Bangalore District Court
Madiwala Tr Ps vs Srinivas on 26 July, 2024
KABC080053702023
Presented on : 10-11-2023
Registered on : 10-11-2023
Decided on : 26-07-2024
Duration : 0 years, 8 months, 16 days
IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST
CLASS (TRAFFIC COURT-VI), BENGALURU CITY.
DATED THIS 26TH DAY OF JULY 2024.
PRESENT : Smt.AKHILA H.K. B.A., LL.B.,
JMFC (TRAFFIC COURT-VI),
BENGALURU.
CC No.4746/2023
COMPLAINANT: State by Madivala Traffic P.S
Bengaluru.
(State by : Learned APP)
V/s
ACCUSED: Srinivas
S/o Gowdappa,
Aged about 39 years,
No.Depo-38,
Chikkanagamangala,
Bengaluru.
CC No.4746/2023
2
Permanent R/at :
Vaddarahalli Village,
Shravanabelagola.
(Represented by Sri.S.R. Adv.,)
JUDGMENT
The Police Inspector of Madivala Traffic Police Station has filed charge sheet against the accused for the offence punishable U/Sec.279, 304(A) of IPC and Sec.134(A & B) R/w Sec.187 of IMV Act.
2. The brief facts of the prosecution case are as under: -
That on 14.09.2023 at 9.50 p.m. accused being the driver BMTC bus bearing registration No.KA-57-F-5163 drove the same within the jurisdiction of Madivala Traffic Police station and bus was stopped at Hosuru Main road, Madivala check post at that time pedestrian Smt.Subbamma was crossing the road in front of the bus from BESCOM office towards Jogi colony meanwhile without observing the pedestrian accused drove the bus CC No.4746/2023 3 suddenly and hit the said pedestrian, as a result she fell down and bus passed on her left leg and sustained injuries on her left leg and other parts of the body and C.W.4 & 5 shifted the injured to St. John hospital through Auto and while taking treatment on 15.08.2023 at 2.15 p.m. she succumbed to death. Further, after the incident accused has failed to provide medical assistance to the injured and he also failed to inform the same to the nearest police station. As such the accused has committed an offence punishable U/Sec.279, 304(A) of IPC and Sec.134(A & B) R/w Sec.187 of IMV Act.
3. Cognizance was taken by perusing the prosecution papers and materials, the accused on receipt of summons appeared before the court and got himself enlarged on bail. On the said date the prosecution papers were furnished to the accused as per Sec.207 of Cr.P.C. and substance of accusation in the form of plea was read over and explained to him, accused pleaded not guilty and claimed to be tried.
CC No.4746/2023 4
4. During the course of trial the prosecution has examined PWs.1 to 8 and got marked Ex.P.1 to 14. The statement of accused as per Sec.313 of Cr.P.C. was recorded the accused had no explanation and he denied the incriminating circumstances appearing against him.
5. The counsel for the accused filed written argument and heard argument on prosecution side and perused the materials available on record.
6. The point that arises for my determination is as under:
1. Whether the prosecution proves beyond all reasonable doubt that, on 14.09.2023 at 9.50 p.m. accused being the driver BMTC bus bearing registration No.KA-57-F-5163 drove the same within the jurisdiction of Madivala Traffic Police station and bus was stopped at Hosuru Main CC No.4746/2023 5 road, Madivala check post at that time pedestrian Smt.Subbamma was crossing the road in front of the bus from Bescom office towards Jogi collony meanwhile without observing the pedestrian accused drove the bus suddenly and hit the said pedestrian, thereby committed an offence punishable under Sec.279 of IPC Act?
2. Whether the prosecution proves beyond all reasonable doubt that, on the above said accident, pedestrian Smt.Subbamma sustained injuries on her left leg and other parts of the body and while taking treatment at St. John's hospital on 15.08.2023 at 2.15 p.m. she succumbed to death, thereby accused committed an offence punishable U/Sec.304(A) of IPC?
3. Whether the prosecution proves beyond reasonable doubt that, after CC No.4746/2023 6 the incident accused has failed to provide medical assistance to the injured and he also failed to inform the same to the nearest police station, thereby accused committed an offence punishable under Sec.134 (A & B) R/w Sec.187 of IMV Act?
4. What Order?
7. My answer to the above points are as under:
Point No.1 : In the negative;
Point No.2 : In the negative;
Point No.3 : In the negative;
Point No.4 : As per final order for the following;
REASONS
8. Point No.1 to 3: For the sake of convenience and to avoid repetition of facts, these points are taken up for common discussions to have brevity.
CC No.4746/2023 7
9. The prosecution case against the accused is that on 14.09.2023 at 9.50 p.m. accused being the driver BMTC bus bearing registration No.KA-57-F-5163 drove the same within the jurisdiction of Madivala Traffic Police station and bus was stopped at Hosuru Main road, Madivala check post at that time pedestrian Smt.Subbamma was crossing the road in front of the bus from Bescom office towards Jogi colony meanwhile without observing the pedestrian accused drove the bus suddenly and hit the said pedestrian, as a result she fell down and bus passed on her left leg and sustained injuries on her left leg and other parts of the body and C.W.4 & 5 shifted the injured to St. John hospital through Auto and while taking treatment on 15.08.2023 at 2.15 p.m. she succumbed to death. Further, after the incident accused has failed to provide medical assistance to the injured and he also failed to inform the same to the nearest police station.
10. In order to bring home the charge against the accused the prosecution has examined 8 witnesses as PWs.1 to 8 and got marked Ex.P.1 to 14. Ex.P.1 is the CC No.4746/2023 8 complaint, Ex.P.2 is the spot mahazar, Ex.P.3 is the rough sketch, Ex.P.4 is the part statement of P.W.1, Ex.P.5 is the death memo, Ex.P.6 is the inquest mahazar, Ex.P.7 & 8 are the notice and reply U/Sec.133 of IMV Act, Ex.P.9 & 10 are the log sheet and trip sheet, Ex.P.11 is the Toxicology resuscitation record & death summary, Ex.P.12 is the IMV report, Ex.P.13 is the PM Report and Ex.P.14 is the FIR.
11. Before adverting to the appreciation of evidence it is proper to state in brief the evidence deposed by the prosecution witnesses.
12. C.W.1 examined as P.W.1, is the complainant. He deposed that, on 14.08.2023 at 10.00 p.m. some one called him and informed him that his mother had met with an accident near Madivala check post. Hence, himself and his brother immediately went to the spot of the accident and saw that she was injured in both her legs and hence, they shifted her to St. John hospital in an auto and he gave a complaint to the police CC No.4746/2023 9 immediately. He has stated that, when he enquired about the accident the public who were present at the spot informed him that a bus came and hit her when she was walking on the road. He has further deposed that, his mother passed away on the same day at 2.00 a.m. He has stated that, the police have obtained his signature to Ex.P.2 and 3 at the time of inquest.
13. In his cross examination he has admitted that, he does not know to read and write Kannada and the police have prepared the complaint and he has affixed his signature to the same. He has stated that, he does not know the name of the person who informed him about the accident. He has stated that, C.W.6 informed him about the manner of the accident. He has admitted that, C.W.2, 3, 5 and 6 are his neighbours. He has admitted that, there is police chowki at a distance of 100 meters from the spot of accident.
14. C.W.2 examined as P.W.2 is the mahazar witness and he has stated that, he has signed to CC No.4746/2023 10 mahazar/Ex.P.2 and rough sketch in the spot of accident with respect to an accident. He has deposed that, he has shown the spot of accident to the police.
15. In his cross examination he has stated that, deceased Subbamma is known to him from past 20 years. He has admitted that, he resides within the jurisdiction of Madivala Traffic police station. He has admitted that, he signed Ex.P.2 and 3 in the police station.
16. C.W.3 examined as P.W.3 is also a mahazar witness he signed Ex.P.2 and 3 in the spot of accident. In his cross examination he has admitted that, deceased Subbamma is known to him from past 30 years and he is a resident in the jurisdiction of Madivala Traffic police station. He has admitted that, he signed Ex.P.2 and 3 in the police station. He has stated that, he does not know who else signed to Ex.P.2 and 3 apart from him.
CC No.4746/2023 11
17. C.W.3 examined as P.W.4 is an eye witness and he has deposed that on 14.08.2023 at 9.45 p.m. when he was waiting for his friend near Madivala Check post a lady was crossing the road from bus stop towards the other side at that time the BMTC bus driver without observing the said lady has driven the bus over the legs and other parts of the said lady. He has deposed that, he called the said lady's son from her phone and later he has taken her to the hospital. He has identified the accused as the offending bus driver.
18. In the cross examination he has admitted that, the road in which the accident occurred is a two way road and there is a road divider. He has stated that, he was 50 meters from the spot of the accident. He has admitted that, he has not informed the police about the direction in which he standing from the spot of accident. He has admitted that, many people gathered at the spot of accident before he went there. He has admitted that, he has not informed the police that he has seen the bus earlier. He has admitted that, there were no zebra crossing in the spot of the accident. He has admitted CC No.4746/2023 12 that, there is a police chowki at a distance of 100 feet from the spot of the accident. He has admitted that, there is pedestrian crossing at a distance of 50 meters behind the spot of accident. He has admitted that, the deceased could have avoided the accident if she had crossed the road at zebra crossing.
19. C.W.5 examined as PW.5 is another eye witness and he has deposed that on 14.08.2023 at 9.45 p.m. he was going from his house towards Hosur Main road, he saw a BMTC bus hit a lady who was crossing the road. Thereafter, the said lady was taken to the hospital in an auto and she passed away on the next day in the early hours. He has identified the accused as the offending bus driver.
20. In his cross examination he has admitted that, he is acquainted with the deceased from his childhood. He has admitted that, the road in which the accident took place is a 2 way road with a road divider. He has admitted that, there is no zebra crossing at the spot of CC No.4746/2023 13 the accident. He has admitted that, there is zebra crossing 30 feet behind the spot of accident. He has admitted that, normally the police control the traffic at zebra crossing and help the pedestrian to cross the road easily. He has admitted that, the deceased could have avoided the accident if she had crossed the road at zebra crossing. He has further stated that, he was standing 200 meters away from the spot of the accident. He has admitted that, the road in which the accident occurred is a busy road.
21. C.W.16 to 18 are examined as P.W.6, 7 and 8 respectively they are the I.O., and they have deposed about the investigation conducted by them. In the cross examination they have admitted that, there is a sky walk for the pedestrian to cross the road near the spot of accident and they have also admitted that there is notice board near the sky walk directing the pedestrians to use the sky walk to avoid accidents. They have further stated that, deceased is a old woman aged 60 years and it is not possible for her to use the sky walk. They have admitted that, there is no zebra crossing in the spot of CC No.4746/2023 14 accident. They have also admitted that, the spot of accident is a national high way.
22. With the above evidence, this court has to ascertain whether the prosecution has proved the guilt of the accused beyond all reasonable doubts. In order to prove offence U/Sec.279 of IPC the prosecution has to prove;
(i) Rash and negligent driving on public way
(ii) The act must be such as to endanger human life or likely to cause hurt or injury to any person.
23. To prove an offence U/sec.304(A) of IPC the prosecution has to prove;
i) death of a person.
ii) the death occurred due to the rash or negligent act of the accused person.
iii) there must be an absence of an intention to cause death
iv) there must be a direct link between the rash and negligent act and death of the victim.
CC No.4746/2023 15
24. After marshalling all the oral and documentary evidence it is crystal clear that, there is no dispute about the accused driving the offending bus on the date of the accident. There is no dispute about the death of Smt.Subbamma who was the pedestrian. As per P.M. report/Ex.P.13 the injuries are ante-mortem and death occurred due to shock and haemmorrhage as a result of crush injury sustained to the left lower limb. Hence, there is no dispute that the injuries were sustained by the deceased as a result of accident. There is no dispute regarding IMV report as per Ex.P.12, which states that there is no mechanical defects in the offending vehicle. Hence, the accident did not occur due to any mechanical defects of the vehicle involved in the accident. Since, the death of Smt.Subbamma is not disputed and it is not denied that the accused was driving the offending vehicle the prosecution has to prove only the aspect of rash and negligent driving on the part of the accused which has led to the accident.
25. In this regard the prosecution has examined P.W.4 and 5 who are eye witnesses. Both have deposed CC No.4746/2023 16 that the accused who is the driver of the BMTC bus hit the deceased who was crossing the road near Madivala check post. They have deposed that, the deceased sustained injuries in her legs and other parts of the body. In the cross examination P.W.5 who is the eye witness has admitted that, he is acquainted with deceased Subbamma from many years. He has admitted that he is residing in the same area. PW.4 has deposed that, he is not acquainted with the deceased Subbamma. But P.W.1 has admitted that, P.W.4 resides in his area. Apart from this P.W.4 and 5 have admitted that, there is no zebra crossing at the spot of accident and there is a police chowki near the spot of accident where the police help the pedestrians to cross the road by stopping the vehicles. They have admitted that, there is a road divider. P.W.4 and 5 have admitted that, deceased could have avoided the accident if she had crossed the road near the police chowki. Therefore, from the evidence of P.W.4 and 5 it is clear that the deceased Subbamma also contributed to the accident and the death cannot be solely attributed to the rash and negligent act of the accused. Apart from these 2 witnesses the prosecution CC No.4746/2023 17 has examined P.W.1 who is the de facto complainant and he has not witnessed the accident. He has arrived at the spot after the accident took place. Hence, his evidence is not useful to the case of the prosecution. The prosecution has also examined I.Os, as P.W.6 to 8 who have all admitted that, there is a sky walk near the spot of accident and they have also admitted that, there is a notice board near the spot of accident directing the pedestrian to use the sky walk to avoid road accidents. They have admitted that, the accident spot is a national high way. They have also admitted that, there is no zebra crossing the spot of accident and there is a police chowki near the spot of accident where the pedestrian could have crossed the road. Therefore, even from the evidence of the investigating officers it is clear that, the accident occurred not only due to the lapse of the accused but also equally due to the negligence on part of the victim in crossing a national high way in spot where there was no zebra crossing.
26. It is the contention of the counsel for the accused that the eye witnesses and mahazar witnesses are all CC No.4746/2023 18 residents of the same area as P.W.1 and they are acquainted with the deceased. Hence, they are interested witnesses and their evidence cannot be considered. P.W.4 has not admitted that, he is acquainted with the deceased whereas P.W.5 has admitted that he is acquainted with the deceased. P.W.4 has explained his presence in the spot of accident by stating that he was waiting for his friend at Madivala check post and P.W.5 has not explained why he was at the spot of accident. It is indeed peculiar that, residents of Jogi colony P.W.4 and 5 were coincidentally present at the spot of accident when deceased Subbamma who is also a resident of Jogi colony met with an accident. But the said area is 100 meters from the spot of the accident as elicited from the evidence of P.W.1. Nothing is elicited from the cross examination of P.W.4 and 5 to show that they have an interest to depose falsely against the accused. Hence, there is no reason for this Court to disbelieve P.W.4 and
5. But at the same time P.W.4 and 5 in their cross examination have admitted that, the deceased could have avoided the accident if she crossed the road at police chowki. Under Sec.304(A) of IPC the death of an CC No.4746/2023 19 individual should be direct and proximate result of a rash or negligent act of the accused. There should not be any intervention of another person's negligence. Therefore, the rash and negligent act of the accused should be the immediate cause. Therefore, the accused cannot be held guilty of rash or negligent driving when the deceased herself negligently crossed the road without having regard to the fact that the said road was a national high way and there was no zebra crossing at the spot of accident.
27. The Hon'ble Supreme Court in Suleman Rahiman Mulani and another v. State of Maharashtra reported in 1968 LW (Crl) 113 held that;
".......What S.304-A requires is causing of death by doing any rash or negligent act and this means that death must be the direct or proximate result of the rash or negligent act. On the basis of the facts of that case, this Court held that the direct and proximate cause of the fire which resulted in seven deaths was the act of CC No.4746/2023 20 one of the workmen in pouring the turpentine too early and not the appellant's act in allowing the burners to burn in the particular room. In the present case, we do not know what was the proximate cause of the accident. We cannot rule out the possibility of the accident having been caused due to the fault of the deceased. The question whether appellant No.1 was proficient in driving a jeep or does conclude the issue. His proficiency in driving might furnish a defence, which a learner could not have, but the absence of proficiency did not make him guilty. The only question was whether, in point of fact he was not competent to drive and his incompetence was the cause of death of the person concerned."
28. A reading of the above judgment would make it clear that unless, it is shown that there is proximity between the death of the deceased and the alleged rash CC No.4746/2023 21 or negligent act, or atleast there is some proximity between these two it is not possible even to hold prima facie that the individual has committed an offence under Section 304(A) I.P.C.
29. There is a duty on the pedestrian to avoid crossing the road at places where there are no zebra crossing and a duty is cast upon them to cross the road only at a designated place. A breach of this rule immediately holds the pedestrian also for negligence and it cannot be said that the accident occurred solely due to the negligence of the accused. Even though it appears that the accused should have kept a careful perspective of the entire road and he should have avoided the accident by keeping in mind that not all roads are marked with zebra crossing at the same time even the pedestrian who was crossing the road should have been careful not to cross the road indiscriminately. Therefore, it cannot be said that the accident occurred solely due to the rash and negligent driving of the accused.
CC No.4746/2023 22
30. Therefore, none of the witnesses in this case have clearly spoken about the negligence or rashness on part of the accused. The prosecution is relying on the act of the accused driving the vehicle itself to prove that there was negligence on his behalf. Hence, the prosecution is relying on the doctrine of Res ipsa loquitur but merely because on the fact and circumstances it appears that there is negligence on part of accused does not make him guilty U/Sec.304(A) of IPC as held by the Hon'ble Supreme Court in Jacob Mathew V/s State of Punjab and another reported in AIR 2005 SC 3180. The prosecution has to prove that the accident would not have occurred if they had be know negligence on the part of the offender and the accident was exclusively under his control or management. Further the prosecution should also prove that the accident is not due to the victim or 3rd parties acts. But in this case the prosecution has failed to meet the essential elements to apply doctrine of Res ipsa loquitur.
31. Prosecution is relying on Ex.P.12 which is the IMV report to prove the guilt of the accused. But as per CC No.4746/2023 23 the IMV report there are no damages found on the offending vehicle. Therefore, Ex.P.12 does not aid the prosecution. Further the prosecution is also relying on Ex.P.2/spot mahazar and Ex.P.3/rough sketch. From the defence taken by the accused it can be culled out that the accused is admitting the spot of accident. But Ex.P.2 and 3 by themselves do not prove the guilt of the accused. Therefore, the prosecution has failed to prove offences punishable U/Sec.279 and 304A of IPC against the accused beyond reasonable doubt.
32. None of the witnesses speak about the conduct of the accused after the accident. P.W.4 and 5 state that the deceased was immediately taken to the hospital in an auto. None of them have deposed that, the accused fled from the spot of accident. In the absence of evidence it cannot be presumed that the accused did not provide the deceased medical aid or did not inform the nearest police station. Moreover, as per the case of the prosecution the police chowki was close to spot of the accident. This fact is admitted by all the witnesses as well. Therefore, the deceased got immediate medical aid and requisite CC No.4746/2023 24 attention from the police. The prosecution has not led any evidence with respect to the inaction of the accused in this regard. Hence, prosecution has not made out offence U/Sec.134(A & B) of IMV Act.
33. It is the burden of the prosecution to prove the guilt of the accused. The evidence placed on record do not rise up to the expectation to prove beyond reasonable doubt in so far as the involvement of accused in the incident is concerned. Therefore, the prosecution version that on the account of rash and negligent driving by the accused, accident has occurred cannot be held to be proved.
34. By ascertaining all these oral and documentary evidence it is clear that, there is no substantive, cogent and corroborative evidence to prove the guilt of the accused. Hence, mere evidence of official witnesses is insufficient to prove the guilt of accused. Therefore, by considering the overall facts and circumstances of this case, this court is of the considered CC No.4746/2023 25 view that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. Hence, point Nos.1 to 3 are answered in the Negative.
35. Point No.4: In view of the findings on point Nos.1 to 3, this court proceeds to pass the following;
ORDER
Acting under Sec.255(1) of
Cr.P.C. accused is hereby acquitted for accusation of commission of the offence punishable U/Sec.279 and 304(A) of IPC & Sec.134(A & B) R/w Sec.187 of IMV Act.
His bail bond and surety
bond stands cancelled after the
lapse of appeal period.
(Dictated to the stenographer directly on computer, typed by her, corrected and then pronounced by me in open court on this the 26th day of July, 2024) (Akhila H.K.) JMFC (Traffic Court-VI), Bengaluru.
CC No.4746/2023 26 ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1 Mohan R PW.2 Ravi PW.3 Manjunath R PW.4 Rudresh PW.5 Prem Kumar PW.6 Venkateshaiah B PW.7 Ashok Kumar PW.8 Suresh
LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1 Complaint Ex.P.2 Spot mahazar Ex.P.3 Rough sketch Ex.P.4 Part statement of P.W.1 Ex.P.5 Death memo Ex.P.6 Inquest mahazar Ex.P.7-8 Notice & Reply U/Sec.133 of IMV Act Ex.P.9-10 Log sheet & trips sheet Ex.P.11 Toxicology resuscitation record Ex.P.12 IMV report Ex.P.13 PM report Ex.P.14 FIR
LIST OF WITNESSES EXAMINED FOR ACCUSED:
Nil CC No.4746/2023 27 LIST OF DOCUMENTS MARKED FOR ACCUSED:
Nil (Akhila H.K.) JMFC (Traffic Court-VI), Bengaluru.