8 : Praveen Kumar, PW-9 : K.C.Lakshminarayan.
Documents Exhibited for the prosecution:
Ex.P1 : Complaint, Ex.P2 : Further Complaint, Ex.P3 : Inquest, Ex.P4 : P.M.Report, Ex.P5 & 6 : I.M.V.Reports, Ex.P7 : Wound Certificate, Ex.P8 : Seizure mahazar, Ex.P9 : Notice u/s 133 of IMV Act, Ex.P10 : Reply to Ex.P.9, Ex.P11 : Spot-mahazar, Ex.P12 : Witness statement, Ex.P13 : F.I.R., Ex.P14 : Rough sketch. Witness examined for the defense : Nil. Documents exhibited for the defense : Nil.
Material object got marked in this case : Nil.
P.O of MMTC-VI, Bengaluru City.