Bangalore District Court
State By Rajajinagar Traffic P.S vs Lokesha H on 4 May, 2023
IN THE COURT OF THE METROPOLITAN MAGISTRATE
TRAFFIC COURT - IV, BANGALORE
PRESENT: SRI GAGAN M.R. B.A.L LLB
Metropolitan Magistrate
Traffic Court - IV, BANGALORE
DATED : THIS THE 4TH DAY OF MAY 2023
C.C. No.5153/2019
COMPLAINANT: State by Rajajinagar Traffic P.S
Bengaluru.
(Represented by Learned APP)
V/s
ACCUSED : Lokesha H.,
S/o Late Hanume gowda ,
Aged about 42 years,
#39, 3rd cross, Sidedahalli main road
Sampangi ramaiah Layout,
Bangalore 73
(Represented by Sri B.G. Adv.,)
JUDGEMENT
The Police Inspector of Rajajinagar Traffic Police Station has filed the charge sheet against the accused for the offences punishable U/s.279, 338 of IPC.
2C.C.No.5153/2019
2. The brief case of the prosecution is that:
On 25052019 at 7.30 a.m. accused being the driver of the BMTC bus bearing registration No.KA01FA0396 drove the same within the jurisdiction of Rajajinagar Traffic Police station on Nandini Layout ring road from Kengeri to Summanahalli via Goruguntepalya while proceeding in the said route near Dr. Rajkumar Samadi he stopped his bus for alightening of passengers from the bus at that time when C.W.2 was getting down from the back door of the said bus during that time without observing the passenger the accused driver negligently drove the bus, due to the said act above said passenger fell down from the bus and sustained grievous injuries on his body and head. Thereby the accused is alleged to have committed the offences punishable U/s.279, 338 of IPC.
3. Upon taking cognizance, case came to be registered against accused for the offences punishable U/s.279, 338 of IPC. The accused appeared before the court through his counsel & got enlarged on bail. Charge sheet copies furnished to the accused and thereby provision U/s..207 of Cr.P.C. duly complied with.
4. Plea came to be framed for the offences U/s.279, 338 of IPC for which accused pleaded not guilty claimed to be tried.
3C.C.No.5153/2019
5. During the course of trial, the prosecution has examined 5 witnesses as P.Ws.1 to 5 and got exhibited documents as per Ex.P.1 to Ex.P.8. On completion of prosecution side evidence, the statement of accused U/s.313 of Cr.P.C. was recorded and the accused denied all the incriminating evidence appearing against him and did not choose to lead any defence evidence.
6. Heard arguments on both sides.
7. The points that arise for my consideration are as follows:
1.Whether the prosecution proves beyond all reasonable doubt that on 25052019 at about 7.30 a.m. accused being the driver of B.M.T.C. bus bearing registration No.KA01FA0396 drove his vehicle in a rash and negligent manner as to endanger human life on Nandini Layout ring road, from Kengeri to Summanahalli, thereby the accused has committed an offence punishable U/s.279 of IPC?
2. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place the accused being the driver of the said vehicle, drove his vehicle in the above said manner. While so driving in Goruguntepalya while proceeding in the said route near Dr. Rajkumar Samadhihe stopped his bus for alightening of passengers from the bus at that time when C/W/2 was getting down from the back 4 C.C.No.5153/2019 door of the said bus during that time without observing the passenger the accused driver negligently drove the bus, due to the impact above said passenger fell down and sustained grievous injuries, thereby the accused has committed an offence punishable U/s.338 of IPC?
3. What order?
8. My answer to the above points are as under:
POINT No.1: IN THE NEGATIVE POINT No.2: IN THE NEGATIVE POINT No.3: AS PER THE FINAL ORDER For the following REASONS
9. POINT NO.1 & 2: For the sake of convenience and to avoid repetition of facts, these points are taken up for common discussion to have brevity.
10. It is the case of the prosecution that on 25052019 at 7.30 a.m. accused being the driver of the BMTC bus bearing registration No.KA01FA0396 drove the same within the jurisdiction of Rajajinagar Traffic Police station on Nandini Layout ring road from Kengeri to Summanahalli via Goruguntepalya while proceeding in the said route near Dr. Rajkumar Samadi he stopped his bus for alightening of passengers from the bus at that time when C.W.2 was getting down from the back door of the said bus 5 C.C.No.5153/2019 during that time without observing the passenger the accused driver negligently drove the bus, due to the said act above said passenger fell down from the bus and sustained injuries on his body and head. Thereby the accused is alleged to have committed the offences punishable U/s.279, 338 of IPC..
11. In order to prove the contents of complaint the prosecution examined 5 witnesses as P.W.1 to P.W.5 and marked 10 documents as Ex.P.1 to Ex.P.8.
12. C.W.1/Mahesh is examined as P.W.1 who is complainant of this case. He deposed that on 25052019 at about 7.15 a.m. while he was in his house he received a call informing him that his sister's son was met with an accident near Rajkumar Samadi and he came to know that while he was deboarding from BMTC bus bearing registration No.KA01/FA3196 he fell down and sustained injuries on his right ear and stomach and he was admitted to people tree hospital for treatment later he was shifted to NIMHANS hospital for further treatment and he has lodged complaint as per Ex.P.1 and identified his signature on complaint. He deposed that accident has taken place due to the negligence of the BMTC bus driver.
During his crossexamination he admits that he has not seen the accident, he cannot say who has made phone call to him and admits there are number of buses which travel in the said ring road 6 C.C.No.5153/2019 and deposed that his sister's son was traveling from Kengeri to mahalakshmi layout and he is going to college and denied the suggestions of the accused counsel. HE further deposed that he came to know about the accident from one Raghavendra who is the eye witness of this case.
13. C.W.2 Mithil is examined as P.W.2 who is victim of this case. He deposed that on 25052019 at around 7.15 a.m. he was traveling in BMTC bus bearing registration No.KA01/FA396 from Kengeri towards Rajkumar Samadhi. The said bus stopped at Rajkumar Samadhi bus stop, public get down from the bus and while he was getting down the driver of the bus drove his vehicle due to which he has fallen down and he sustained injuries on right ear and stomach. Later he was shifted to people tree hospital and NIMHANS hospital. He identified the accused and deposed accident has taken place due to the fault of the accused.
During his crossexamination he deposed that he left Kengeri at 6.45 a.m. and he was going to college for admission. He further admits that in all stops the bus was stopped by the driver and only after intimation from conductor the bus used to proceed. He denied that he has not seen the driver of the bus on the day of accident. He further deposed that he has seen the driver while boarding the bus and further deposed that he boarded the bus from rear door 7 C.C.No.5153/2019 and he has seen the face of the accused in the mirror and denied the suggestions denying the case of the prosecution.
14. C.W.3 Raghavendra examined as P.W.3 who is eye witness of this case. He deposed that on 25052019 between 7.15 to 7.20 a.m. he was standing in the Gorugunte palya side bus stand one BMTC bus came there its slow down and later moved due to which one boy by name Manu fell from the bus he know the name since he admitted the boy to the hospital and the victim was injured and later became unconscious. He gave his number to police station and police verified his number. The door of the bus was not closed by the driver. The bus driver did not stop the bus he just slowed down and drove the bus. The number is KA01/F2396. The accident has taken place due to the driver of the bus and he identified the driver. HE deposed that police conducted spot mahazar as per Ex.P.2 and obtained his signature on it and he aloned signed on Ex.P.2. The witness was treated as partly hostile by the prosecution he was subjected to cross examination.
During his crossexamination he deposed that he came from Kengeri bus stand and he suppose to go to Goruguntepalya. He admits that in the said spot there are several BMTC buses plying the said route. He admits that in bus stand generally people will get deboard the bus quickly. He denies the suggestion that the conductor of the bus given signal to move the bus. He further deposed that actually the bus was not stopped in the bus stand the 8 C.C.No.5153/2019 driver slowed down the bus and moved it forward. He admits that he was standing at a distance of 20ft from the bus stand and there was no person was standing in front of him. He deposed that he informed the accident to his relative Mahesh. Later he denied Mahesh is his friend. He admits that there were several persons in the accident spot and he does not know the contents of panchanama and he alone signed the panchanama.
15. C.W.4 Rakesh kumar is examined as P.W.4 who is the panch witness and he identified his signature on panchanama as per Ex.P.2(b) and deposed that police conducted panchanama on 25052019 between 3.00 to 4.00 p.m. the said panchanama was done with regard to accident occurred during deboarding of bus.
During his crossexamination he deposed that he was present at the accident spot he get down from the bus and later when victim was getting down he fell down he along with 45 persons as taken care of the victim and later he was shifted to hospital by others. He further deposed that he traveled in the bus and get down from the bus at bus stand after stopping of the same and denied the suggestions of the accused counsel.
16. C.W.8 Prakash is examined as P.W.5 who is investigating officer of this case. He deposed that on the basis of information given by C.W.1 on 25052019 he received the 9 C.C.No.5153/2019 complaint and registered the case in Crime No.39/2019 against the accused. He visited the spot and conducted spot mahazar and prepared rough sketch. He has issued 133 notice and received reply for notice. He has received IMV report from RTO officer and he received wound certificate, IMV Report from concern officers. After completion of investigation he has filed a Charge Sheet against the accused U/Sec.279 and 338 of IPC.
During his cross examination he denied the suggestions of the accused counsel and deposed that he has obtained statement of the victim after his discharge.
17. Out of the documents marked for prosecution Ex.P.1 is the complaint, Ex.P.2 is the spot mahazar, Ex.P.3 is the FIR, Ex.P.4 is the rough sketch, Ex.P.5 & 6 are the Notice and reply U/Sec.133 of IMV Act, Ex.P.7 is the wound certificate, Ex.P.8 is the IMV report.
18. In the instant case the prosecution is alleging that due to the negligent act of the bus driver the victim sustained injuries and thereby he has committed the offence punishable U/s.279 and 338 of IPC. The prosecution has to establish that the accused is the person who is driving the bus on the alleged day. To prove that aspect the prosecution has relied on P.W.2 victim and P.W.3 eye witness. P.W.2 victim deposed that he has seen the accused while 10 C.C.No.5153/2019 boarding the bus when accused questioned him about boarding the bus from rear door he deposed that he has seen the accused from mirror no mirror is placed in the bus to see the driver for rear passengers. The mirror is placed by the side of the driver so that he can have look at the rear side of the bus. The witness does not inspire confidence. In the similar manner P.W.3 deposed that he has seen the driver when witness was crossexamined by the APP he deposed that police called him to police station to identify the accused he did not gone to the police station, but his further statement is there with regard to identification of accused. He further deposed that he was standing at a distance of 20ft from the spot of accident. The witness appears to be the relative of the victim. During the crossexamination he stated that the victim name is Mithil but they used to call him Manu and in later part he himself deposed that he called his relative Mahesh who is the complainant. His version clearly shows that he is the relative of complainant and victim and hence he can identify them by their names and nick names. Since the witness is interested witness cannot be relied completely.
19. The case of the prosecution is that the accused driver driven his bus in a negligent manner and due to which the victim fell down and sustained injuries. The victim deposed that the bus was stopped at the bus stand others get down from the bus and while he was getting down the driver moved the bus, but P.W.3 the 11 C.C.No.5153/2019 eye witness deposed that the driver of the bus did not stop his vehicle in the bus stand he made attempt to stop and moved the bus due to which the victim fell down. There is a material contradiction between victim and eye witness. In such circumstances there is a cloud on the case of the prosecution with regard to the act of the accused the same was not cleared by the prosecution by adducing relevant evidence.
20. As far as other question is concerned that whether the accident took place due to rash and negligent driving of accused, it is pertinent to note that there is only one eye witness of the accident i.e., PW.3, though he stated that the Bus was being driven in a rash and negligent manner but he has not said anything about the manner of driving by the accused. So testimony being silent on this aspect, what was rash and negligent in the manner of driving by the accused has been completely left with the court to presume. In "Mohammed Aynuddin @ Miyam v. State of Andhra Pradesh 2000 Cri.L.J. 3508 a similar issue was before Hon'ble Supreme Court wherein a passenger while boarding, fell down and came under the rear wheels of the Bus. In that case the Hon'ble Supreme Court holding the driver not guilty, stated that : "An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case the driver has to explain how the accident happened without negligence on 12 C.C.No.5153/2019 his part. Merely because a passenger fell down from the bus while boarding the bus no presumption of negligence can be drawn against the driver of the bus."
It was further held in the same case that:
"When he (accused) moved the vehicle forward his focus normally would have been towards what was ahead of the vehicle. He is not expected to move the vehicle forward when passengers are in the process of boarding the vehicle. But when he gets a signal from the conductor that the bus can proceed he is expected to start moving the vehicle. Here no witness has said, (including the conductor), that the driver moved the vehicle before getting signal to move forward. The evidence in this case is too scanty to fasten him with criminal negligence. Some further evidence is indispensably needed to presume that the passenger fell down due to the negligence of the driver of the bus. Such further evidence is lacking in this case."
21. In the present case, as well there is no nothing from the side of prosecution about the signal given by the conductor of the bus to move the bus , the prosecution has not examined the conductor and none of the witness spoken about the role of the conductor. If that has been the case the charges has to be leveled against the conductor and not the driver. The evidence of PW2 and 3 are inconclusive to prove negligent or rash driving on the part of the accused driver, it simply proves the factum of accident. Further, the alleged eye witness cited by the prosecution did not inspire confidence. Admittedly, the accident took place when the Bus was full of passengers and none of the passengers had shouted 13 C.C.No.5153/2019 to stop the Bus after accident, but none of those passengers were made witness in this case. Had any of those passenger been cited as a witness and had appeared in the court for deposition, it would have helped this court in making a better appreciation of the facts and circumstances of the case.
22. Coming to the facts of the present case, the prosecution had to prove Rash and Negligent driving on the part of the accused for both offences u/s 279 IPC as well as 338 IPC to warrant conviction of the accused. But the above discussion clearly shows that the evidence against the accused is not conclusive and the prosecution has not been able to prove its case beyond reasonable doubt. 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. Therefore, in the circumstances of the case, as per the rules of criminal justice if any doubt arise about the commission of the act then such doubt shall be in favour of accused. The prosecution has failed to prove the alleged offence against the accused. Accordingly, the points under consideration are answered point No.1 & 2 IN THE NEGATIVE.
23. POINT No.3: In view of the above discussions and findings I proceed to pass the following;
14
C.C.No.5153/2019
ORDER
Acting U/s.255(1) of Criminal
Procedure code, the accused is hereby
acquitted of the offences alleged against him punishable U/s.279 & 338 of IPC.
The bail bonds of accused and surety bonds shall stands cancelled after the appeal period.
(Dictated to the Stenographer directly on computer, typed by her, corrected and then pronounced by me in the open Court this the 4 th day of May 2023).
(GAGAN M.R.) C/c. MMTC - VI, BANGALORE.
ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1 Mahesh PW.2 Mithil PW.3 Raghavendra PW.4 Rakesh Kumar PW.5 Prakash
LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1 Complaint Ex.P.2 Spot mahazar Ex.P.3 FIR Ex.P.4 Rough sketch 15 C.C.No.5153/2019 Ex.P.5 Notice U/s 133 of IMV Act Ex.P.6 Reply to the notice U/s 133 of IMV Act Ex.P.7 Wound Certificate Ex.P.8 IMV report LIST OF WITNESSES EXAMINED FOR ACCUSED: Nil LIST OF DOCUMENTS MARKED FOR ACCUSED: Nil (GAGAN M.R.) MMTC - IV, BANGALORE.