Bangalore District Court
Sri.Kemparaju.N vs State By on 3 October, 2020
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH-67)
DATED: This the 3 rd day of October, 2020
PRESENT
Smt.K.KATHYAYANI, B.Com., L.L.M .,
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.
Criminal Appeal No.2313 of 2018
Appellant: Sri.Kemparaju.N.
So Late Nanjappa,
Aged about 47 years,
R/at Talagattapura,
Agrahara, Kanakapura Road,
Bengaluru.
(By Sri.R.V.Srirama Reddy, Adv.)
/Vs/
Respondent : State by:
HSR Layout Traffic
Police Station,
Bengaluru.
(By Public Prosecutor).
JUDGMENT
The appellant/accused has preferred this appeal against the respondent/complainant under Section 374(3) of Cr.P.C. being aggrieved by the judgment of conviction passed in CC.No.3906/2017 on 30.10.2018 by the learned MMTC-VI, Bengaluru.
2 Crl.A.No.2313/2018
2. For the sake of convenience, the ranks of the parties are retained as they are before the learned Magistrate Court.
3. The brief facts of the case are that;
a) It is the case of the prosecution that on 03.08.2016 at about 3:00 p.m., CW-2 Smt.Jyothi was riding her Activa Honda bearing registration No.KA-01 HN-3841 along with her son Master Ronak as pillion rider.
b) When she reached near Doddakannahalli bus stand in front of SLN Electrical shop and was crossing the road hump, the tipper lorry bearing registration No.KA-05 AC-2939 being driven by the accused N.Kemparaju in a rash and negligent manner and on the said hump, touched the vehicle driven by CW-2.
c) Due to the impact, Master Ronak fell down and the wheel of the said lorry ran over on the head of Ronak, because of which, he sustained grievous bleeding head injuries and succumbed to the said injuries on the way to hospital.
d) The driver of the lorry/the accused left the spot after the accident by neither informing the alleged accident 3 Crl.A.No.2313/2018 to the nearest police station nor showing the civility of taking the child to the hospital for treatment. Accordingly, the complaint was registered against the accused.
4. The trial Court record reveals that on receipt of the FIR and on production of the accused, the accused was enlarged on bail.
a) After filing of charge sheet, the learned Magistrate has taken the cognizance against the accused for the offences punishable under Sections 279 and 304-A of IPC as well as Sections 134(a) and (b) read with Section 187 of MV Act and issued summons to the accused.
b) The copies of the charge sheet and its annextures were furnished to the accused under Section 207 of Cr.P.C. free of costs.
c) The plea of the accused was recorded for the offences alleged for which he has pleaded not guilty and claimed to be tried and accordingly, the case was posted to lead prosecution evidence.
d) In support of its case, the prosecution in all, got examined 7 witnesses as PWs-1 to 7. Got exhibited 7 documents at Ex.P-1 to 7.
4 Crl.A.No.2313/2018
e) Statement of the accused was recorded under Section 313 of Cr.P.C., wherein he has denied all the incriminating evidence against him and has not led any defence evidence.
f) The learned Magistrate, after hearing the arguments of both sides on merits of the case and on going through the evidence on record, has passed the impugned judgment convicting the accused for the offences alleged and sentenced accordingly.
5. Being aggrieved by the judgment of conviction, the accused has approached this Court with the following grounds;
a) The alleged accident has occurred on a hump in front of Doddakannahalli hospital bus stand. Since the road is narrow and busy with people, it is not possible to drive the vehicle in a rash and negligent manner and the trial Court has erred in not considering the same.
b) Ex.P-2 the spot mahazar and Ex.P-9 the rough sketch of the alleged spot of incident, do not derive the spot where the two wheeler was and touching of tipper lorry bearing registration No.KA-05 AC-2939 from the backside. 5 Crl.A.No.2313/2018
c) There is no specific mention regarding how and in the manner in which the accident occurred as per the Ex.P-2 and 9. Hence, it is not possible to believe that the tipper lorry has touched the scooter from the backside.
d) The trial Court has erred in not considering the fact that CW-2 herself has driven the vehicle on the road hump in a negligent manner resulting in the vehicle skid and Ronak who was not wearing helmet, fell down and sustained grievous injuries on his head and other parts of the body and succumbed to the same on the way to the hospital.
e) The trial Court has erred in not considering the fact that the front portion of the scooter including the headlight and mirror and both side body was damaged which clearly shows that the said damages were caused due to skid of the vehicle and the pillion rider Ronak who fell down sustained grievous bleeding head injuries resulting in his death and if the bleeding was prevented, he might have been alive.
f) The trial Court has erred in not considering the fact that there is no mention in Ex.P-2 spot mahazar, Ex.P-9 6 Crl.A.No.2313/2018 rough Sketch and Ex.P-11 the MV report regarding the blood stains on the spot or on the vehicles involved in the accident. Hence, it cannot be believed that the wheel of the tipper lorry has ran on the head of the deceased Ronak.
g) The trial Court has erred in not considering the fact that the CW-2 Smt.Jyothi, the rider of the two wheeler was not having driving licence and that PW-4 being the investigating officer has not supported the case of the prosecution.
h) The trial Court has erred in not considering the witnesses CWs-3 and 4 as planted witnesses as they are the known persons to CWs-1 and 2.
i) The trail Court has erred in not considering the fact that there are no details mentioned in Ex.P-10 the Post Mortem report at Part 1 and 2 and also in Ex.P-5 the inquest report at column 7 that the injuries sustained by the deceased Ronak were due to the running of wheel of the tipper lorry on his head.
j) The trial Court has erred in not taking into consideration that as per Ex.P-10 Post-Mortem report, since the death of Ronak was due to bleeding head injuries 7 Crl.A.No.2313/2018 and due to injuries on his chest and stomach, he might have rescued by giving at least first aid treatment in the Government hospital which was just in front of the accident spot. Hence, the death of the injured was not only due to injuries, but was due to not providing immediate treatment.
k) The impugned judgment of conviction is against the Law and all probabilities of the case. On that ground alone, the impugned judgment is liable to be set aside. Hence, prayed this Court to set aside the judgment of conviction and sentence passed and acquit him in the interest of justice and equity.
6. On due service of notice by this Court, the State was represented by the learned Public Prosecutor.
7. Secured the trial Court record.
8. Heard the learned counsel for the accused and the learned Public Prosecutor for the complainant.
a) In support of his arguments, the counsel for accused/appellant has produced Xerox copies of the following decisions.
8 Crl.A.No.2313/2018
1) (1980)1 Supreme Court Cases 30 in Syed Akban and State of Karnataka and
2) 2002 Crl.L.J. 348 in State of Rajasthan Vs Nauratan Mal.
b) This Court has carefully gone through the above noted decisions and perused the record.
9. On the basis of the grounds made out by the accused, the following points are arisen for the due determination of this Court.
1) Whether the appellant/accused proves the grounds urged in support of this appeal?
2) Whether the impugned judgment requires interference by this Court?
3) What Order?
10. The findings of this Court on the above points are answered in the;
1) Points Nos.1 & 2 : Negative.
2) Point No.3 : As per final order for the following reasons.
REASONS
11. POINTS Nos.1 & 2:- Since findings on point No.2 is consequent to the findings on point No.1, these points are taken together for consideration. 9 Crl.A.No.2313/2018
12. Before venturing into the grounds urged by the accused in support of his present appeal, it is necessary to go through the provisions of the offences alleged.
13. Admittedly, the offences alleged are punishable under Sections 279 and 304-A of IPC as well as Sections 134(a) and 134(b) read with Section 187 of MV Act which 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 and 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 extent to one thousand rupees, or with both.
14. So, the essential ingredients to constitute the offence under Section 279 of IPC are;
a) A person drives any vehicle or rider (any human being),
b) Such driving or riding is on any public way.
c) It is done in a manner so rash or negligent -
i) as to endanger human life or,
ii) as to be likely to cause hurt or injury to any other persons.
"304-A. Causing death by negligence. - Whoever causes the death of any person by dong any rash or negligent act not amounting to culpable homicide, shall be 10 Crl.A.No.2313/2018 punished with imprisonment of either description for a term which may extend to two years,ow with fine, or with both".
15. So, the essential ingredients to constitute the offence under Section 304-A of IPC are;
a) Death must have been caused by the accused.
b) Death caused by rash or negligent act.
c) Rash and negligent act must not amount to culpable homicide.
16. The trial Court record demonstrates that the defence taken by the accused in the course of the cross examination of the prosecution witnesses is that CW-2 being the rider of the two wheeler rode her vehicle with high speed and at the road hump on the accident spot had skid; due to which she fell on the left side and her son/the deceased pillion rider fell on the right side at back left wheel of the lorry; the driver did not observe the same and the wheel moved on the head of the deceased resulting in the present accident causing severe bleeding injuries resulting in his death.
17. So, the facts remained admitted are; 11 Crl.A.No.2313/2018
a) The accident, the date, time and place of the accident.
b) The accused was the driver of the lorry at the time of accident.
c) CW-2 was the rider of the two wheeler and the deceased was the pillion rider.
d) The accident took place at the road hump on Doddakannahalli Village Main Road leading from Kadubeesanahlli to Sarjapura.
e) Both the vehicles were moving on the same direction.
f) The deceased sustained severe bleeding injuries and succumbed to those injuries.
18. Thus, the first two essential ingredients to constitute the offence under Section 279 of IPC i.e.,
a) A person drives any vehicle or rider (any human being),
b) Such driving or riding is on any public way. are not in dispute.
12 Crl.A.No.2313/2018
19. To attract the offence under Section 279, the prosecution is required to prove the 3 rd essential ingredient i.e.,
a) It is i.e., driving is done in a manner so rash or negligent -
i) as to endanger human life or,
ii) as to be likely to cause hurt or injury to any other persons.
and to attract the offence under Section 304-A of IPC, excluding the death, the prosecution is required to prove all the three essential ingredients i.e.,
a) Death must have been caused by the accused.
b) Death caused by rash or negligent act.
c) Rash and negligent act must not amount to culpable homicide.
20. So far Sections 134(a) and 134(b), the provisions are extracted here below;
"134. Duty of driver in case of accident and injury to a person.- When any person is injured or any property of a third party is damage, as a result of an accident in which a motor vehicle is involved, the driver of the vehicle or other person in-charge of the vehicle shall -
(a) unless it is not practicable to do so on account of of fury or any other reasons beyond his control, take all reasonable steps to secure medical attention for the injured person, (by conveying him to the nearest medical 13 Crl.A.No.2313/2018 practitioner or hospital, and it shall be the duty of every registered medical practitioner or the doctor on the duty in the hospital immediate to attend to the injured person and render medical aid to or treatment without waiting for any procedural formalities), unless the injured person or his guardian, in case he is a minor, desires otherwise;
(b) give on demand by a police officer any information required by him, or, if no police officer is present, report the circumstances of the occurrence, including the circumstances, if any, for not taking reasonable steps to secure medical attention as required under clause (a), at the nearest police station as soon as possible, and in any case within twenty-four hours of the occurrence.
......."
21. The plain reading of the above provisions mandates the driver of a vehicle caused the accident to provide proper medical care and to give necessary information about the accident to the nearest police station. The trial Court record does not show any defence raised by the accused with regard to the allegations in respect of these offences.
22. In the above background, if the grounds urged by the accused in support of this appeal are taken into consideration, it is one of the grounds urged by him that the alleged accident has occurred on a hump in front of Doddakannahalli hospital bus stand. Since the road is narrow and busy with people, it is not possible to drive the 14 Crl.A.No.2313/2018 vehicle in a rash and negligent manner and the trial Court has erred in not considering the same.
23. With regard to the above issue, as noted above, it is not in dispute that the accident took place at a road hump on Doddakannahalli Village Main Road leading from Kadubeesanahlli to Sarjapura.
24. In their cross examination,
a) CWs-2 to 4 have admitted the suggestions that there is a drainage on the left side of the road at the accident spot.
b) CWs-2 and 16 have admitted the suggestion that the density of the vehicles on the said road is more.
c) CW-16 has admitted the suggestion that the accident spot is a main road wherein Doddakannahalli and Sarjapur roads join.
25. It is in the complaint at Ex.P-1 and in the spot mahazar at Ex.P-2 that the accident took place in Doddakannahalli Village in front of primary health center.
26. It is in Ex.P-2 that the road at the accident spot is tar road of 30 feet width, straight and leveled road and there is a road hump at the spot and there are drainages 15 Crl.A.No.2313/2018 on both the sides of the road. The rough spot sketch at Ex.P-9 is in corroboration with the spot mahazar at Ex.P-2.
27. Admittedly, the accident took place at 3:00 p.m. Hence, in view of the above evidence on record in respect of the topography of the spot and the density of the vehicles as well as people, it can be safely concluded that one cannot drive the vehicle with high speed. But, so far the rashness and negligent act if any in driving the lorry, the above facts are not helpful to the accused.
28. As rightly observed by the trial Court, the eye witnesses i.e., CWs-2 to 4 have specifically deposed that the accused drove his lorry in a rash and negligent manner. Their cross examination reveals that their chief evidence is denied by way of suggestions on behalf of the accused and those suggestions are not only in turn denied by CWs-2 to 4, but they have also stood on their chief evidence that the accused was rash and negligent in driving his lorry even in their cross examination.
29. Hence, to conclude this ground, it is necessary to go through the other related grounds as well. The other connected grounds urged by the accused are that; 16 Crl.A.No.2313/2018
a) Ex.P-2 the spot mahazar and Ex.P-9 the rough spot sketch do not derive the spot where the two wheeler was and touching of tipper lorry bearing registration No.KA-05 AC-2939 from the backside.
b) There is no specific mention regarding how and the manner in which the accident occurred as per the Ex.P-2 and 9. Hence, it is not possible to believe that the tipper lorry has touched the scooter from the backside.
30. So far the above grounds, the plain perusal of the spot mahazar at Ex.P-2 and spot rough sketch at Ex.P-9 clearly show that as rightly urged by the accused, they do not reflect the spot where two wheeler of CW-2 was/moving at the time of accident.
31. But, it is specifically stated in the spot mahazar at Ex.P-2 that when CW-2 slow down the two wheeler as there was road hump, then the lorry came on the same direction from the back side with high speed and in a negligent manner and dashed to the scooter. Due to the impact, the rider fell on the left side and the pillion rider on the right side on whose head the wheels of the lorry moved on.
17 Crl.A.No.2313/2018
32. As noted above, it is the case of the prosecution that the left front wheel moved over the head of the deceased and it is the defence of the accused that deceased fell down at the back side wheels. The accused has not disputed the fact that the deceased fell on the right side and CW-2 on the left side. So, it can be safely concluded that when the accident happened, the two wheeler was on the right side and the lorry was on the left side.
33. Now, the fact to be seen is whether CW-2 and the deceased fell down due to the hit by lorry or due to the skid because of the riding of CW-2 and by that time, where the two wheeler was i.e., whether it was on the front or by the side of the lorry.
34. To see the above facts, it is also relevant to go through the other related grounds urged by the accused and such grounds of the accused are that;
a) The trial Court has erred in not considering the fact that CW-2 herself has driven the vehicle on the road hump in a negligent manner resulting in the vehicle skid and the deceased who was not wearing helmet, fell down and sustained grievous injuries on his head and other 18 Crl.A.No.2313/2018 parts of the body and succumbed to the same on the way to hospital.
b) The trial Court has erred in not considering the fact that the front portion of the scooter including the headlight and mirror and both side body was damaged which clearly shows that the said damages were caused due to skid of the vehicle and the pillion rider/the deceased who fell down sustained grievous bleeding head injuries resulting in his death and if the bleeding was prevented, he might have been alive.
c) The trial Court has erred in not taking into consideration that as per Ex.P-10 Post-Mortem report, since the death of the deceased was due to bleeding head injuries and due to injuries on his chest and stomach, he might have rescued by giving at least first aid treatment in the Government hospital which was just in front of the accident spot. Hence, the death of the deceased was not only due to injuries, but was due to not providing immediate treatment.
35. So far the fact that whether the deceased worn the helmet or not, there is no mention in any of the police 19 Crl.A.No.2313/2018 papers. Hence, there is nothing on record to discard the contention of the accused that the deceased did not wear the helmet.
36. CW-14 is the MV Inspector who examined both the vehicles and issued the MV Report at Ex.P-11. It is in his chief evidence that;
a) The front bumper of the lorry was damaged and
b) in case of the two wheeler,
i) headlight,
ii) front mud-guard,
iii) front shape,
iv) right mirror,
v) back mud-guard,
vi) brake light and
vii) indicators were damaged.
He tested both the vehicles on road and found the brakes of the vehicles were in order and in his opinion, the accident is not due to any mechanical defects.
37. In his cross examination, CW-14 has denied the suggestion that there is possibility of the damages sustained by the two wheeler might be suffered in case of skid of the two wheeler as well. He has admitted the suggestion that the bumper of the lorry would be thick and 20 Crl.A.No.2313/2018 there is no possibility of dent to bumper in case of hit by any small vehicles.
38. The MV Report at Ex.P-11 demonstrates that the two wheeler sustained damages to;
a) headlight mask,
b) front wheel mudguard,
c) front shape,
d) both side body,
e) right side rear view mirror,
f) rear wheel mudguard,
g) brake light and
h) rear indicators and the front bumper of the lorry was damaged.
39. So, there are slight difference when compared to the oral evidence of CW-14 and the MV report at Ex.P-11 with regard to the damages to the two wheeler and some of the damages mentioned in Ex.P-11 are not stated by CW- 14 in his evidence. However, the accused has not disputed the nature of damages caused to the vehicles as mentioned in Ex.P-11.
40. Hence, in the back ground of the nature of damages suffered by the vehicles, if the defence of the accused is taken into consideration, it is his defence that at the road hump, CW-2 rode the two wheeler in a rash 21 Crl.A.No.2313/2018 and negligent manner, because of which, there was skid of the two wheeler, due to which, CW-2 fell on the left side and the pillion rider/the deceased on the right side at the back wheels of the lorry.
41. There is no mention in any of the police papers with regard to the place at which the vehicles were after the accident. Of course, it is in the evidence of the eye witness i.e., CW-3 that after the accident, the driver left the lorry at the spot itself and ran out.
42. But, it is not the case of anybody that any of the rider/driver applied sudden brake, there were brake/tyre marks on the spot or any of the vehicles were dragged from the spot due to the impact of the accident. Hence, it can be safely concluded that the vehicles were stopped at the accident spot itself.
43. Admittedly, the only damage to the lorry is to the front bumper. On the other hand, the damages to the two wheeler are;
a) headlight mask,
b) front wheel mudguard,
c) front shape,
d) both side body,
e) right side rear view mirror, 22 Crl.A.No.2313/2018
f) rear wheel mudguard,
g) brake light and
h) rear indicators.
44. There is no evidence on record with regard to description of the road hump at the accident spot i.e., height, width and etc. Hence, it is to be presumed that it is a normal road hump. As noted above, in view of the topography of the road at the accident spot and the density of both the men and vehicles, it can be safely said that the vehicles cannot move with high speed there.
45. Hence, if the version of the accused is accepted that CW-2 rode the two wheeler in a rash and negligent manner resulting in skid, the damages that would have suffered by the two wheeler;
a) May to the "headlight mask", "front wheel mudguard" and "right side rear view mirror".
b) The possibility of damages to the "front shape" is very less.
c) There is no possibility of damages to "both side body" and it is only to any one side of the body in particular to the right side as there is damages to "right side rear view mirror".
23 Crl.A.No.2313/2018
d) There is no possibility of damages at all to "rear wheel mudguard", "brake light" and "rear indicators" and thus, the denial of CW-14 that there is possibility of the damages sustained by the two wheeler might be suffered in case of skid of the two wheeler as well appears probable.
46. If the above damages are viewed from the angle of the case of the prosecution that the lorry hit the two wheeler from the backside, the possibility of the two wheeler suffering damages as stated in Ex.P-11 is possible, of course, excluding damages to "both side body".
47. Hence, the above observations clearly demonstrate that the case of the prosecution is much probable with regard to the manner of accident.
48. So far the contention in these grounds that if the bleeding was prevented, the deceased might have been alive and the deceased might have been rescued by giving at least first aid treatment in the Government hospital which was just in front of the accident spot and thus, the death of the deceased was not only due to injuries, but was due to not providing immediate treatment, it is evident on record that the accident took place in front of PHC. 24 Crl.A.No.2313/2018
49. It is in the evidence of CW-1 that he went to the spot and his son was not there. Hence, he went to Motherhood hospital, wherein his wife intimated him about the death of the deceased.
50. It is in the evidence of CW-2 that she took her son first to Carmelram hospital and therefrom for higher treatment to Motherhood hospital, wherein she was intimated that the deceased died at the spot itself.
51. It is in the evidence of CW-3 that he took the deceased to Motherhood hospital in an auto and therefrom for higher treatment to St. John's hospital.
52. It is in the evidence of CW-4 that he was taking the injured boy to Motherhood hospital in his auto and on the way, the boy was dead and thereafter, his father took the body to St. John's hospital.
53. It is in the evidence of CW-16 that he conducted the inquest mahazar at St. John's hospital. Ex.P-5 the inquest mahazar is in support of the evidence of CW-16 in that regard.
54. So, it is clear that anybody neither took nor tried to get the first aid to the deceased in the nearby PHC. But, 25 Crl.A.No.2313/2018 it is important to note that admittedly, the wheels of the lorry ran over on the head of the deceased and there was severe bleeding and there would be no quarrel if it is said that normally in a PHC as the name itself Primary Heath Center, the treatment available is a primary treatment.
55. Thus, as there was severe bleeding head injury, the witnesses might thought of to take the injured boy to the hospital having facility to treat such a severe injury. Hence, no fault can be find with any of the witnesses who did not opt the nearby PHC to get first aid.
56. Moreover, as noted above, CW-2 has deposed that she was intimated that the deceased died at the spot itself and the same is supported by the final opinion as to the cause of death stated in Ex.P-10 i.e., "Death was due to head injury - Instantaneous death" i.e., the sudden death. The accused has not disputed the above stated cause of death.
57. Hence, it cannot be said that if the bleeding was prevented, the deceased might have been alive and the deceased might have been rescued by giving at least first aid treatment in the Government hospital which was just 26 Crl.A.No.2313/2018 in front of the accident spot and thus, the death of the deceased was not only due to injuries, but was due to not providing immediate treatment.
58. The other related grounds urged by the accused are that;
a) The trial Court has erred in not considering the fact that there is no mention in Ex.P-2 spot mahazar, Ex.P- 9 rough spot Sketch and Ex.P-11 the MV report regarding the blood stains on the spot or on the vehicles involved in the accident. Hence, it cannot be believed that the wheel of the tipper lorry has ran on the head of the deceased.
b) The trial Court has erred in not considering the fact that there are no details mentioned in Ex.P-10 the Post Mortem report at Part 1 and 2 and also in Ex.P-5 the inquest report at column 7 that the injuries sustained by the deceased were due to the running of wheel of the tipper lorry on his head.
59. The facts stated in the above grounds apparent on the face of the above documents. Admittedly, there is no mention in the spot mahazar at Ex.P-2 and the spot rough Sketch at Ex.P-9 as well as in the MV Report at Ex.P-11 27 Crl.A.No.2313/2018 regarding the blood stains on the spot or on the vehicles involved in the case.
60. It is also evident on Ex.P-10 that there are no details mentioned, i.e., the Post Mortem report at Part 1 and 2 and also in the inquest mahazar at Ex.P-5 at column 7 that the injuries sustained by the deceased was due to the running of wheel of the tipper lorry on his head.
61. But as noted above, the accused has not disputed the said fact. On the other hand, it is his defence that due to the manner of riding of the two wheeler by CW-2, there was skid of the vehicle, because of which, CW-2 fell on the left side and the deceased fell down on the right side at the left rear wheels of the lorry and the wheels ran over on the head of the deceased and it is also suggested to CW-4 that the accused did not observe the deceased felling down near the wheels of the lorry and moved the same.
62. Thus, it cannot be said that the non mentioning about the blood stains in the spot mahazar, spot rough sketch and the MV report respectively at Ex.P-2, 9 and 11, it cannot be believed that the wheels of the lorry has ran on the head of the deceased. Moreover, it is specifically 28 Crl.A.No.2313/2018 stated in the spot mahazar at Ex.P-2 that wheels of the lorry moved over the head of the deceased.
63. Even there are no details mentioned in the Post Mortem report at Ex.P-10 in Part 1 and 2 and also in the inquest mahazar at Ex.P-5 at column 7 that the injuries sustained by the deceased was due to the running of wheel of the lorry, it is specifically stated in the inquest mahazar at Ex.P-5 at column No.X that the wheels of the lorry moved over the head of the deceased and in the Post Mortem report at Ex.P-10 in Part 1, it is specifically stated that;
"Dead body is that of a male aged 7 years, ......
Hospital bandage seen over the head and the right knee. Blood stains present on both ears. There is deformity of the head with swelling behind the right ear region and flattening of the left side of skull......
......"
64. In part 2, it is stated that;
SCALP AND MEMBRANES BRAIN
SKULL
Scalp - described Lacerated at the Brain - Covered on reflections, fracture sites. fully with sub-
shows blood dural and sub-
extravasation all arachnoid
over the scalp hemorrhage and is
lacerated at
29 Crl.A.No.2313/2018
Skull - Fractured multiple places
and dislocated at with brain matter
multiple sites with missing at places.
blood
extravasation at
the fracture.
65. If the nature of head injuries mentioned in part 1 and 2 of the Post Mortem report at Ex.P-10 is taken note of, it clearly support the fact of the wheels of lorry running over the head of the deceased.
66. The one more ground urged by the accused is that the trial Court has erred in not considering the witnesses CWs-3 and 4 are planted witnesses as they are the known persons to CWs-1 and 2.
67. It is in the very first line of the deposition of CW-3 that he knows the deceased who is son of CW-2. On the other hand, it is in the very first line of the deposition of CW-4 that he came to know the deceased after the accident.
68. Even for the sake of arguments, it is accepted that CWs-3 and 4 are known persons to CWs-1 and 2, then also nothing is elicited in their cross examination to say that they are planted witnesses.
30 Crl.A.No.2313/2018
69. The other ground urged by the accused is that the trial Court has erred in not considering the fact that CW-2 Smt.Jyothi, the rider of the two wheeler was not having driving license and that PW-4 being the investigating officer has not supported the case of the prosecution.
70. It is in the cross examination of both CWs-1 and 2 that CW-2 had driving license and CW-2 has deposed that she did not give her driving license to the IO. It is also in the cross examination of CW-16 the IO that he has not collected the driving license of CW-2. Admittedly, the driving license of CW-2 is not on record.
71. Hence, even for the sake of arguments, if it is accepted that CW-2 has no valid driving license, then also, at best, it may be violation of law and to prove his defence of negligence on the part of CW-2, the accused is required to produce cogent and credible evidence and as noted above, he has failed to elicit any such evidence in the cross examination of the prosecution witnesses including CW-2 and admittedly, he did not let in his independent evidence if any in support of his defence.
31 Crl.A.No.2313/2018
72. So far the ground that PW-4 being the investigating officer has not supported the case of the prosecution, the trial Court record demonstrates that CW-4 the eye witness is examined as PW-4 and the IO CW-14 is examined as PW-5 and he has deposed supporting the case of the prosecution.
73. Hence, from the above discussions, it is clear that the accused has failed to establish his grounds in respect of the offences under Sections 279 and 304-A of IPC.
74. So far the other offences i.e., the offences under Sections 134(a) and 134(b) which are punishable under Section 187 of MV Act, there is no specific grounds urged by the accused.
75. With regard to the above offences, i.e., in respect of the offence under Section 134(a), as noted above,
a) It is in the evidence of CW-1 that he went to the spot and his son was not there. Hence, he went to Motherhood hospital, wherein his wife intimated him about the death of the deceased.
b) It is in the evidence of CW-2 that she took her son first to Carmelram hospital and therefrom for higher 32 Crl.A.No.2313/2018 treatment to Motherhood hospital, wherein she was intimated that the deceased died at the spot itself.
c) It is in the evidence of CW-3 that he took the deceased to Motherhood hospital in an auto and therefrom for higher treatment to St. John's hospital.
d) It is in the evidence of CW-4 that he was taking the injured boy to Motherhood hospital in his auto and on the way, the boy was dead and thereafter, his father took the body to St. John's hospital.
76. So, it is CWs-2 to 4 who took the injured to the hospitals. It is neither the case of the accused that he took the injured to the hospital, nor that he tried to take the injured to the hospital, nor that it was not practicable for him to take the injured to the hospital on account of fury or any other reasons beyond his control. Hence, there is nothing on record to discard the case of the prosecution with regard to the present offence.
77. So far the offence under Section 134(b), it is in the very beginning of the deposition of CW-16 the IO that on 03.08.2016 at 4:30 p.m., CW-1 came to the station and 33 Crl.A.No.2313/2018 gave the written complaint at Ex.P-1 and accordingly, he has registered the case.
78. It is neither the case of the accused that he gave the information, nor that the police did not receive his information, nor that the police refused to receive his information, nor that he was not in a position to give necessary information for the reasons beyond his control. Hence, there is nothing to disbelieve the case of the prosecution so far this offence also.
79. The last ground urged by the accused is that the impugned judgment of conviction is against the Law and all probabilities of the case and on that ground alone, the impugned judgment is liable to be set aside. As noted above, in support of his oral arguments, the counsel for the accused has relied on the decisions reported in;
a) (1980) 1 Supreme Court Cases 30 (between Syed Akban and State of Karnataka in Criminal Appeal No.456 of 1978 arising by Special Leave from the Judgment and Order dated March 22, 1978 of the Karnataka High Court in Criminal Revision Petition No.357 of 1977 decided on July 25, 1979 before their Lordships R.S.Sarkaria and 34 Crl.A.No.2313/2018 R.S.Pathak, JJ.) wherein he has drawn the attention of this Court to the observations of the Hon'ble Apex Court that;
' Criminal Trial - Appreciation of evidence - Res ipsa loquitur - .................. - Presumptions of fact and law - Distinction between - Burden of proving negligence beyond reasonable doubt in criminal cases - Negligence, meaning and ingredients of - Tort law - Penal Code, 1860 Sections 304-A, ...........
Penal Code, 1860 - Sections 304-A - On facts accident caused owing to misjudgment and not negligence
- ......
A woman accompanied by her 4 year old daughter came out of her village to cross the highway..... allowing the appeal, the Supreme Court Held:
The rule of res ipsa loquitur in reality belongs to the law of torts. ....
But in India the rules of evidence are ...... under which the general rule is that the burden of proving negligence as cause of the accident, lies on the party who alleges it. But that party can take advantage of presumptions which may be available to him, to lighten that burden. They are (i) permissive presumptions or presumptions of fact; (ii) rebuttable presumptions of law, and (iii) irrebuttable presumptions of law. Presumptions of fact are inferences of certain fact patterns drawn from the experience and observations of the common course of nature, the constitution of the human mind, the springs of human action, the usages and habits of society and ordinary course of human affairs. .......... There is no such discretion in case of presumptions of law. This distinction affects the burden of proof. While "presumptions of fact"
merely affect the 'burden of going forward with the evidence, presumptions of law'. However go so far as to shift the legal burden of proof so that, in the absence of evidence sufficient to rebut it on a balance of probability a verdict must be directed.35 Crl.A.No.2313/2018
In criminal cases, because of the rules of burden of proof, presumption of innocence and proof beyond reasonable doubt, respondent ipsa loquitur can only be an aid in the evaluation of evidence. "an application of the general method of inferring one or more facts in issue from circumstances proved in evidence." In this view, the maxim respondent ipsa loquitur does not require the raising of any presumption of law which must shift the onus on the defendant. It only when applied appropriately, allows the drawing of a permissive inference of fact, as distinguished from a mandatory presumption, properly so called, having regard to the totality of the circumstances and probabilities of the case. Res ipsa is only a means of estimating logical probability from the circumstances of the accident.
..............
However, this general mode of inferring a fact in issue from another circumstantial fact, is subject to all the principles, the satisfaction of which is essential before an accused can be convicted on the basis of circumstantial evidence alone. These are: Firstly, all the circumstances including the objective circumstances constituting the accident, from which the inference of guilt is to be drawn must be firmly established. Secondly, those circumstances must be of a determinative tendency pointing unerringly towards the guilt of the accused. Thirdly, the circumstances should make a chain so complete that they cannot reasonably raise any other hypothesis save that of the accused's guilt.
In criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not negligence merely based upon an error of judgment.
Even in an action in torts, .... The burden of proving the affirmative that the defendant was negligent and the accident occurred by his negligence, still remains with the 36 Crl.A.No.2313/2018 plaintiff; and in such a situation it will be for the Court to determine at the time of judgment whether the proven or undisputed facts, as a whole, disclose negligence.
............
The accident happened due to an error of judgment, and not negligence or want of driving skill on the part of the accused. An error of judgment of the kind such as the one in the instant case which comes to light only on post accident reflection, but could not be foreseen by the accused in that fragmented moment before the accident is not a sure index of negligence, particularly, when in taking and executing that decision the accused was acting with the knowledge and in the belief that this was the best course to be adopted in the circumstances for everyone's safety.
.........
25. From what has been said above, it is clear that even in an action in torts, if the defendant gives no rebutting evidence but a reasonable explanation, equally consistent with the presence as well as with the absence of negligence, the presumptions or inferences based on respondent ipsa loquitur can no longer be sustained. The burden of proving the affirmative, that the defendant was negligent and the accident occurred by his negligence, still remains with the plaintiff; and in such a situation it will be for the Court to determine at the time of judgment whether the proven or undisputed facts, as a whole, disclose negligence. (see Ballards case (supra), The Kite, Per Evatt J.in avis V.Bunn, Mummary V Irvings Proprietary Ltd. (Australia) Winnipeg Electrical Company Ltd. Vs Jacob Geat See also: Brown Vs Rolls Royee Ltd Hendersons Vs Henry E Jenkins and sons.
26. From the above conspectus, two lines of approach in regard to the application and effect of the maxim respondent ipsa loquitur are discernible. According to the first, where the maxim applies, it operates as an exception to the general rule that the burden of proof of the alleged negligence is, in the first instance, on the plaintiff. In this view, if the nature of an accident is such that the mere happening of it is evidence of negligence, such as, where a 37 Crl.A.No.2313/2018 motor vehicle without apparent cause, leaves the highway, or overturns or in fair visibility runs into an obstacle or brushes the branches of an overhanging tree, resulting in injury or where there is a duty on the defendant to exercise care, and the circumstances in which the injury complained of happened are such that with the exercise of the requisite care no risk would in the ordinary course ensue, the burden shifts or is in the first instance on the defendant to disprove his liability. Such shifting or casting of the burden on the defendant is on account of a presumption of law and fact arising against the defendant from the constituent circumstances of the accident itself, which bespeak negligence of the defendant. This is the view taken in several decisions of English Courts.
.........
30. Such simplified .................... Firstly, all the circumstances, including the objective circumstances constituting the accident, from which the inference of guilt is to be drawn, must be firmly established. Secondly, those circumstances must be of a determinative tendency pointing unerringly towards the guilt of the accused. Thirdly, the circumstances shown make a chain so complete that they cannot reasonably raise any other hypothesis save that of the accused's guilt. That is to say, they should be incompatible with his innocence and inferentially exclude all reasonable doubt about his guilt.
31. Let us now see .............. The primary reason given by the courts below for invoking the maxim is that the appellant had swerved the bus to the extreme right side of the road, where the unfortunate child who came running from the left side of the road, struck against the bus and was fatally knocked down by its left front wheel.
............
33. The picture of the occurrence ......... the testimony of the eye witnesses is that when the mother was about to cross the road, she firmly told the child, who was following her at some distance, not to follow her, but to return home. The child it seems, stopped for a moment in the road, probably on its left side, while the mother went ahead, crossed the road and descended into the deep ditch 38 Crl.A.No.2313/2018 on the other side from where, according to her own admission, she could not see the bus approaching the scene of occurrence. The child was, it seems for the moment undecided as to whether it should go back or go forward after the mother, and then ran or was poised to run towards the right of the road. It was just at this juncture the accused, who according to the passenger witness was driving the vehicle slowly suddenly saw the child a short distance ahead of the bus, in the road. In that situation, it was extremely difficult, even for a cautious and skilled driver in the position of the accused, to foreseen and judge with accuracy as to whether the child would go back to the left or shoot forward to the right side of the road. In that split second he had to decide about the better course to be adopted to avoid a collision with the child. Whether it was better to swerve the vehicle to the extreme left or to the the extreme right side of the road, that was the question for his instant decision. It was in evidence that the metaled road there was hardly 12 feet in width, and there were very deep ditches on both sides of the road. Since the child was at that critical moment, initially in the road more towards the left side, the accused might have thought that if he tried to run past the child from the extreme left, .......... steer the vehicle to the extreme right side, and thus pass and dodge the child by a parabolic manoeuvre. But there was a limit to it. He could not, without incurring far greater risk of harm to many in the bus, take the vehicle off course further to the right, beyond the point he did. .......
34. It was thus evident that the accident happened due to an error of judgment, and not negligence or want of driving skill on the part of the accused. An error of judgment of the kind, such as the one in the instant case which comes to light only on post accident reflection, but could not be foreseen by the accused in that fragmented moment before the accident, is not a sure index of negligence, particularly when in taking and executing that decision the accused was acting with the knowledge and in the belief that this was the best course to be adopted in the circumstances for everyone's safety.39 Crl.A.No.2313/2018
........
36. Though ... the observations extracted above were made in the context of an allegation of willfull misconduct, yet the reasoning employed and the principle enunciated, particularly in the last sentence which has now been underlined are applicable to the facts of the case before us. The 'willful misconduct' or 'willful default' is issue in Horabin case was not very different from a charge of negligence, because, negligence has 'two meanings in the law of tort: it may mean either a mental element which is to be inferred from one of the modes in which consists of breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff.
37. As in Horabin, here also, the accused had swerved the vehicle to the extreme right side of the road, not only to avoid collision with the ill fated child but also to avoid the risk of the vehicle falling into deep ditches on either side of the road, and the resultant possibility of far greater harm to the passengers in the bus.
38. After going through the English translation of the evidence of the witnesses, furnished by the counsel, and closely analyzing the happening and its circumstances in the light of arguments advanced on both sides, we are of the opinion that the prosecution had failed to prove beyond reasonable doubt that the appellant had caused the death of the child by negligent or rash driving. All happened in fraction of a moment; and even if the worst was assumed against the appellant, the highest that could be said was that a misjudgment on his part too slight to be branded as culpable negligence, could well account for the accident resulting in the death of the child.
39. These, then, are the reasons which we give in support of our order by which we had allowed Syed Akbar's appeal and acquitted him.
b) 2002 Crl.L.J. 348 (between State of Rajasthan Vs Nauratan Mal. in Criminal Appeal No.81 of 1986 decided 40 Crl.A.No.2313/2018 on 05.09.2001 before his Lordship Sunil Kumar Garag, J.) wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Rajastan that;
"(A) Penal Code (45 of 1860) S.279 - Rash driving or riding on public way - Negligence - Proof - Complainant stating that Roadways Bus being rashly driven by accused struck against his cow resulting into her death - Absence of evidence to show that vehicle was being driven rashly or negligently - Site plan showing that incident took place on middle of road - Possibility that cow might have suddenly appeared on road and struck against bus could not be ruled out - No offence under S.279 is made out against accused.
(B) Penal Code (45 of 1860) S.279 - Rash driving or riding on public way - Proof - Complainant stating that vehicle in question was at high speed - However, speed cannot be sole factor for determining negligent driving unless proved by cogent evidence that vehicle was being driven rashly or negligently.
.............
(i) On 30-1-83 P.W.1 Dagla Ram lodged a written report Ex.P1 with the police station parbatsar stating that Roadways Bus No.RSG 6009 which was being driven by accused respondent at about 12-30 noon which was proceeding towards Parbaster, struck against the cow of P.W.1 Dagla Ram resulting into fractures and later on the cow died. It is also stated in the report Ex.P.1 that this incident was witnessed by PW-3 Mangi Lal, PW4 Govinda Ram and PW-2 Bodu Ram.
.......
7. After conclusion of the trial ..... it has not been proved by the prosecution that the bus in question was being driven by the accused respondent rashly or negligently and merely that incident had taken place, it would not be interfered that the bus was being driven rashly and negligently and therefore, the learned trial 41 Crl.A.No.2313/2018 Magistrate found both the charges not proved against the accused respondents and acquitted him.
......
10. In my opinion, the findings of learned Magistrate on the point that the vehicle was not being driven rashly or negligently are liable to be confirmed one as they are based on correct appreciating of evidence.
.......
12. in this case by simply stating that the vehicle was being driven negligently is not sufficient to prove this fact. Apart from this, site plan Ex.P-6 shows that the incident took place on the middle of the road and, therefore, it may be possible that cow might have suddenly appeared on the road and struck against the bus. Hence, no case for offence under Section 279 IPC is fond proved against the accused respondent and the findings of the learned Magistrate in this respect are correct one.
........
For the reasons mentioned above, the present State appeal is dismissed after confirming the judgment and order dated 29.10.85 passed by the learned Civil Judge and Addl.Chief Judicial Magistrate, Parbastar in Cr.Case No.285/1985".
80. There is no quarrel with regard to the proposition of law in the principles rendered in the above decisions. But, as noted above, the accused has failed to establish his grounds in support of the present appeal and thus, he has also failed to establish this ground that the impugned judgment is against to the law and the probabilities of the case.
81. In the course of arguments, relying on the evidence of CW-14 the IO that he has not produced the 42 Crl.A.No.2313/2018 photos of the spot he has taken at the time of conducting the spot mahazar at Ex.P-2, the counsel for the accused has argued that the same is fatal to the case of the prosecution.
82. But, as noted above, there is no dispute with regard to the topography of the spot. Of course, as noted above, there is no mention with regard to the place at which the vehicles were after the accident and if the photos of the spot were produced before the Court, they would have helped to see the same.
83. But, it is important to note that the photos themselves would not be the conclusive proof of evidence in that regard. Hence, even it is true that the production of the photos of the spot would have given clear picture of the spot, it cannot be said that non production of photos of the spot is fatal to the case of the prosecution as the prosecution has let in the evidence in its support beyond all the reasonable doubts as observed above.
84. Therefore, from the above discussions, it is clear that the accused has failed to establish his grounds in support of his present appeal and thus, point No.1 is 43 Crl.A.No.2313/2018 answered in negative and accordingly, there is no need for intervention by this Court to the impugned judgment. Hence, point No.2 is also answered in negative.
85. POINT No.3:- For the reasons discussed above, this Court proceeds to pass following order.
ORDER The Criminal Appeal filed by the appellant under Section 374(3) of Cr.P.C. is hereby dismissed.
Consequently, the judgment of conviction and sentence passed by MMTC-VI, Bengaluru, in CC.No.3906/2017 dated 30.10.2018 is hereby confirmed.
Send back the TCR along with the copy of this judgment forthwith to the trial Court.
(Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 3rd day of October, 2020).
(K. KATHYAYANI ), LXVI Addl.CC & SJ, Bangalore.
44 Crl.A.No.2313/2018The counsel for appellant is The order is pronounced in the open Court (vide separate Judgment).
ORDER The Criminal Appeal filed by the appellant under Section 374(3) of Cr.P.C. is hereby dismissed.
Consequently, the
judgment of conviction and
sentence passed by MMTC-VI,
Bengaluru, in CC.No.3906/2017
dated 30.10.2018 is hereby
confirmed.
45 Crl.A.No.2313/2018
Send back the TCR along
with the copy of this judgment
forthwith to the trial Court.
LXVI Addl.CC & SJ,
Bangalore.