Bangalore District Court
Indiranagar Ps vs Nithin Nagarajan And Another on 29 November, 2024
KABCOA0035272016
IN THE COURT OF THE XIII ADDL. CITY CIVIL AND
SESSIONS JUDGE MAYOHALL UNIT, BENGALURU
(CCH-22)
PRESENT:
Sri. S. Gopalappa, B.A.L., LL.B.,
XIII Addl. City Civil and Sessions Judge,
Bengaluru
Dated this the 29th day of November, 2024
SESSION CASE No.898/2019
COMPLAINANT:- State by - Indiranagara Traffic Police
Station, Bengaluru.
(By Learned Public Prosecutor)
- Vs -
ACCUSED:- 1) Nitin Nagarajan,
S/o Nagarajan A,
Aged about 22 years,
R/at No.C2, 2nd Floor,
VV Home, 1st Cross,
Nagawara Palya Main Road,
Benniganahalli,
Bengaluru-93.
2) Gerard Vimal, S/o M. Vincent,
Aged about 29 years,
R/at No.8/1, 13th G Street,
Jogupalya, Halasoor,
Bengaluru-08.
(Rep. By - Sri. V.S.B, - Advocate)
2 SC.No.898/2019
Judgment
JUDGMENT
Indiranagara Police have filed charge sheet, against accused alleging the offence punishable U/s 304(2) of IPC and U/s 185, 146 r/w Sec.196 of M.V Act.
2. The brief facts of prosecution case are as follows:-
That on 13.06.2016 at 1.30 a.m in the early morning Accused No.1 with the influence of alcohol knowing fully well that if he ride the bike in public place, it will cause danger to human life, on old madras road - Siddugunta Palya Junction with pillion rider Ms. Shwetha D'souza, D/o.
Franc D'souza aged 22 years, from KR Puram side East to West rode the motorbike No. KA 03 HU 5973 in high speed in rash and negligent manner and dashed against the left side footpath. Thereafter, lost control and dashed against signal pole, fell on the road alongwith motorcycle, the pillion rider jumped and fell on the road about 10 ft away, sustained head injury and injuries on other parts of the body, lost conscious, Accused No.1 also sustained injuries.3 SC.No.898/2019
Judgment The pillion rider Ms. Swetha D'souza died on the way to Hospital. Accused No.2 though the insurance policy was not in force handed over the motorbike to Accused No.1 in order to ride the same in public place and thus the Accused persons have committed the alleged offences.
3. On receipt of the charge-sheet by the Committal Court, the Committal Court secured the presence of accused and as alleged offence U/s 304(2) of IPC is exclusively triable by Sessions Court, the Committal Court committed the case to Hon'ble Principle City Civil and Sessions Judge, Bengaluru, after complying mandatory requirements. Whereas Hon'ble Principal City Civil and Sessions Judge took the cognizance of the offence and registered the case as SC.No.898/2019 and made over to this Court for disposal in accordance with law.
4. As accused has been on bail, summons has been issued to them and they made appearance before this Court through their counsel.
4 SC.No.898/2019
Judgment
5. Thereafter, heard both learned PP and counsel for the accused regarding framing of charges and as there is sufficient material to frame charge, charge has been framed and read over and explained to accused in kannada language, which is known to them, whereas they pleaded not guilty and claimed for trial of said charge.
6. In order to prove the guilt of the accused, out of 19 charge sheeted witnesses prosecution has examined as many as 10 witnesses as P.Ws.1 to 10 and got documents marked Ex.P1 to 15. The learned PP has given up C.Ws.2 to 7, 10, 11 & 16 since their evidence is repetition of evidence of other witnesses.
7. The statement of accused as specified u/s 313 of Cr.P.C has been recorded, the accused have denied the incriminating circumstances found against them, but they have not chosen to adduce any defence evidence.
8. I have heard both learned PP and counsel for accused.
5 SC.No.898/2019
Judgment
9. Perused the records, after perusal, the points arise for my consideration are:
Point No.1) Whether the prosecution proves beyond all reasonable doubt that on 13/06/2016 at 01.30 a.m. in the early morning accused No.1 taking the deceased- Shwetha D'souza daughter of Franc D'Souza in motorbike bearing No. KA-03/HU-5973 as a pillion rider were going in Old Madras Road, Suddagunte Palya Junction within the limits of Indiranagar Traffic P.S from K.R. Puram to Ulsoor and at that time accused No.1 was riding the motorbike rashly under the influence of alcohol accused No.1 rode in rash and negligent manner and in drunken condition hit the left side foot path and then unable to control the motorbike, the motorbike hit the traffic signal pole as a result of which motorbike crashed to the ground and the deceased sustained severe head injuries and succumbed to death and thereby accused has committed the offence punishable under Section 304(2) of IPC?
Point No.2) Whether the prosecution proves beyond all reasonable doubt that, on aforestated date, time and place accused No.1 rode the motorbike in drunken condition and thereby accused No.1 has committed the offence punishable U/s 185 of M.V. Act?
Point No.3) Whether the prosecution proves beyond all reasonable doubt that, on 6 SC.No.898/2019 Judgment aforestated date, time and place accused No.1 rode the motorbike being aware that it does not have insurance policy has committed the offence punishable U/s 146 R/w 196 of M.V. Act?
Point No.4) Whether the prosecution proves beyond all reasonable doubt that, the accused No.2 being registered owner of the said motorbike and having permitted the accused No.1 to ride the motorbike on public road without insurance policy has committed the offence punishable U/s 146 R/w 196 of M.V. Act?
Point No.5) What order?
10. My findings on the above points are as follows:
Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : In the Affirmative Point No.4 : In the Affirmative Point No.5 : As per final Order, for the following:
REASONS
11. Points No.1 to 4 :- These points are taken up together for discussion, as they are interrelated to each other, to avoid repetition of facts.
7 SC.No.898/2019
Judgment PW.1 is the Complainant, PW.2 is an eye witness, PW.3 is mother of the deceased. PW.4 is Doctor who has conducted the alcohol test on Accused No.1, PW.7 is the Doctor who has examined the injured, PW.8 is the Doctor who conducted the Post Mortem on the deceased. PW.10 is Motor Vehicle Inspector, PW.5, 6 & 9 are the Investigating Officers.
12. PW.1 has deposed that, on 13/06/2016, early morning at about 3.30 a.m he received phone call from CMH Hospital saying that, one girl by name Shwetha who has distant acquaintance of him has met with an accident and asked him to come to Hospital and immediately he started from Vijaynagar where he was residing and went to CMH Hospital, Indiranagar, Bengaluru. He went to casualty section of the Hospital. The Hospital authorities informed him that, Shwetha met with an accident at about 1.30 a.m. at Sudhagunte Palya Junction and when she was brought to the Hospital she was declared dead. He was informed that, 8 SC.No.898/2019 Judgment at the time of accident Shwetha was Pillion rider of two wheeler which was being rode by one Nithin.
13. Further PW.1 has deposed that, he was also informed that, accident occurred due to the vehicle falling on the left side footpath at Suddagunte Palya and the cab driver who was passing by shifted the said Shwetha to the Hospital. The two wheeler was going from K.R. Puram to Halasuru when accident took place and it was being rode recklessly. He was told that, the rider Nithin had consumed alcohol at the time of accident. He was told the two wheeler number was KA-03/HU-5973. In this regard he has given complaint Ex.P1. After giving the Complaint he has shown the spot of accident to the police. At that time police drawn the Spot Mahazar Ex.P.2.
14. In the cross-examination, PW.1 has deposed that he does not remember whether he received the phone call from CMH Hospital landline or mobile phone. The CMH Hospital obtained his number from his known person Felix who is in Mangalore. PW.1 has voluntarily deposed that 9 SC.No.898/2019 Judgment Felix also telephoned to him. He do not remember whether Hospital telephoned first or Felix telephoned first. Felix told him that his known person has met with an accident and requested him to go to hospital. He does not remember when he reached the hospital.
15. Further, PW.1 has deposed that, a number of people in the hospital gave him the information. Number of people means about 50 people who were there. It was about half an hour after receiving the phone call that he reached the CMH Hospital, But he cannot tell the exact time. He came to know about the incident only after he came to hospital on the basis of what was informed to him by others. He is not an eye witness to the incident.
16. Further PW.1 has deposed that, Shwetha is not known to him nor relative. After coming to hospital he was running around between hospital, mortuary for procedures and thereafter the family members came and the body was sent for postmortem and after post mortem the body was released to family members. He thought that Shwetha's 10 SC.No.898/2019 Judgment parents and sisters had come. He has voluntarily deposed that the number of family members had come. He further deposed that Felix had also come. After the body was taken to mortuary he gave the complaint. He does not remember the time of complaint, but it was in the morning. He has given the complaint about who was riding the two wheeler on the basis of what was informed to him by others. He does not know Nitin, but in the hospital and in the police station they were saying that Nitin was riding the two wheeler.
17. Further, PW.1 has deposed that, he does not know that, Nithin was not riding the two wheeler. He denies that without knowing anything he has given false complaint. He does not know that, Nithin does not consume alcohol. He signed spot mahazar at about the same time. It may be about 10.00 or 10.30 a.m. Number of boys i.e., about 50- 100 boys were there and the said boys showed the spot. Nobody asked him to give the complaint. Since the parents and relatives came later, he has lodged the complaint. 11 SC.No.898/2019
Judgment
18. PW.1 is not an eye witness. He has not seen Accused No.1 on 13/06/2016 at 1.30 a.m. He has not seen accused No.1 under the influence of alcohol along with pillion rider the deceased drove motorbike No.KA-03/HU- 5973 in a rash and negligent manner dashed against the footpath and to the signal pole. PW.1 after coming to the Hospital received the information from others and has lodged the complaint. Somebody told him that Accused No.1 Nithin was riding the motorbike in rash and negligent manner and caused the accident. PW.1 has not seen that in the accident both rider and pillion rider falling down from motorbike. PW.1 is also not witnessed Swetha sustaining head injury and injuries all over the body in the road traffic accident. Therefore, the evidence of PW.1 is hear say Evidence.
19. PW.2 has deposed that, in 2016, he was working as Auto Driver. Almost on daily basis he would travel in the road from K.R. Puram to Ulsoor. He has not seen any accident taken place on that road. He has not given 12 SC.No.898/2019 Judgment statement to police. He has not seen Accused No.1 present before Court or earlier. He had not gone to Indiranagar Police Station in relation to any accident. He has not identified any accident vehicle in the police station and he has not given any statement to police.
20. PW.2 is an Eye Witness to the accident, but has turned hostile to prosecution case. Therefore, the learned PP treated PW.2 as hostile and suggested the case of prosecution. PW.2 has denied that, on 12/06/2016 at 1.30 a.m when he was going from K.R. Puram to Ulsoor, he saw Accused No.1 driving his two wheeler bearing Reg.No.KA- 03/HU-5973 in rash and negligent manner and at that time there was a pillion rider sitting behind Accused No.1 on two wheeler and Accused No.1 drove rashly and came from hind side of his auto and hit the speed breaker on the road and due to his rash driving Accused No.1 was unable to control the scooter and the two wheeler fell on the footpath as a result of which Accused No.1 and pillion rider sustained injuries and said accident took place only due to the rash 13 SC.No.898/2019 Judgment driving of Accused No.1 and when he went near Accused No.1 he was smelling of Alcohol, he arranged for sending Accused No.1 and pillion rider to CMH Hospital.
21. Further PW.2 has denied that, on 20/10/2016 near Metro Station when Indiranagar Police were enquiring about the incident he told everything to Indiranagar Police and Indiranagar Police called him to the Police Station where he identified the two wheeler of Accused No.1 which was damaged in the front portion and in the police station, he identified Accused No.1 as rider of two wheeler when his photograph was shown to him. He denies that, although he has given his statement before the police as per Ex.P3, he is deposing falsely.
22. PW.3 the mother of deceased has deposed that, Swetha is her daughter. In 2016 she was working in Northern Trust, Bengaluru, since 2015. Now, Swetha is no more. On 13/06/2016 midnight she received a phone call from somebody, but she did not get his name. He told her that, Swetha has met with an accident. She immediately 14 SC.No.898/2019 Judgment came to Bowring Hospital, Bengaluru. She saw the body and it had injury on the head. The police recorded her statement. The person who telephoned did not inform her how, where and when the accident occurred. Therefore, the learned PP treated PW.3 as hostile and suggested the case of prosecution.
23. In the cross examination PW.3 has denied that, the person who telephoned her at midnight informed her that, her daughter met with accident when she was going as pillion rider in a motorbike bearing No.KA-03/HU-5973 rode by Accused No.1 Nithin Nagaraj who was drunk and driving in rash and negligent manner near Suddagunte Palya Junction, Old Madras Road, Bengaluru and the accident occurred at 1.30 a.m. It was subsequently informed to her that, Accused No.1 was in intoxicated condition and due to his rash and negligent driving this accident had occurred. She denies that, in respect of incident she has given statement to police as per Ex.P5.
15 SC.No.898/2019
Judgment
24. In the cross-examination made by counsel for Accused, PW.3 has deposed that, she does not remember the exact time at which she came to Bengaluru on that day. She went to Bowring Hospital first and did not go directly to police station. She does not know, who informed to her as to how the accident took place. She did not ask the police how accident took place because she was in a bad condition. She has not given the police complaint.
25. PW.3 is only hear say witness. After receiving the information of accident she came to Bowring Hospital and saw the dead body. Even according to PW.3 the person who telephoned her did not inform her about how and where and when the accident was occurred. Even in the cross- examination PW.3 has denied that the deceased was going on motorbike bearing No.KA-03/HU-5973 as a pillion rider rode by Accused No.1 Nithin Nagaraj in a drunken condition. PW.3 is hear say witness.
26. PW.7 Dr. K.V. Sathish, who has conducted the postmortem on the deceased Swetha D'souza has deposed 16 SC.No.898/2019 Judgment that, on 13/06/2016 he received requisition from PI of Indirangar Traffic P.S. to conduct postmortem on deceased Swetha D'souza. On the same day in between 4 & 5 p.m he conducted postmortem examination and found the following external injuries.
a) Graced abrasion in right foot measuring 6 x 4 cm, outer right foot over including toes over an area measuring 7.5 x 3 cm
b) Lacerated wound over medial aspect of right foot, ankle measuring 4 x 2.5 into skin deep.
c) Lacerated wound medial aspect of left foot measuring 4.5 x 2 cm into skin deep
d) Abrasion over right dorsal hand measuring 3 x 1 and 2 x 2 cms
e) Minute abrasion over right outer fore arm over an area measuring 16 x 4 cms.
f) Abrasion on left dorsum hand over an area measuring 7 x 4 cm
g) Abrasion on left knee area on an area measuring 10 x 6 cm, posterior over an area 6 x 4 cm.
h) Abrasion on right knee over an area measuring 7 x 5 cm over its front aspect.
27. He found the internal injuries on dissection of the body.
a) Scalp - extravassation all over the occipital extending to nape of back of head 17 SC.No.898/2019 Judgment
b) Skull - Skull shows hinge middle cranial fossa with fissure fracture over right side occipital to the hinge fracture measuring 7.5 cm.
c) Membrane - shows laceration over the fracture area
d) Brain - Brain shows sub dural and sub arachnoid haemorrhage over basal, both occipital and frontal regions of cerebral cortex. Rest of all the organs were intact and pale.
28. PW.7 has further deposed that, Stomach shows altered blood with few chunks of chicken fibre meal about 250 ml. Smell of alcohol was present. All the injuries are ante-mortem and fresh in nature. Abrasions were red in colour. Fractured sites shows extravassation of blood. All cavities smells of alcohol.
29. Further PW.7 has deposed that, he is of the opinion that the death was due to head injury sustained. In this respect he has issued postmortem report along with his signature as per Ex.P11. He is of the opinion that, the above injury may be caused in road traffic accident.
30. In the cross-examination made by Learned Counsel for Accused, PW.7 has deposed that, the body was already in the mortuary. He denies that on 13/06/2016 he 18 SC.No.898/2019 Judgment was not on duty in Bowring Hospital. He denies that he has not conducted the postmortem on the dead body of Swetha D'souza. He denies that, the deceased had not sustained any head injury. He denies that, to help the complainant he is deposing falsely.
31. PW.4 Dr. Vijay Shambu Bhatt, who examined Accused No.1 has deposed that, on 13/06/2016, he received blood sample of Accused No.1 for alcohol test and found that the alcohol level was 175 mg. Per deciliter and accordingly he has issued a Report as per Ex.P6.
32. In the cross-examination made by Learned Counsel for Accused, PW.4 has deposed that, the blood sample was dispatched from Phlebotomy to his department. He admits that, he does not know who collected the blood sample from the person. He denies that, although there was no alcohol in the blood sample, he has given false report. He denies that, he is giving false evidence, to help the prosecution.
19 SC.No.898/2019
Judgment
33. PW.8 Dr. Murali Kumar V who examined the Accused No.1 as deposed that, on 13/06/2016, he was working as Chief Casualty Medical Officer in CMH Hospital, Indiranagar, Bengaluru. On that day, at around 1.55 a.m he examined the injured Accused No.1 with the history of road traffic accident. On examination, he found the following injures:
1. Abrasion over right elbow measuring 1 x 1 cm
2. Abrasion over left knee measuring 2 x 3 cm
3. Abrasion over right knee measuring 3 x 1 cm
4. Abrasion over left foot measuring 2 x 1 cm
34. The patient had consumed alcohol. He is of the opinion that, the injuries No.1 to 4 are simple in nature. After examination, he has issued the wound certificate Ex.P13. After examination he has issued police intimation through his assistant Kalai Arasi as per Ex.P14. If a person falls from two wheeler the above injuries may be caused in road traffic accident. He has identified the injured Nithin present before this court.
35. During the cross-examination by learned counsel 20 SC.No.898/2019 Judgment for the Accused, PW.8 deposed that he found all the four injuries on the body of Accused No.1. He denied that, Accused No.1 not sustained these injuries in road traffic accident. He denies that, these injuries will not occur in the road traffic accident.
36. PW.10 J. Vasudeva has deposed that as on 29/07/2016, he was working as Sr. Motor Vehicle Inspector in the office of RTO, Indirangar, Bengaluru East. On 29/07/2016 he received a requisition from PI of Indiranagar Traffic Police at 3.30 p.m along with two wheeler No.KA-03/ HU-5973. He examined the vehicle and found the following damages :
1. Front mud guard damaged
2. Front Wheel Assembly pressed inwards
3. Headlight assembly dislocated and
4. Handle bar was bent
37. He has further deposed that, on stationary position he found the break system and its linkages were in working order. The mechanical condition was intact. He is of the opinion that, the above damages are not due to any 21 SC.No.898/2019 Judgment mechanical disorders of the above vehicle. Along with his signature he has issued IMV Report at Ex.P15. The photographs are already collectively marked as Ex.P7. Above damages might have occurred in road traffic accident.
38. During the cross-examination by learned counsel for the Accused, PW.10 has denied that, headlight was intact and he is deposing falsely and the front mud guard was not damaged. The Chassis was not damaged. He has further denied that, the break system was not in working order. The impact was on the front side. He denies that due to pothole above damages have occurred. The backside of the vehicle was not damaged.
39. PW.5 Nanjundaiah, has deposed that, from 2013 to 2017 he was working as PSI, JB Nagar Traffic P.S. At that time Indiranagar Traffic PS got merged with JB Nagar Traffic PS. On 12/06/2016 he was on night duty from 10.00 pm to 8.00 am. On that day, CW.16 was on duty with him. On 13/06/2016 early morning at 1.45 am he got message from Police control room that accident has taken 22 SC.No.898/2019 Judgment place at junction of Old Madras Road at Sadgunte Palya. Accordingly, he went to the spot along with CW.16. At the spot two wheeler bearing No.KA-03/HU-5973 was there and the front portion of the two wheeler was damaged and two wheeler had fallen down and at some distance from the said vehicle there were blood stains on the road. On enquiry with the public who were there at the spot, informed that, a person/rider with a girl sitting pillion on said two wheeler had come from KR Puram towards Halasuru and the rider drove the motorbike in rash and negligent manner and in a zig zag manner and hit the footpath stone on left side of the road as a result of which the girl who was sitting pillion on the two wheeler was thrown into air for ten feet and fell on the ground and injured her head and other parts of the body and became unconscious and the rider also sustained minor injuries and the members of the public shifted both rider and the girl to CMH Hospital. He was also informed that, both the rider and the girl were under influence of alcohol.
40. He further deposed that, he immediately went to CMH Hospital. He enquired doctor about accident case and 23 SC.No.898/2019 Judgment the doctor shown him the girl who was on stretcher in unconscious state and the doctor also shown him the rider of the said two wheeler who was sitting. The doctor told him that, the girl had died on the way to the Hospital. The name of the said girl was Shwetha D'souza. He enquired the rider about his name and he told him his name is Nithin Nagarajan. PW.5 identified Accused No.1 present before Court as the said rider of the two wheeler who was shown to the witness on that day in the Hospital. PW.5 identified the photographs of the two wheeler involved in the accident as Ex.P7.
41. He has further deposed that, he informed the matter to Police Inspector, he told him to get report of alcohol content in the blood of rider and he requested the doctor to take blood sample and give report regarding alcohol content, but doctor told him that, the facility is not available. Further, P.W.5 and CW.16 took the Accused No.1 to Manipal Hospital. In Manipal Hospital, he requested the doctor to test the blood of Accused No.1 for alcohol content and there the doctor took blood sample of Accused No.1. The doctor 24 SC.No.898/2019 Judgment told him that Report will be given after one hour. Therefore, he brought Accused No.1 to police station and produced him before PI and gave statement to IO.
42. During the cross-examination by learned counsel for the Accused, PW.5 has deposed that, he cannot tell the name of the staff of control room who telephoned to him who informed him about the accident. He got the wireless message at 1.45 am and reached accident spot within 10-15 minutes. The said spot is 3-4 Kms from their police station. He has deposed that, he was on rounds outside police station when he received the call. After receiving phone call he went to police station and entered in SHD and then went to the spot. He does not know whether IO has produced SHD along with charge sheet. He went to the spot of accident in two wheeler. It may be true that, it was 2.00 a.m when he went to the accident spot. He cannot tell the name of members of public who told him about accident. He denied that at 2.00 a.m early morning no member of public will be present and he is deposing falsely that he went to the spot. He does not remember the name of the doctor in 25 SC.No.898/2019 Judgment CMH Hospital. He reached CMH Hospital at about 2.30 am. He enquired the duty doctor in CMH Hospital. He has denied that he neither went to spot of accident or hospital. He further deposed that, since he was informed by doctor and public that rider has consumed alcohol and there was also smell of alcohol from the rider on instructions of PI he requested doctor for blood test, but since facility was not there he took Accused No.1 to Manipal Hospital. The doctor did not give anything in writing stating that, facility of blood test for alcohol content is not available in CMH Hospital.
43. PW.5 has further deposed that, they reached Manipal Hospital at about 2.45 am. He does not remember name of doctor of Manipal Hospital who collected blood sample. He has denied that, he never took Accused No.1 to Manipal Hospital. At about 3.00 am he brought Accused No.1 to police station. The PI did not give instruction in writing to take blood sample of Accused No.1. He volunteers that, he informed through wireless message. In Manipal Hospital blood sample was taken by nurse, but he does not know her name. He does not remember the time at which 26 SC.No.898/2019 Judgment blood sample was taken. He has denied that he did not get tested blood of Accused No.1 in Manipal Hospital. He did not go back to Manipal Hospital to collect blood report. He has denied that, he did not do duty on that day and he is deposing falsely only to help CW.1.
44. PW.5 has further denied that Accused No.1 was not at all involved and he has deposed falsely against him. He denied that, Accused No.1 had not consumed alcohol and he has deposed falsely. He has denied that, he has given false evidence and false 161 statement. He gave statement on 13/06/2016 in early morning. He denied that, he did not give statement at that time and his statement is subsequently created and on that basis, he is giving false evidence. He has denied that, no incident took place and he is deposing falsely.
45. PW.6 Eranna Balaburgi, has deposed that, from May 2016 to July 2017, hr was working as Police Inspector Indiranagar Traffic P.S. On 13/06/2016 at 3.15 am, when he was SHO, CW.1 came to police station and gave 27 SC.No.898/2019 Judgment complaint in writing and he registered the same in FIR in Cr.No.97/2016 as per Ex.P.8. He sent the FIR and complaint to the jurisdictional Court and copies to his Superior Officers. Since, he was informed that the dead body of deceased Swetha D'souza is in CMH Hospital, he went to CMH Hospital and made arrangement to shift the body to Bowring Hospital. In CMH Hospital he collected the death memo which is marked as Ex.P.9. Through his staff CW.17 he shifted the Accused Nithin Nagarajan who was taking treatment in CMH Hospital to Manipal Hospital for checking his blood sample for alcohol content. After the blood sample of Accused No.1 was checked in Manipal Hospital, CW.17 brought Accused No.1 to police station and after following the legal formalities and after enquiring him, he arrested him.
46. Further PW.6 has deposed that, on the same day he received Report Ex.P6 from Manipal Hospital regarding alcohol content in the blood sample of Accused No.1 which was 175 mg per DL. Then, along with his staff he went to the spot of accident/incident which was shown by CW.1. 28 SC.No.898/2019
Judgment The said spot is Junction of Old Madras Road and Sudgunte Palya. He secured the presence of C.Ws2 to 4 as panch witnesses and at the spot he prepared spot mahazar from 11.00 am to 12.00 pm. He has deposed that, in the spot mahazar by oversight the date is wrongly mentioned as 27/04/2016 instead of as 13/06/2016. He prepared the rough sketch at the time of spot mahazar. Furtehr he has deposed that the rough sketch is prepared by him as per Ex.P10. On the same day, he recorded the statements of C.Ws.2 and 4 who were the eye witnesses to the accident. On the same day he also recorded statements C.Ws.16 and
17.
47. PW.6 further deposed that, then he produced Accused No.1 before Learned Magistrate through his staff and Accused No.1 was remanded to judicial custody. On the same day, he got information that, the mother of deceased has come to Bowring Hospital and accordingly, he went to Bowring Hospital and recorded her statement. On the same day, in the mortuary of Bowring Hospital he prepared Inquest Mahazar Ex.P4 on the dead body of 29 SC.No.898/2019 Judgment deceased Swetha D'souza in the presence of panch witnesses i.e., C.Ws.5 to 7 from 3.00 to 4.00 pm. Then, he issued requisition to doctor along with form 146(1 & 2) for conducting the postmortem of dead body. After the PM the dead body was released to relative of deceased.
48. PW.6 has further deposed that, on the same day, he received the postmortem report Ex.P11. On the same day, he issued Sec.133 MV Act Notice to the registered owner of the two wheeler involved in the accident i.e., KA- 03/HU-5973 i.e., Gerald Vimal. On the same day, said Gerald Vimal submitted his reply to the said notice. The said Notice and the reply to the same are now collectively marked as Ex.P12. His staff produced the said two wheeler from the spot to police station and he seized the same under mahazar Ex.P6 (marked with consent) and subjected the same to PF. He has identified the two wheeler seen in the photographs collectively marked as Ex.P7 as the said two wheeler involved in the accident. He has deposed that, at the time of accident the vehicle was not duly insured. He has further deposed that, on 13/07/2016, he handed over the 30 SC.No.898/2019 Judgment investigation to C.W.19. CW.8 has stated before him as per Ex.P5.
49. During the cross-examination by learned counsel for the Accused, PW.6 has deposed that, he was on duty on 13th June 2016, the charge sheet is not filed by him, but he is aware that no document is produced. He volunteers that Station House Dairy will be there to show he was on duty on that day. For the question, what his hours of duty on that day, he deposed that if any such incident takes place, they will be on duty 24 hours. He got information regarding the incident from his night duty staff. He does not remember who gave information to night duty staff. He does not remember at what time he got the information from his staff regarding the accident. On getting the information, he first went to the police station and when he got the information, he was in his residence. As soon as he came to police station, he has made entry in station house dairy. The station house dairy is not produced in this case. He came to police station at about 3.00 a.m. After registering the FIR, he went to CMH hospital at approximately 4.30 am. He 31 SC.No.898/2019 Judgment registered the FIR at 3.15 a.m. CW1 came to police station and gave complaint. PW.6 has denied that, he is deposing falsely that CW.1 came to police station at 3.15 a.m and gave complaint. He did not give any intimation to CWI. and he himself came to police station and gave complaint.
50. PW.6 further deposed that, in CMH hospital, he met the doctor. He does not remember the name of the doctor. He has denied that, he never went to CMH hospital and therefore he is saying he do not remember the name of the doctor. He does not remember the time at which he sent Accused No.1 through CW.17 to Manipal Hospital. He does not remember the time at which A1 was brought from Manipal Hospital to police station. I got the alcohol content report in the morning, but he does not remember the time. He sent his requisition in writing to Manipal Hospital for checking the blood sample of Accused No.1 through his staff CW.17. The said requisition is not produced along with the charge sheet. He denied that, for this reason he is deposing falsely that he sent Accused No.1 through his staff to Manipal hospital.
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51. PW.6 has further deposed that, he does not remember the time at which he got shifted the body from CMH hospital to Bowring hospital. He has denied that, he has not done duty on that day and for this reason he is saying that he does not remember the timings. The blood report was brought to police station by CW17 Nanjundaiah. CW17 brought the blood report when he brought A1 to police station. He does not remember whether he has entered in any dairy regarding deputing CW.17 to take A1 to Manipal Hospital. He has denied that, he has deposed falsely that CW.17 brought blood report. He went to the mortuary of Bowring Hospital at about 2.00 pm. He does not remember the name of the staff through whom he got shifted the body from CMH to Bowring Hospital. He went to the spot of incident at about 5.30 am. He went to the spot along with his staff Rakeshappa. After going to the spot at 5.30 a.m, in the presence of panch witnesses, he prepared spot mahazar. Again, he says that, spot mahazar is prepared at 11.00 a.m and when he went to the spot at 5.30 a.m, he only ascertained the spot and the two-wheeler involved in the 33 SC.No.898/2019 Judgment accident was lying at the spot and he got it shifted to police station. The spot mahazar was got typed at the spot by using laptop. He denies that, the spot mahazar was prepared in police station.
52. Further PW.6 has denied that, only to trouble the accused, he has created false rough sketch as per Ex.P10. He has deposed that, in the rough sketch he has mentioned that there is a steep incline in the road at the spot. He denied that, the accident took place because of the incline in the road. PW.6 volunteers that accident took place because Accused No.1 was driving in rash and negligent manner under influence of alcohol. He has denied that he is deposing falsely that Accused No.1 was under the influence of alcohol at the time of accident and all the documents got marked by him are created for the purpose of this case. He has not given any information to the complainant about the happening of the accident. He further denied that, no incident has taken place and the complaint was not given at the time stated by him. He has denied that, the witnesses cited are created by him for the purpose of this case. 34 SC.No.898/2019
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53. PW.9 Mohan N.H has deposed that, on 13/07/2016 he received the further investigation of this case from CW.18 and on 29/07/2016, he issued a Requisition to RTO, Indiranagar to examine motor bike No.KA-03/HU-5973 and obtained acknowledgment. On 05/12/2016, he recorded the statement of CW.9 as per Ex.P3. On 10/01/2017, he received the wound certificate Ex.P13. On 10/02/2017, he received the motor vehicle report from RTO Indirangar. The report is marked as Ex.P15. On 10/03/2017, he completed the investigation and filed the charge sheet against the Accused persons alleging the offence punishable U/Sec.304(2) of IPC and Sec.185, 146 r/w. Sec.196 of MV Act.
54. During the cross-examination by learned counsel for the Accused, PW.9 has deposed that he has not enquired Accused No.1 and 2. He has denied that, on 10/01/2017 he has not received the wound certificate Ex.P13 and on 10/02/2017 he has not received the MV Report Ex.P15 and the two wheeler appearing in Ex.P7 is not involved in the accident.
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55. As discussed above only on the information PW.1 came to CMH Hospital and saw the dead body of Ms. Swetha D'souza. He heard about the incident from some body. He is not an eye witness. Only on the say of others PW.1 has deposed that the deceased was a pillion rider on the two wheeler which was rode by Accused No.1 and the accident was occurred due to the vehicle falling on the left side footpath at Sadgunte Palya and Car driver shifted the deceased to Hospital. Further on the say of others PW.1 has deposed that the accident took place on K.R Puram Ulsoor road, because of rash driving of rider Nithin as he consumed alcohol at the time of accident.
56. PW.2 is an eye witness, but has deposed that he has not seen accused No.1 earlier, he had not gone to Indiranagara Police Station in relation to any accident, he has not identified any accident vehicle in the police station and he has not given any statement before the police. Even the learned PP has treated PW.2 as hostile and suggested the case of the prosecution.
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57. But PW.2 has denied that on 12/06/2013 at 1.30 a.m when he was going from K.R Puram to Ulsoor he saw Accused No.1 driving his two wheeler in a rash and negligent manner along with a pillion rider came from hind side of his Autorickshaw, hit the speed breaker on the road and due to his rash driving Accused No.1 was unable to control the two wheeler. Therefore the two wheeler fell on the footpath as a result Accused No.1 and deceased sustained injuries and the said accident took place only due to the rash and negligent driving of the Accused No.1.
58. Further PW.2 also has denied that Accused No.1 consumed alcohol, they arranged for sending accused No.1 and the deceased to CMH Hospital and on 20/10/2016 near Metro Station when Indiranagara Police were enquiring about the accident he narrated the entire incident before the Indiranagara Police and Indiranagara Police called him to police station and in the police station he identified the two wheeler and Accused No.1. PW.2 has denied that he has 37 SC.No.898/2019 Judgment given his statement before the police as per Ex.P3 and he is deposing falsely.
59. PW.3 is mother who received the phone call in the midnight on 13/06/2016 from somebody stating that her daughter Ms. Swetha D'souza has met with an accident. Therefore immediately she came to Bowring Hospital, Bengaluru and saw that the deceased had sustained head injury. A person who telephoned her did not inform her how and where and when the accident occurred. Therefore the learned PP has treated PW.3 as hostile and suggested the case of the prosecution.
60. In the cross-examination made by learned PP, PW.3 has denied that the person who telephoned here at midnight informed her that her daughter met with accident when she was a pillion rider in motorbike bearing Reg.No.KA-03/HU-5973 rode by Accused No.1 under the influence of alcohol in rash and negligent manner near Sadgunte Palya Juncttion and caused the accident at 1.30 a.m. PW.3 has denied that she has given her statement 38 SC.No.898/2019 Judgment before the police as per Ex.P5. PW.3 is only a hear say witness. PW.3 has denied that the deceased was going on motorbike bearing Reg.No.KA-03/HU-5973 as a pillion rider rode by Accused No.1 under the influence of alcohol.
61. According to the evidence of Doctors both rider and pillion rider were under the influence of Alcohol. But the eye witness has turned hostile to the prosecution case and failed to depose that on 13/06/2016 at 1.30 a.m under the influence of alcohol Accused No.1 along with deceased drove a motorbike in a rash and negligent manner and dashed against the left side footpath, therefore lost control and dashed against the traffic signal pole, fell on the road along with motorbike and the pillion rider jumped and fell on the road about 10 feet away and sustained injuries all over the body lost conscious and Accused No.1 also sustained injuries.
62. According to P.Ws.5 & 6 they saw the Accused No.1 under the influence of alcohol in the Hospital, but they are not the eye witnesses and they have not at all seen the 39 SC.No.898/2019 Judgment incident and therefore the evidence of I.O's is not corroborated with the evidence of eye witness.
63. PW.9 after receiving the further investigation of the case recorded the statement of CW.9 as per Ex.P3, received the wound certificate Ex.P13, received the motor vehicle inspection report and filed the charge sheet against the accused persons.
64. Further PW.10 is the Retired Motor Vehicle Inspector and found the damages on front mud guard, front wheel assembly, head light assembly, handle bar of the two wheeler. The accident was not occurred due to any mechanical defect of the vehicle.
65. But as discussed above, the eye witness has not supported the case of the prosecution. The evidence of P.Ws.1 & 3 is hear say evidence and the remaining are the doctors, I.Os and IMV Inspectors.
66. `Nobody has seen Accused No.1 on 13/06/2016 at 1.30 a.m driving the motorbike under the influence of 40 SC.No.898/2019 Judgment alcohol in high speed in a rash and negligent manner and caused accident.
67. Therefore, I hold that the prosecution has failed to prove beyond all reasonable doubt that on 13/06/2016 at 1.30 a.m in the early morning Accused No.1 along with deceased on Old Madras Road near Sadgunte Palya Junction within the limits of Indiranagara Police Station from K.R. Puram to Ulsoor side Accused No.1 drove the motorbike bearing Reg.No.KA-03/HU-5973 in high speed rash and negligent manner under the influence of alcohol hit the left side footpath, unable to control the motorbike hit the traffic signal pole, as a result of which the motorbike crashed to the ground and deceased sustained grievous head injury, as a result of which she died and thereby accused No.1 committed an offence punishable U/s 304(2) of IPC.
68. P.Ws.5 & 6 the Investigating Officers saw Accused No.1 under the influence of Alcohol in the Hospital. The doctor also found that Accused No.1 was under the influence of alcohol. But nobody have seen that Accused 41 SC.No.898/2019 Judgment No.1 drove the motorbike under the influence of alcohol. Therefore I hold tghat the prosecution has failed to prove that the offence punishable U/s 185 of IMV Act against the Accused No.1.
69. The prosecution has alleged that the Accused No.2 knowing fully well that the two wheeler bearing Reg.No.KA-03/HU-5973 has no valid insurance policy handed over his motorbike to Accused No.1 to ride the same in public place. Even after framing of Charge the Accused No.2 has not produced any document on record to show that there was Insurance Policy thereby allowed the vehicle bearing Reg.No.KA03/HU-5973 to ride in a public road. Therefore the Accused No.1 & 2 are guilty of the offence punishable U/s 146 r/w Sec.196 of M.V. Act. Hence, I proceed to answer Points No.1 & 2 in the Negative and Points No.3 & 4 in the Affirmative.
70. Point No.5: For the foregoing reasons discussed on above points, I proceed to pass the following: 42 SC.No.898/2019
Judgment ORDER Acting under Sec.248(1) of Cr.P.C. accused No.1 is hereby acquitted from the offences punishable U/s 304(2) and Sec.185 of IPC.
Acting under Sec.248(2) of Cr.P.C, accused No.1 & 2 are hereby convicted for the offence punishable U/s 146 r/w Sec.196 of IMV Act.
Accused No.1 & 2 are hereby sentenced to pay a fine of Rs.1,000/- each for the offence punishable U/s 146 r/w Sec.196 of IMV Act, in default Accused No.1 & 2 shall undergo S.I for a period of 15 days.
[Dictated to the Stenographer, after his transcription, corrected, signed and then pronounced by me in the open Court on this the 29th day of November, 2024].
(Sri. S. Gopalappa) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT; BANGALORE.
ANNEXURE Witnesses examined for the prosecution:
PW.1 : Alwyn Braganza S/o Louis Braganza 43 SC.No.898/2019 Judgment PW.2 : Ramesh S/o Muniyappa PW.3 : Letitia D'Souza W/o Frank D'souza PW.4 : Dr. Vijay Shambu Bhatt S/o Shambu Govinda Bhatt PW.5 : Nanjundaiah S/o Late Honnaiah PW.6 : Eeranna Balaburgi S/o Late Guru Siddappa Balaburgi PW.7 : Dr. K.V Sathish S/o Late Venkataramaiah PW.8 : Dr. Murali Kumar V S/o Late G. Giraswamy PW.9 : Mohan N.H S/o Neelappa Heddnavar PW.10 : J. Vasudeva S/o Janarthana Naidu Documents marked for the prosecution:
Ex.P1 : Complaint Ex.P1(a) : Signature of CW.1 Ex.P1(b) : Signature of CW.18 Ex.P2 : Spot Mahazar Ex.P2(a) : Signature of CW.1 Ex.P2(b) : Signature of CW.18 Ex.P3 : Statement of CW.9 Ex.P4 : Inquest Mahazar Ex.P4(a) : Signature of CW.18 Ex.P5 : Statement of CW.9 Ex.P6 : Blood sample report Ex.P6(a) : Signature of CW.12 Ex.P7 : Photographs of bike Ex.P8 : FIR Ex.P8(a) : Signature of CW.18 Ex.P9 : Death memo of CMH Hospital 44 SC.No.898/2019 Judgment Ex.P10 : Rough sketch Ex.P10(a) : Signature of CW.18 Ex.P11 : P.M. Report Ex.P11(a) : Signature of CW.18 Ex.P11(b) : Signature of CW.14 Ex.P12 : Notice U/s 133 of MV Act Ex.P12(a) : Signature of CW.18 &(b) Ex.P13 : Wound Certificate Ex.P13(a) : Signature of CW.13 Ex.P13(b) : Signature of CW.19 Ex.P14 : Intimation to Police Ex.P15 : Motor Vehicle Report Ex.P15(a) : Signature of CW.19
List Of Witnesses Examined And Documents Marked For Defence:
-NIL-
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT; BANGALORE.