Bangalore District Court
State By Kamakshipalya Traffic Police ... vs Ziyaulla S/O Allabakash on 16 February, 2021
IN THE COURT OF THE METROPOLITAN MAGISTRATE TRAFFIC
COURT- II, BENGALURU.
DATED THIS THE 16TH DAY OF FEBRUARY 2021
Present: Smt. Rekha. H.C.
B.A.LLB
Metropolitan Magistrate,
Traffic Court-II, Bengaluru.
CC No. 225/2008
2
Complainant: State by Kamakshipalya Traffic Police Station,
Bangalore.
(Represented by: Sr. APP)
V/s
Accused:- 1. Ziyaulla S/o Allabakash, 23 Yrs, R/at No. 27/3,
Magadi Road, Police Quarters, Bengaluru-23.
Rider of Motor cycle bearing Reg. no. KA 02 EK 4006
(Represented by Sri. M.A.B. Adv.)
1. Date of commission of offence: 11.8.2006
2. Offences alleged against accused U/sec. 304-A of IPC
3. Date of recording of evidence: 28.1.2010
4. Date of Judgment: 16.2.2021
JUDGMENT
The Inspector of Police, Kamakshipalya Traffic P.S. has filed charge sheet against the accused for the offences punishable U/sec. 279, 338 of IPC and 146 r/w 196 of IMV Act as on 30.11.2006. On death of the injured, Investigating Officer on behalf of prosecution took further investigation and on 21.3.2007 has filed supplementary charge sheet of the offence punishable U/sec.304-A of IPC it has been taken cognizance on dtd:
9.1.2008.2 CC 225/2008
2. The brief case of the prosecution is that;
On 11.8.2006 at about 1.45 p.m., within the jurisdiction of Kamakshipalya Traffic police station, the accused being the rider of Motor cycle bearing Reg. no. KA 02 EK 4006 rode the same on West of Chord road near Gowri Shankar Kalyana Mantap in a rash and negligent manner so as to endanger the human life and dashed against pedestrian/CW-6 who was crossing the road from west towards east direction. Due to the impact, said pedestrian/CW-6 fell down and sustained grievous injuries. At the time of accident, the accused did not insured the offending vehicle. Based on the first information statement given by CW-1, the case came to be registered against the accused in Cr. No. 107/2016. The I.O. took up the investigation, visited the spot, drawn the spot mahazar and recorded the statement of witnesses. The I.O. after obtaining the Wound certificate and other documents and on completion of investigation has filed charge sheet against the accused for the offences punishable U/sec. 279, 338 of IPC and 146 r/w case came to be registered against accused for the 196 of IMV Act.
3. Upon taking cognizance, offences punishable U/sec. 279, 338 of IPC and 146 r/w 196 of IMV Act and filed charge sheet on 30.11.2006. In the case on hand, it is pertinent to note that on filing this charge sheet summons was issued to the accused who appeared through his counsel and the accused pleaded guilty for the alleged offences punishable U/sec. 279, 338 of 3 CC 225/2008 IPC and 146 r/w 196 of IMV Act as on 30.11.2006 in CC No. 2808/2006.
4. Thereafter, in the same Cr no. 107/06 once again the Investigating Officer for closure of the case took further investigation and sumoto conducted the investigation on collecting the certain documents and filed charge sheet on 21.3.2007 against same accused for the offence punishable U/sec. 304-A of IPC. Once again second CC no. 225/2008 is registered on 2.1.2008 against the accused and summons were issued to the accused. The accused appeared through his counsel before this court and got released on personal bond of Rs.5,000/- with one surety for likesum. The accused represented by his counsel and copies of prosecution papers are duly supplied as per Sec. 207 of Cr.P.C.
5. Plea came to be framed for the offence punishable U/sec. 304-A of IPC for which accused pleaded not guilty claimed to be tried.
6. During the course of trial, the prosecution has examined PWs-1 to 11 and got exhibited documents as per Ex.P.1 to Ex.P.12. On completion of prosecution side evidence, the statement of accused U/sec. 313 of Cr.P.C. was recorded and the accused denied all the incriminating evidence appearing against him. No defence evidence led.
7. Heard arguments on both sides.
8. The points that arise for my consideration are as follows:
4 CC 225/20081. Whether prosecution proves beyond all reasonable doubt that on 11.8.2006 at about 1.45 p.m., the accused being the rider of Motor cycle bearing Reg. no. KA 02 EK 4006 rode the same on West of Chord road near Gowri Shankar Kalyana Mantap in a rash and negligent manner so as to endanger the human life. Thereby the accused has committed the offences punishable U/sec. 279 of IPC ?
2. Whether prosecution proves beyond all reasonable doubt that on the above date, time, and place, the accused being the rider of Motor cycle bearing Reg. no. KA 02 EK 4006 dashed against pedestrian/CW-6 who was crossing the road from west towards east direction and said pedestrian/CW-6 fell down and sustained grievous injuries. Thereby the accused has committed an offence punishable U/sec. 338 of IPC?
3. Whether prosecution proves beyond all reasonable doubt that on the above date, time, and place, the accused being the rider of Motor cycle bearing Reg. no. KA 02 EK 4006 and caused death of pedestrian/Jayanna and thereby the accused has committed an offence punishable U/sec. 304-A of IPC?
4. Whether prosecution proves beyond all reasonable doubt that at the time of 5 CC 225/2008 accident, at the time of accident, the vehicle was not insured and thereby the accused committed an offence punishable U/sec. 146 r/w 196 of IMV Act?
5. What Order?
9. Now, my findings to the above points are as follows:
Point Nos.1, 2 and 4 : Pleaded guilty Point No.3: Negative Point No. 5: As per order, for the following:
REASONS
10. Point Nos. 1, 2 and 4 :- It is the specific case of the prosecution that on 11.8.2006 at about 1.45 p.m., within the jurisdiction of Kamakshipalya Traffic police station, the accused being the rider of Motor cycle bearing Reg. no. KA 02 EK 4006 rode the same on West of Chord road near Gowri Shankar Kalyana Mantap in a rash and negligent manner so as to endanger the human life and dashed against pedestrian/CW-6 who was crossing the road from west towards east direction. Due to the impact, said pedestrian/CW-6 fell down and sustained grievous injuries. At the time of accident, the accused did not insure the offending vehicle. The I.O. on completion of investigation has filed charge sheet against the accused for the offences punishable U/sec. 279, 338 of IPC and 146 r/w case came to be registered against accused for the 196 of IMV Act.
6 CC 225/200811. In the case on hand, it is pertinent to note that on filing this charge sheet summons was issued to the accused who appeared through his counsel and the accused pleaded guilty for the alleged offences punishable U/sec. 279, 338 of IPC and 146 r/w 196 of IMV Act as on 30.11.2006 in CC No. 2808/2006. Accordingly, I answer point nos. 1, 2 and 4 in the affirmative.
12. Point No.3: To prove its case, the prosecution examined PWs. 1 to 11 and marked Exs.P.1 to 12 with sub marking.
13. CW-1 Siddalingappa is examined as PW-1 who is complainant. He deposed that on 11.8.2006 he came to know about the accident to M. Jayanna by the two wheeler bearing Reg. no. KA 02 EK 4006 who was moving from west towards east and two wheeler moving from south towards north direction and he sustained injuries to his trunk and head and was shifted to Gayathri hospital and he lodged complaint as per Ex.P.1. PW-1 further states that after three months the injured was succumbed. The accident had occurred due to fault of accused and accused before court was the rider of offending vehicle.
On careful perusal of evidence of PW-1, he was not stated time of alleged accident.
14. CW-2 Palanethraiah is examined as PW-2 who is eye witness and mahazar witness deposed that on 11.8.2006 at about 1.45 p.m. infront of Gowri Shankar 7 CC 225/2008 Kalyana Mantap the victim was crossing from west towards east, at that time one two wheeler bearing Reg. no. KA 02 EK 4006 came in high speed from north towards south direction struck the victim. Due to the impact, said victim suffered pressed wound to head and all over his body and was shifted to Gayathri hospital from there to Narayana Hrudayalaya and Siddaramaiah hospital, Tumkur and he took treatment for 8 months and then succumbed. The accident had happened due to the fault of two wheeler rider and on said complaint the police drawn mahazar as per Ex.P.2 in presence of said witness.
In the cross-examination PW-2 stated that there was under bridge work in progress on at some distance to the spot.
15. CW-14 Dr. P.K. Gangadhar is examined as PW-3 states that on 29.9.2006 one Jayanna, aged; 70 yrs who brought with the history of road traffic accident and he treated up to 20.3.2007. He sent death memo as per Ex.P.3.
In the cross-examination of PW-3 admitted that the MLC has been registered in respect of road traffic accident, but the hospital authorities were not sent any information regarding the accident. More over, he admitted that he did not received any previous case history of the patient regarding road traffic accident.
16. CW-4 J. Mohan is examined as PW-4 states that on 11.8.2006 he was on duty received complaint as per 8 CC 225/2008 Ex.P.1. On its basis he registered the case in Cr.no.106/06. On the same day, he visited the spot and conducted mahazar and prepared rough sketch as per Exs.P.2 & 5 and recorded the statements of CWs. 2 & 3. The patient was shifted from Gayathri hospital to Narayana hospital. On 29.9.2006 the patient was discharged from hospital and he obtained Wound certificate as per Ex.P.6 and filed the charge sheet against the accused and case came to be closed on 30.11.2006. PW-4 further states that once again received the death intimation on 20.3.2007. He visited the Thilak nagar and received death memo and conducted inquest mahazar as per Ex.P.7 and also recorded statements of CWs. 2 & 5.
17. In the cross-examination Investigating Officer also admitted that he received MLC pertaining to the patient. But he did not register any case against the accused on the basis of MLC. Further admitted he is not took any prior permission from the court to reinvestigation the case. Further he admitted that after the treatment from Narayana hospital the injured had recovered from the injuries.
18. CW-7 Jyanamurthy and CW-6 Chidanada were examined as PWs-5 and 6 who were inquest mahazar witnesses of this case. They were deposed that they came to know that Jayanna succumbed at Siddaramanna hospital, Tumkur. That on 20.3.2007 at about 9.30 p.m. they visited Government hospital, Tumkur and conducted inquest mahazar as per Ex.P.7.
9 CC 225/200819. CW-5 Rajashekaraiah examined as PW-7 who is son of deceased. He deposed that deceased Jayanna is his father. PW-7 deposed that on 11.8.2006 infront of Gowrishankar Kalyana Mantap while his father was crossing the road, the accident had happened by two wheeler and his father succumbed. After the accident his father was shifted to Gayathri nursing home from there to Narayana Hrudayalaya and Siddaramanna hospital, Tumkur. That on 20.3.2007 his father did not respond to the treatment and succumbed at Siddaramanna hospital.
20. CW-4 Kayam Begh examined as PW-8 who is eye witness of this case deposed that about 10 yrs back, he was near his house and police came and took his signature at blank paper. He donot know and did not observed the accident. The accused before court was far relative of him and police gave 133 notice and he obtained reply.
Having turned hostile to the case of the prosecution, the learned Sr. APP cross examined PW-8 in detail, but nothing worth is elicited from the mouth of PW-8 to support the case of the prosecution.
21. CW-10 Dr. Thimmappa Hegde is examined as PW-9 who gave treatment to the injured deposed that on 12.8.2006 one Jayanna brought with the history of road traffic accident as in patient. At the time of admission, the injured was unconscious and he was undergone surgery of brain and on 29.9.2006 he was discharged from the hospital and at the time of discharge the injured 10 CC 225/2008 was applied two pipes for breathing and food and he gave Wound certificate as per Ex.P.10. At the time of discharge the injured was partly recovered.
On perusal of evidence of PW-9 the injured was admitted on 12.8.2006, after the treatment he was discharged on 29.9.2016 at the time of discharge the injured was partly recovered.
22. CW-9 Dr. Kiran is examined as PW-10 who gave first aid to the injured deposed that on 11.9.2006 at about 1.30 p.m. one Jayanna who brought with the history of road traffic accident and he examined him and issued Wound certificate as per Ex.P.11 and also shifted the injured to another hospital for further treatment.
23. CW-11 Puttaramu examined as PW-11 who is eye witness and spot mahazar witness of this case who turned hostile to the prosecution case. He deposed that he along with deceased Jayanna went to marriage at Padmavathi Kalyana Mantap on 2006 August. He came to know about the accident to Jayanna while he was crossing the road and injured was shifted to Gayathri hospital. He don't know about the accident and he also did not saw the accident. Further, he signed the mahazar with the request of police when he went to police station, he do not know contents of Ex.P.2. He did not gave any statement pertaining to the accident. Even though Sr. learned APP cross examined the witness, but this witness has not supported the case of prosecution.
11 CC 225/200824. The learned counsel for the accused argued that there is no evidence to show rash or negligent riding on the part of the accused. More over already pleaded guilty. Further, he argued that the material and evidence available on record is not sufficient to believe the case of prosecution beyond reasonable doubt. Therefore, he prayed to acquit the accused.
25. I have carefully gone through the evidence of PWs. 1 to 11. PW-1 is none other than eye witness of this case, but he does not stated time of the accident. Further, the evidence of PW-2 shows that there was under bridge work going on some distance of the spot. It is presumes that no one vehicle cannot move fast and high speed. The evidence of PW.3 shows that the injured was already aged about and 70 yrs and he was suffering health issues and also this witness stated that the patient bed rest for all most six months his health deteriorated.
So far as on perusal of evidence of PW-4 Investigating Officer admitted that after filing the charge sheet the Investigating Officer has filed additional charge sheet against the accused u/sec. 304-A of IPC. But, he did not obtained prior permission from the court to further investigation and to file additional charge sheet against the accused. More over he did not filed any case against the accused on the basis of MLC from hospital authorities.
12 CC 225/200826. The Investigating Officer after closure of the case after more than six months, he had once again reopen the case is obliged. More over, due to procedure provided in Cr.P.C has not been filed. The injured aged about 70 yrs on the date of alleged accident itself. The doctor in his examination-in-chief itself has deposed that due to prolong bed rest the injured health complication. The death is due to prolong bed rest seems reasonable, but not due to impact at the time of accident. It is fatal to the case of prosecution to prove the guilt of accused for the offence punishable U/sec. 304-A of IPC.
27. Further, PWs. 7, 8 and 11 are eye witness and mahazar witnesses of this case, but they turned hostile and they are not supported to the case of prosecution. It is also one of default to prove the guilt against the accused. Further on perusal of evidence of PWs.9 & 10 who were treated to the injured person. Admittedly, as per evidence of PW-9 the injured person was discharged from their hospital on 29.9.2006. Thereafter the injured was succumbed on 20.3.2007. After lapse of 6 months the injured was died. In the mean while the injured was took treatment at Tumkur Government hospital where he died. But, the prosecution failed to examine the said hospital authorities to prove the guilt of accused and not produced any medical documents. Because it is very necessary for prove the case of prosecution, but, the prosecution utterly failed to prove their burden.
28. In the case on hand the accused being the driver of the offending vehicle bearing Reg. no. KA 02 EK 13 CC 225/2008 4006 is not in dispute. Accordingly, the preliminary aspect as to identification of accused once again not taken for discussion. The accused is admitted his offence punishable U/sec. 279, 338 of IPC and 146 r/w 196 of IMV Act and pleaded guilty for the said offences. But, the injured was succumbed after lapse of 7 months. Hence, the prosecution failed to prove that the injured was succumbed to the injuries sustained by the accident which was caused by the accused.
29. Sec. 279 of IPC deals with rash and negligent driving any vehicle or riding on a public way in 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/sec. 279 of IPC, it must be established that the accused was driving the vehicle on a public way in a rash and negligent manner to endanger human life or to likely cause hurt or injury to any other person. For the purpose of section 279 of IPC, 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 Sec. 279 of IPC are; i) Rash and negligent driving or riding on public way. (ii) The act must be such as to endanger human life or likely to cause hurt or injury to any person.
30. For an offence punishable U/sec. 304-A of IPC the point to be established is that the act of accused was responsible for resulting in the death and such act of accused was rash and negligent although it did not 14 CC 225/2008 amount to culpable homicide. To establish either of Sec. 279 or 304-A of IPC, rash and negligent has to be established, but only distinction is that in Sec. 279 rash and negligent act relates to the manner of driving or riding on a public way, while offence punishable U/sec. 304-A of IPC extends to any rash and negligent act falling short of culpable homicide. As indicated above, rashness or negligence to be established must be more than an error of judgment. Distinction between rashness and negligence is that negligence connotes want of proper care while rashness conveys an idea of reckless doing of an act without consideration of any consequences.
31. I have carefully gone through the charge sheet materials and also evidence made available in the file. The witnesses have not stated regarding the number of vehicle involved in the alleged accident. Further, the witnesses have not stated rash and negligent act on the part of the accused on the date of alleged incident. Therefore, in this circumstances of the case, the case of prosecution regarding rash and negligent act and also regarding involvement of the vehicle of accused could not be made out beyond reasonable doubt.
The citation reported in AIR
2009 Supreme Court 823 (From
Punjab and Haryana), Dr. Arijit
Pasayat. C.K. Thakker and D.K. Jain.
JJ Criminal Appeal No. 199 of 2004, Dtd: 15.10.2008, State of Haryana V/s Sher Singh. Penal code (45 of 15 CC 225/2008 1860-Sec. 304-A, 279-Death due to rash and negligent driving-Deceased fatally hit by bus-Alleged to the driven by accused-Eye witness turning hostile-Dying declaration made by deceased stating the bus was driven rashly-Name of the accused however not mentioned-No other material to show that accused was driving the bus at the time of accident-Accused liable to be acquitted.
31. The material witnesses to the case of prosecution have not supported the case. 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. There is a doubt as to whether the injured died. The prosecution failed to prove that the injured was succumbed to the injuries sustained by the accident which was caused by the accused. Therefore, in the circumstances of the case, the prosecution has failed to prove the guilt of accused beyond all reasonable doubt. Accordingly, the point no.3 under consideration are answered in the Negative.
32. Point No.5: In view of 'Negative' findings on the above points, the accused is entitled for acquittal on the ground of doubt benefit. Therefore, I proceed to pass the following:-
16 CC 225/2008ORDER Acting U/sec. 255(1) of Criminal procedure code, the accused is hereby acquitted of the offences alleged against him punishable U/sec. 304-A of IPC.
Bail bonds of accused and surety bonds shall stand cancelled after completion of appeal period.
The interim custody of BMTC bus bearing Reg. no. KA 01 F 9579 is hereby made absolute.
(Dictated to the stenographer, directly on the computer, typed by her, corrected and then pronounced by me in the open court on this the 12th day of February 2021).
(Rekha. H.C.) M.M.T.C-II, Bengaluru.
ANNEXURE List of witnesses examined for Prosecution:-
PW-1 Siddalingappa PW-2 Palanethraiah PW-3 Dr.P.K. Gangadhar PW-4 J. Mohan PW-5 Jyanamurthy PW-6 Chidananda PW-7 Rajashekaraiah PW-8 Kayam Begh PW-9 Dr. Thimmappa Hegde PW-10 Dr. Kiran PW-11 Puttaramu
List of documents marked for Prosecution:
Ex.P.1: Complaint
17 CC 225/2008
Ex.P.2 Spot mahazar
Ex.P.3 Death memo
Ex.P.4 FIR
Ex.P. 5 Rough sketch
Ex.P. 6 Wound certificate
Ex.P.7 Inquest mahazar
Ex.P.8 Copy of 133 notice
Ex.P.9 Reply
Ex.P.10 Discharge summary
Ex.P.11 Wound certificate
Ex.P.12 Statement of CW-3
M.M.T.C-II, Bengaluru.