Bangalore District Court
Rt Nagar Tr Ps vs Mohammed Shuaib on 19 September, 2024
KABC080067892023
Presented on : 28-12-2023
Registered on : 28-12-2023
Decided on : 19-09-2024
Duration : 0 years, 8 months, 22 days
IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST
CLASS (TRAFFIC COURT-VI), BENGALURU CITY.
DATED THIS 19TH DAY OF SEPTEMBER 2024.
PRESENT : Smt.AKHILA H.K. B.A., LL.B.,
JMFC (TRAFFIC COURT-VI),
BENGALURU.
CC No.6051/2023
COMPLAINANT: State by R.T. Nagar Traffic P.S
Bengaluru.
(State by : Learned APP)
V/s
ACCUSED: Mohammed Shuaib
S/o Late Saleem
Aged about 34 years,
#32, 1st Floor, 5th Main Road,
Near Jameeya Maseedi,
Rehamath Nagara,
RT Nagara,
Bengaluru.
(Represented by Sri.C.C.N., Adv.,)
CC No.6051/2023
2
JUDGMENT
The Police Inspector of R.T. Nagar Traffic Police Station has filed charge sheet against the accused for the offence punishable U/Sec.279 and 304(A) of IPC.
2. The brief facts of the prosecution case are as under: -
That on 23.10.2023 at about 11.15 to 11.30 p.m. accused being the rider of two wheeler bearing registration No.KA-03-KP-4454 rode the same within the jurisdiction of R.T. Nagar Traffic Police station on Jayamahal Main Road, From Cantonment towards JC Nagar at a high speed in a rash and negligent manner so as to endanger human life and near Priyadarshini Traffic Signal hit to one pedestrian Sri.Selvam when he was crossing the road, as a result pedestrian sustained grievous injuries on his head and succumbed to death. As such the accused has committed an offence punishable U/Sec.279 and 304(A) of IPC.
3. Cognizance was taken by perusing the prosecution papers and materials, the accused on receipt CC No.6051/2023 3 of summons appeared before the court and got himself enlarged on bail. On the said date the prosecution papers were furnished to the accused as per Sec.207 of Cr.P.C. and substance of accusation in the form of plea was read over and explained to him, accused pleaded not guilty and claimed to be tried.
4. During the course of trial the prosecution has examined PWs.1 to 4 and got marked Ex.P.1 to 14. The statement of accused as per Sec.313 of Cr.P.C. was recorded the accused had no explanation and he denied the incriminating circumstances appearing against him.
5. Heard both sides.
6. The point that arises for my determination is as under:
1. Whether the prosecution proves beyond all reasonable doubt that, on 23.10.2023 at about 11.15 to 11.30 p.m. accused being the rider of two wheeler bearing registration No.KA-03-KP-4454 rode the same within the jurisdiction of R.T. CC No.6051/2023 4 Nagar Traffic Police station on Jayamahal Main Road, From Cantonment towards JC Nagar at a high speed in a rash and negligent manner so as to endanger human life and thereby committed an offence punishable under Sec.279 of IPC Act?
2. Whether the prosecution proves beyond all reasonable doubt that, on the same date, time and place accused drove his vehicle in a rash and negligent manner and near Priyadarshini Traffic Signal hit to one pedestrian Sri.Selvam when he was crossing the road, as a result pedestrian sustained grievous injuries on his head and succumbed to death, thereby accused committed an offence punishable U/Sec.304(A) of IPC ?
3. What Order?
7. My answer to the above points are as under:
Point No.1 : In the negative;
CC No.6051/2023 5 Point No.2 : In the negative;
Point No.3 : As per final order for the following;
REASONS
8. POINT NOS.1 & 2: For the sake of convenience and to avoid repetition of facts, these points are taken up for common discussions to have brevity.
9. The prosecution case against the accused is that on 23.10.2023 at about 11.15 to 11.30 p.m. accused being the rider of two wheeler bearing registration No.KA-03-KP-4454 rode the same within the jurisdiction of R.T. Nagar Traffic Police station on Jayamahal Main Road, From Cantonment towards JC Nagar at a high speed in a rash and negligent manner so as to endanger human life and near Priyadarshini Traffic Signal hit to one pedestrian Sri.Selvam when he was crossing the road, as a result pedestrian sustained grievous injuries on his head and succumbed to death.
CC No.6051/2023 6
10. In order to bring home the charge against the accused the prosecution has examined 4 witnesses as PWs.1 to 4 and got marked Ex.P.1 to 14. Ex.P.1 is the complaint, Ex.P.2 is the spot mahazar, Ex.P.3 is the one photo, Ex.P.4 is the one CD, Ex.P.5 is the FIR, Ex.P.6 is the death intimation, Ex.P.7 is the rough sketch, Ex.P.8 is the inquest mahazar, Ex.P.9 & 10 are the notice and reply U/Sec.133 of IMV Act, Ex.P.11 is the indemnity bond, Ex.P.12 is the PM report, Ex.P.13 is the IMV report and Ex.P.14 is the one photo.
11. Before adverting to the appreciation of evidence it is proper to state in brief the evidence deposed by the prosecution witnesses.
12. C.W.1 examined as P.W.1 is the complainant of this case. He deposed that, on 23.10.2023 at 12.00 to 12.15 a.m. his aunt informed him through phone that his uncle Selvam met with an accident. By receiving the information he went to Bowring hospital, there he came to know that his uncle met with an accident at 11.30 p.m. and he sustained grievous injuries on his head and CC No.6051/2023 7 for further treatment he was shifted to Nimhans hospital. Further he deposed that, when his uncle crossing the road from Cantonment Railway station towards Jayamahal road one scooter bearing No.4454 proceeding from Railway station towards Jayamahal and hit to his uncle, as a result his uncles head touched to footpath and sustained grievous injuries. Further he deposed that, while he was shifting his uncle to Nimhans hospital he succumbed to death. With this regard on the same day at 6.00 to 6.30 a.m. he lodged a complaint as per Ex.P.1. Further he deposed that, police took him to accident spot and after that he signed on Ex.P.2 at police station and except him nobody has signed on it. As the rider of the offending vehicle has admitted in hospital police have shown him through phone, for that he has not identified the accused before the Court. In his cross examination he has stated that, when he went to spot of accident his uncle was unconscious. He has stated that, he does not know the distance between the footpath and the spot of accident. He has admitted that, he has not witnessed the accident. He has admitted that, police have typed the complaint and he has affixed his signature to CC No.6051/2023 8 the complaint. He has admitted that, the does not know the contents of Ex.P.2. He has admitted that, Ex.P.3 photographs were taken in RT Nagar Traffic police station.
13. C.W.2 examined as P.W.2 is the eye witness to the incident. He deposed that, on 23.10.2023 at 11.00 to 11.15 p.m. he was proceeding in his two wheeler from Frazer town towards Srirampura at that time at Priyadarshini Signal one pedestrian was crossing the road meanwhile one Activa bearing No.KA-03-KP-4454 hit to pedestrian, as a result pedestrian fell down and sustained grievous injuries and public shifted him to Bowring hospital and rider of the offending vehicle also sustained injuries in the accident. Further he came to know that pedestrian name is Selvam through his book and also informed the same to C.W.1. Further he deposed that, rider of the offending vehicle also came in high speed and pedestrian also consumed alcohol. Further he deposed that, he has shown the accident spot to the police and he signed on Ex.P.2 at police station at 10.00 a.m. Further he deposed that, accident has CC No.6051/2023 9 occurred due to the fault of the rider of the offending vehicle. In his cross examination he has admitted that, the spot of accident is a heavy traffic road. He has admitted that, there is no zebra crossing and signal in the spot of accident. He has admitted that, there were many vehicle proceeding in front of him. He has admitted that, he does not know the direction from which the pedestrian was crossing the road. He has stated that, the accident occurred at a distance of 2 feet from the footpath. He has admitted that, he is not seen the deceased and he went to the spot after hearing the sound from the accident. He has admitted that, he does not know the contents of Ex.P.2.
14. C.W.11 examined as P.W.4 is the IMV Inspector. He deposed that, on 25.10.2023 he inspected the two wheeler bearing No.KA-03-KP-4454 and he has given report as per Ex.P.13. Further he opined that accident has not occurred due to fault of mechanical defect of the offending vehicle. In his cross examination he has stated that, there are chances of the damages mentioned in Ex.P.13 to occur if a vehicle skids and falls CC No.6051/2023 10 by itself. She has also admitted that, the damages mentioned in Ex.P.13 may occur if a heavy vehicle hits a smaller vehicle.
15. C.W.13 examined as P.W.3 is the Investigating Officer and she has deposed about the investigation conducted by her. In the cross examination she has stated that C.W.1 had prepared the complaint before hand. She has admitted that in the complaint it is stated that, C.W.1 gave the complaint because of the advice of the police. She has admitted that, there is no traffic signal in Ex.P.14 photograph. She has admitted that, she has not investigated while C.W.2 was present at the spot of accident. She has denied that, the pedestrian had consumed alcohol at the time of accident.
16. With the above evidence, this court has to ascertain whether the prosecution has proved the guilt of the accused beyond all reasonable doubts. In order to prove offence U/Sec.279 of IPC the prosecution has to prove;
CC No.6051/2023 11
(i) Rash and negligent driving on public way
(ii) The act must be such as to endanger human life or likely to cause hurt or injury to any person.
17. To prove an offence U/sec.304(A) of IPC the prosecution has to prove;
i) death of a person.
ii) the death occurred due to the rash or negligent act of the accused person.
iii) there must be an absence of an intention to cause death
iv) there must be a direct link between the rash and negligent act and death of the victim.
18. After marshalling all the oral and documentary evidence it is crystal clear that, in this case there is no dispute regarding the accused riding the offending vehicle bearing registration No.KA-03-KP-4454 on the date of the accident. There is no dispute about the death of Sri.Selvam who was the pedestrian. As per P.M. report/Ex.P.12 the injuries are ante-mortem and death occurred due to head injury sustained. Hence, there is CC No.6051/2023 12 no dispute that the injuries were sustained by the deceased as a result of accident. There is no dispute regarding IMV report as per Ex.P.13, which states that there is no mechanical defects in the offending vehicle. Hence, the accident did not occur due to any mechanical defects of the vehicle involved in the accident. Since, the death of the Sri.Selvam is not disputed and it is not denied that the accused was driving the offending vehicle. The Court only needs to consider if the accused was driving the offending vehicle and there was any negligence or rashness on the part of the accused due to which the accident occurred.
19. In order to prove rashness or negligence of the accused the prosecution has examined PW.2 who is the eye witness. P.W.2 in his evidence has categorically stated that, the deceased has consumed alcohol at the time of the accident. He has specifically stated that, the accident occurred because the rider of the two wheeler came at a high speed and pedestrian had consumed alcohol. In cross examination he has admitted that, there is no zebra crossing or traffic light in the spot of the CC No.6051/2023 13 accident. Perusal of Ex.P.7/rough sketch also reveals there is no zebra crossing or traffic signal at the spot of accident. Therefore it appears that, the deceased Selvam has suddenly come into the path of the vehicle of the accused in an inebriated condition due to which the accident has occurred. Therefore, the sole responsibility of the accident cannot be pinned on the accused. Apart from P.W.2 prosecution has not examined any other eye witness. Prosecution has examined P.W.1 who is the complainant but he is a hearsay witness and he has not witnessed the accident. Hence, his evidence is not useful to the Court. Therefore, prosecution is left only with the evidence of P.W.2 who has deposed that deceased was inebriated at the time of the incident.
20. Apart from the eye witnesses the prosecution is relying on documentary evidence to corroborate the version of P.W.2. In this regard the prosecution is relying on mahazar and rough sketch marked as Ex.P.2 and 7. In order to prove the spot of accident police have conducted mahazar as per Ex.P.2 and P.W.1 and 2 are the witnesses to the mahazar. Both P.W.1 and 2 have CC No.6051/2023 14 deposed that they do not know the contents of the mahazar. Hence, their evidence is not useful to the prosecution. It is the contention of the accused that, the deceased has not observed the vehicles on the road and he has crossed the road negligently in a place where there was no zebra crossing. P.W.2 in his evidence has stated that, there was no zebra crossing in the spot of accident. Reference in this regard must be made to the rough sketch marked as Ex.P.7 wherein there is no indication of any zebra crossing or traffic signal. Even in Ex.P.1/complaint P.W.1 does not state that deceased was crossing the road in the zebra crossing when the accident occurred. The prosecution has submitted photographs of the spot of accident as Ex.P.14. Even Ex.P.14 does not reveal zebra crossing or traffic lights. Therefore, even Ex.P.2 and 7 do not by themselves prove the guilt of the accused. Further the prosecution is relying on IMV report as per Ex.P.13, wherein it is stated that, vehicle of the accused is damaged in the front body, front left all round guard and scratch marks on the front headlight. P.W.4 is the IMV Inspector who had issued Ex.P.13 in her cross examination has admitted that, damages found CC No.6051/2023 15 on the vehicle of the accused may occur if a heavy vehicle hits the two wheeler. Therefore, even the IMV report does not aid in proving the guilt of the accused. Prosecution is relying on PM report which is marked as Ex.P.12 and the same does not indicate that the injuries occurred due to the negligence of accused. Therefore, even the documentary evidence submitted by the prosecution does not corroborate the evidence of P.W.2. Hence, solely on the basis of uncorroborated testimony of P.W.2 this Court cannot proceed to convict the accused.
21. Even if the evidence of P.W.2 is accepted he has only deposed that the accused drove his vehicle in high speed and negligent manner. He has not described either the speed of the offending vehicle or the nature of negligence committed by the accused. It is an admitted fact that, the road in which the accident occurred is a heavy traffic road and it is not possible for any vehicle to drive at high speed in such a road. Moreover, P.W.2 is not an expert to say the speed of the vehicle. Further it is decided by the Hon'ble Supreme Court in Ravi Kapoor V/s State of Rajastan reported in (2012) 9 SCC 284 that, CC No.6051/2023 16 "Rash and negligent driving has to be examined in light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to 'rash and negligent driving' within the meaning of the language of Section 279 of the Indian Penal Code, 1860. That is why the legislature in its wisdom has used the words 'manner so rash or negligent as to endanger human life'. The preliminary CC No.6051/2023 17 conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated under Section 279 of the Indian Penal Code is attracted".
22. In the said judgment, the Apex Court further held that, 'negligence' means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and CC No.6051/2023 18 surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence. The court has to adopt another parameter, i.e., 'reasonable care' in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others. At the same time it is also the duty of the pedestrian to follow the traffic rules.
23. In this case the permissible speed limit in the said road is not on record. In this case the deceased who was the pedestrian has virtually walked into the path of the vehicle where there was no zebra crossing and he got CC No.6051/2023 19 injured. This is clearly proved by mahazar which is marked as Ex.P.2 and rough sketch marked as Ex.P.7. There is a duty on the pedestrian to avoid crossing the road at places where there are no zebra crossing and a duty is cast upon them to cross the road only at a designated place. A breach of this rule immediately holds the pedestrian also for negligence and it cannot be said that the accident occurred solely due to the negligence of the accused.
24. Hence, under the circumstances the benefit of doubt has to be extended to the accused. By ascertaining all these oral and documentary evidence it is clear that, there is no substantive, cogent and corroborative evidence to prove the guilt of the accused. Therefore, by considering the overall facts and circumstances of this case, this court is of the considered view that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. Hence, point Nos.1 and 2 are answered in the Negative.
CC No.6051/2023 20
25. Point No.3: In view of the findings on point Nos.1 & 2, this court proceeds to pass the following;
ORDER
Acting under Sec.255(1) of
Cr.P.C. accused is hereby acquitted for accusation of commission of the offence punishable U/Sec.279 and 304(A) of IPC.
His bail bond and surety
bond stands cancelled after the
lapse of appeal period.
(Dictated to the stenographer directly on computer, typed by her, corrected and then pronounced by me in open court on this the 19th day of September, 2024) (Akhila H.K.) JMFC (Traffic Court-VI), Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1 Manivannan
PW.2 Harisha
CC No.6051/2023
21
PW.3 Sheela K
PW.4 Amoolya
LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1 Complaint Ex.P.2 Spot mahazar Ex.P.3 1 Photo Ex.P.4 1 CD Ex.P.5 FIR Ex.P.6 Death memo Ex.P.7 Rough sketch Ex.P.8 Inquest mahazar
Ex.P.9-10 Notice & Reply U/Sec.133 of IMV Act Ex.P.11 Indemnity bond Ex.P.12 PM report Ex.P.13 IMV report Ex.P.14 1 Photo LIST OF WITNESSES EXAMINED FOR ACCUSED:
-Nil-
LIST OF DOCUMENTS MARKED FOR ACCUSED:
-Nil-
(Akhila H.K.) JMFC (Traffic Court-VI), Bengaluru.