Bangalore District Court
State By Wilson Garden vs ) Sri Ashvaq Aahammed on 13 April, 2023
IN THE COURT OF THE METROPOLITAN MAGISTRATE
TRAFFIC COURT - IV, BANGALORE
PRESENT: SRI GAGAN M.R. B.A.L LLB
Metropolitan Magistrate
Traffic Court - IV, BANGALORE
DATED : THIS THE 13th DAY OF APRIL 2023
C.C. No.907/2019
COMPLAINANT: State by Wilson Garden
Traffic Police Station, Bangalore
(Represented by: APP)
VS.
ACCUSED: 1) Sri Ashvaq Aahammed,
S/o. Sayyad Sardar,
Age: 30 years,
R/at No.85, 15th main road,
3rd cross, Road,
Lingarajapura Mai Road,
Hennuru,
Bangalore
(Represented by: B.R.P.)
1. Date of commission of offence : 19112018
2. Offences alleged against accused : U/s.279 and 304(A) of IPC,
Sec.134(a and b) R/w.187 and
Sec.56 R/w.192 of M.V.Act.
3. Date of recording of evidence : 26032019
4. Date of closing evidence : 16072022
5. Date of judgment : 13042023
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2
C.C.No.907/2019
JUDGEMENT
The SubInspector of Wilson Garden Traffic Police Station has filed the charge sheet against the accused for the offences punishable U/s.279 and 304(A) of IPC, Sec.134(a and b) R/w.187 and Sec.56 R/w.192 of M.V.Act
2. It is the case of the prosecution that on 19112018 at about 8.40 p.m. the accused being the driver of private bus bearing registration No.KA149912 drove the same on Malya Road, from Siddalingaiah circle towards RRMR Junction in a rash and negligent manner so as to endanger human life on RRMR road junction while suddenly he took a right turn at Hudson circle, at that time one unknown person aged about 2530 years fell on road from back door of the said bus and sustained grievous injuries and later succumbed to the death. Further on the day of accident the accused did not provide medical aid to the injured nor he intimated to the police about the accident. Further the accused vehicle was not in possession of fitness certificate on the day of accident, thereby the accused is alleged to have committed the offences punishable U/s.279 and 304(A) of IPC, Sec.134(a and b) R/w.187 and Sec.56 R/w.192 of M.V.Act.
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3. Upon taking cognizance, case came to be registered against accused for the offences punishable U/s.279 and 304(A) of IPC, Sec.134(a and b) R/w.187 and Sec.56 R/w.192 of M.V.Act. The accused appeared before the court through his counsel & got enlarged on bail. Charge sheet copies furnished to the accused and thereby provision U/s.207 of Cr.P.C. duly complied with.
4. Plea came to be framed for the offences U/s.279 and 304(A) of IPC, Sec.134(a and b) R/w.187 and Sec.56 R/w.192 of M.V.Act for which accused pleaded not guilty claimed to be tried.
5. During the course of trial, the prosecution has examined P.W.1 to 5 and got exhibited documents as per Ex.P.1 to Ex.P.12. On completion of prosecution side evidence, the statement of accused U/s.313 of Cr.P.C. was recorded and the accused denied all the incriminating evidence appearing against him and did not choose to lead any defence evidence.
6. Heard arguments on both sides.
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7. The points that arise for my consideration are as follows:
1. Whether the prosecution proves beyond all reasonable doubt that on 19112018 at about 8.40 a.m. the accused being the driver of private bus bearing registration No.KA149912 drove the vehicle on Malya Road, from Siddalingaiah circle towards RRMR junction in a rash and negligent manner as to endanger human life, thereby the accused has committed an offence punishable U/s.279 of IPC.?
2. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place the accused being the driver of the said vehicle, drove his vehicle in the above said manner. While so driving his vehicle on RRMR junction while suddenly he took a right turn at Hudson circle, at that time one unknown person aged about 2530 years fell on road from back door of the said bus and sustained grievous injuries and later he succumbed to the death, thereby the accused has committed an offence punishable U/s.304(A) of IPC?
3. Whether the prosecution further proves that the accused did not provide medical aid to the injured nor he intimated the police about the accident, thereby the accused has committed an offence punishable U/s.134 (a and b) R/w.
Sec.187 of M.V.Act?
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4. Whether the prosecution further proves that the accused vehicle was not in possession of fitness certificate on the day of accident, thereby the accused has committed an offence punishable U/s.56 R/w. Sec.192 of M.V.Act?
5. What order?
8. My answer to the above points are as under:
POINT No.1: IN THE NEGATIVE POINT No.2: IN THE NEGATIVE POINT No.3: IN THE NEGATIVE POINT No.4: IN THE AFFIRMATIVE POINT No.5: AS PER THE FINAL ORDER For the following REASONS
9. POINT No.1 to 4: 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 19112018 at about 8.40 p.m. the accused being the driver of private bus bearing registration No.KA149912 drove the same on Malya Road, from Siddalingaiah circle towards RRMR Junction in a rash and negligent manner so as to endanger human life on RRMR road junction while suddenly he took a right turn at Hudson circle, at 6 C.C.No.907/2019 that time one unknown person aged about 2530 years fell on road from back door of the said bus and sustained grievous injuries and later succumbed to the death. Further on the day of accident the accused did not provide medical aid to the injured nor he intimated to the police about the accident. Further the accused vehicle was not in possession of fitness certificate on the day of accident, thereby the accused is alleged to have committed the offences punishable U/s.279 and 304(A) of IPC, Sec.134(a and b) R/w.187 and Sec.56 R/w.192 of M.V.Act.
11. In order to prove the contents of complaint the prosecution examined witnesses as P.W.1 to P.W.5 and marked 11 documents as Ex.P.1 to Ex.P.12.
12. C.W.1/ Guttappa Doodi Halli is examined as P.W.1 who is the complainant. He deposed that on 19112018 he was discharging his duty between 2.00 p.m. to 10.00 p.m. at RRMR junction. One motor cycle rider informed that, at about 8.45 p.m. at Malya hospital near turning of RRMR Junction one person fell down from the bus. Later he went to the spot and shifted the injured to Malya hospital. The general public informed 7 C.C.No.907/2019 that the injured fell from one private bus. Due to the impact the injured was succumbed to the death. In this regard he has lodged complaint befoeWilson Garden police station and later when police conducted spot mahazar he put his signature to the mahazar at the accident spot.
During his crossexamination he deposed that he was not presented at the accident spot when accident has taken place, he has not seen the accident and he does not know the details of the person who provided him information about the accident and he visited the accident spot after 2 minutes of the accident. He further admits that he has signed the spot mahazar in police station.
13. C.W.2/ Saleem Pasha is examined as P.W.2 who is the mahazar witness. He deposed that the police have conducted the mahazar at the accident spot and he has signed the mahazar Ex.P.2 along with C.W.1.
During his crossexamination he deposed that he does not know the date of accident and he does not know the details of the deceased person and denied the suggestions of the accused counsel.
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14. C.W.4/Basavaraju is examined as P.W.3 who is the eye witness. He deposed that on 19112018 while he was proceeding near Malya hospital at about 8.45 p.m. one private bus bearing registration No.KA14 9912 came in a rash and negligent manner and suddenly took a right turn, at that time one passenger of the bus fell down from the said bus. Due to the impact he sustained grievous injuries and shifted the injured to Malya hospital and later he succumbed to the death. The accident has occurred due to the fault of the accused driver.
During his crosssexamination he deposed that he has seen the accident from the distance of 300 mtrs. HE further admitted that the accident has taken place before he visited the accident spot. He also admits that by the side of the bus other vehicles were also moving in the said direction and he also admitted that at that time the other vehicles move in a slow phase. He has not seen the driver prior to accident and he has not observed the bus prior to accident and denied the suggestions of the defence counsel
15. C.W.14/ Hemalatha is examined as P.W.4 who is the 2nd Investigation Officer of this case. He deposed 9 C.C.No.907/2019 that he received the case file from C.W.13 for further investigation. Further deposed that he seized the bus and he has arrested the accused and release him on bail. He visited the hospital and conducted inquest mahazar and received P.M. Report. He has issued 133 notice to the owner of the bus and received reply for notice. He has received IMV report from RTO officer. After completion of investigation he has filed a Charge Sheet against the accused.
During his cr0ssexamination he admits that he has not given any notice to produce the bus before him he admits that the accident ahs taken place when passenger deboarding the bus and denied the suggestions of accused counsel.
16. C.W.13/ Chandrappa is examined as P.W.5 who is the 1st Investigation Officer of this case. He deposed that on 19112018 C.W.1 came to station and informed that one person fell down from the bus and he sustained injuries. With regard to that police went to the spot and gave written complaint and registered the case in Crime No.65/18. He visited the spot and conducted spot mahazar and prepared rough sketch. Further he recorded 10 C.C.No.907/2019 the statement of C.W.4. For further investigation he has handed over the case file to C.W.14.
During his crossexamination he admits that the bus number was not mentioned in the complaint. He also admits that the complainant has told him that the accident has taken place while deboarding the bus and denied the suggestions of the accused counsel.
17. Out of the documents marked for prosecution Ex.P.1 is the complaint, Ex.P.2 is the Spot mahazar, Ex.P.3 is the Inquest mahazar, Ex.P.4 is the P.M. Report, Ex.P.5 is the IMV Report, Ex.P.6 is the 133 notice, Ex.P.7 is the reply, Ex.P.8 is the Death memo, Ex.P.9 is the Nikhanama, Ex.P.10 is the photo, Ex.P.11 is the Rough sketch.
18. After the conclusion of prosecution evidence the accused persons were informed about the incriminating evidences recorded against them by reading over the contents of deposition while recording 313 statement. The accused persons denied the incriminating evidence as false and submitted they will not lead any defence evidence and did not given any explanation.
11C.C.No.907/2019
19. Section 279 IPC deals with rash and negligent driving of any vehicle or riding on a public way in a rash and negligent manner so as to endanger human life or likely to cause hurt or injury to any person. In order to constitute an offence U/s.279 of IPC, it must be established that the accused was driving the vehicle on a public way in rash and negligent manner to endanger human life or to likely cause to hurt or injury to any other person. For the purpose of section 279 rash and negligent may be described as criminal rashness or criminal negligence. It must be more than mere carelessness of error of judgment. The essential ingredients of section 279 are: (1) rash and negligent driving or riding on a public way, (ii) The act must be such as to endanger human life or likely to cause hurt or injury to any person.
20. In order to constitute offence U/s.304(a) of IPC the prosecution must establish the essential ingredients of Sec.304(A) of IPC which are as follows: (I) The death of the person must be in question (ii) The death must have caused by the accused; and (iii) The act of the accused was rash or negligent and it did not amount to culpable homicide.
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21. 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. Further states that he has not seen the driver prior to accident and accident has taken place before he gone to the accident spot. 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 13 C.C.No.907/2019 bus no presumption of negligence can be drawn against the driver of the bus."
It was further held in the same case that:
"When he (accused) moved the vehicle forward his focus normally would have been towards what was ahead of the vehicle. He is not expected to move the vehicle forward when passengers are in the process of boarding the vehicle. But when he gets a signal from the conductor that the bus can proceed he is expected to start moving the vehicle. Here no witness has said, (including the conductor), that the driver moved the vehicle before getting signal to move forward. The evidence in this case is too scanty to fasten him with criminal negligence. Some further evidence is indispensably needed to presume that the passenger fell down due to the negligence of the driver of the bus. Such further evidence is lacking in this case."
22. 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 14 C.C.No.907/2019 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.
23. 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 15 C.C.No.907/2019 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 to 3 IN THE NEGATIVE.
24. POINT No.4: It is further alleged that the prosecution that the accused was driving the bus which does not possess a valid fitness certificate issued by competent authority on the alleged day of accident. The witness was informed about the said aspect and he has not produced any valid documents to substantiate his claim that and alleged day the bus was having valid fitness certificate to ride the same on public road. The accused did not choose to lead defence evidence and not 16 C.C.No.907/2019 produced documentary evidence before the court and no question was asked to investigating officer with regard to this aspect and no document is confronted to the witness. The prosecution has discharged its burden it is for the accused to rebutt the same but he has not done that. Hence point NO.4 answered in affirmative.
25. POINT No.5: In view of the above discussions and findings I proceed to pass the following ORDER Acting U/s.255(1) of Criminal Procedure code, the accused is hereby acquitted of the offences alleged against him punishable U/s.279 & 304(A) of IPC, Sec.134(a and b) R/w.187 of M.V.Act.
Acting under Sec.255(2) of Criminal Procedure Code, the accused is hereby convicted of the offence alleged against him punishable U/Sec.56 R/w 192 of IMV Act.
Accused is hereby directed to pay fine of Rs.5,000/ for the offences punishable U/s.146 R/w. 196 of IMV Act. in default shall undergo SI for 3 months.
17C.C.No.907/2019 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 13th day of April 2023).
(GAGAN M.R.) MMTC - IV, BANGALORE.
ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR THE PROSECUTION:
P.W.1: Guttappa doodi halli P.W.2: Saleem Pasha P.W.3: Basavaraju P.W.4: Hemalatha P.W.5: Chandrappa
2. LIST OF DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1: Complaint Ex.P.2: Spot mahazar Ex.P.3: Inquest mahazar Ex.P.4: P.M. Report Ex.P.5: IMV Report Ex.P.6: 133 notice Ex.P.7: Reply Ex.P.8: Death memo Ex.P.9: Nikhanama Ex.P.10: Photo Ex.P.11: Rough Sketch 18 C.C.No.907/2019
3. LIST OF WITNESSES EXAMINED FOR THE ACCUSED:
NIL
4. LIST OF DOCUMENTS MARKED FOR THE ACCUSED:
NIL (GAGAN M.R.) MMTC - IV, BANGALORE.