Bangalore District Court
State By Upparpet Traffic Police ... vs Suresh S/O Kempanna on 15 September, 2015
IN THE COURT OF THE METROPOLITAN MAGISTRATE
TRAFFIC COURT- II BENGALURU.
DATED THIS THE 15TH DAY OF SETEMBER 2015
Present: Sri. Rajendra Kumar. K.M.
LLM. M Phil,
Metropolitan Magistrate,
Traffic Court-II, Bengaluru.
C.C. No. 11/2014
Complainant: State by Upparpet Traffic Police Station,
Bangalore.
(Represented by: Sr. APP)
V/s
Accused:- Suresh S/o Kempanna, aged; 34 Yrs, Token No.
10324, BMTC 26th Depot, Yeshawanthapura,
Bengaluru.
Driver of BMTC Bus no. KA 01 F 3887.
(Represented by Sri. DK, Advocate)
1. Date of commission of offence: 26.6.2013
2. Offences alleged against accused : U/sec. 279, 338 of IPC
and 187 r/w 134 (a
&b) of IMV Act.
3. Date of recording of evidence: 27.11.2014
4. Date of Judgment: 15.9.2015
JUDGMENT
This case emanates from the charge sheet filed by Police Inspector of Upparpet Traffic P.S. against the accused alleging that he has committed the offence punishable U/sec. 279, 338 of IPC and 187 r/w 134 (a & b) of IMV Act.
2 CC 11/20142. The brief case of the prosecution is that;
It is the case of the prosecution that on 26.6.2013 at about 8-30 p.m. the accused being the driver of BMTC bus no. KA 01 F 3887 drove the same on TB road, near Ganesha temple in a rash and negligent manner so as to endanger the human life and dashed against pedestrian CW-1 who was crossing the road from east towards west direction. Due to the impact CW-1 fell down and front left wheel of the bus ran over on his left leg and suffered grievous injuries and after the accident the accused did not gave first aid to the injured nor informed the same to nearest police station. Thereby the accused has committed the offences punishable U/sec. 279, 338 of IPC and 187 r/w 134 (a & b) of IMV Act.
3. The record discloses that accused person was released on court bail.
4. On receipt of charge sheet this court has taken cognizance of the offences U/sec. 190 of Cr.P.C.
5. Acting U/sec. 207 of Cr.P.C. all the copies of prosecution papers were furnished to the counsel for the accused. Since, there are grounds for presuming that the accused person has committed the offences triable by this court, this court proceeded to frame the substance of accusation. The accused person pleaded not guilty and claimed to be tried. Therefore, the matter was posted for recording the evidence of prosecution.
6. For the proof of the case, the prosecution has examined 6 witnesses out of 7 witnesses and got exhibited 3 CC 11/2014 documents as per Ex.P.1 to Ex.P.9. The CW. 6 is dropped with consent.
7. Since, there was incriminating evidence, the statement of the accused person U/sec. 313 of Cr.P.C. was recorded. The case of the accused is that of total denial and further submits that the accident was not happened from his bus.
8. I have heard both sides.
9. Now the points that arise for my consideration are as follows:
1. Whether prosecution proves beyond all reasonable doubt that on 26.6.2013 at about 8-30 p.m. the accused being the driver of BMTC bus no. KA 01 F 3887 drove the same on TB road, near Ganesha temple in a rash and negligent manner so as to endanger the human life and dashed against pedestrian CW-1 who was crossing the road from east towards west direction. 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, Due to the impact CW-1 fell down and front left wheel of the bus ran over on his left leg and suffered 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, 4 CC 11/2014 after the accident the accused did not gave first aid to the injured nor informed the same to nearest police station and thereby the accused has committed an offence punishable U/sec. 187 r/w 134 (a & b) of IMV Act?
4. What Order?
10. Now, my findings to the above points are as follows:
Point Nos.1 to 4 : Negative Point No. 5: As per order, for the following:
REASONS
11. Point Nos. 1 to 4 :- It is well laid that in a criminal case the entire burden of proof rest upon the prosecution and the accused need prove nothing. Suffice for the accused to create doubt about the case of the prosecution and the reliability of the witnesses for prosecution. With this background, I proceed to discuss the evidence available on record.
12. It is the case of the prosecution that on 26.6.2013 at about 8-30 p.m. the accused being the driver of BMTC bus no. KA 01 F 3887 drove the same on TB road, near Ganesha temple in a rash and negligent manner so as to endanger the human life and dashed against pedestrian CW-1 who was crossing the road from east towards west direction. Due to the impact CW-1 fell down and front left wheel of the bus ran over on his left leg and suffered grievous injuries and after the accident the accused did not gave first aid to the injured nor informed the same to nearest police station. Thereby the accused has committed the offences punishable U/sec. 279, 338 of IPC and 187 r/w 134 (a & b) of IMV Act.
5 CC 11/201413. In order to prove the case of the prosecution, the prosecution got examined the PW-1 who is first informant deposes that on 26.6.2013 he was proceeding on TB road from left side, at that time one bus no. KA 01 F 3887 suddenly came from his behind and dashed against his left leg. Due to the impact, he fell down and front left wheel of the bus ran over on his left leg and he suffered grievous injuries and was shifted to hospital by the ambulance and also he took treatment at Ramaiah hospital about 2 months as an in- patient. The PW-1 further deposes that the police have visited the hospital and recorded his statement and deposes that the accident had happened due to negligent driving of the bus driver and accused before court was the driver of the offending bus. The PW-1 further deposed that he has not witnessed the accused person clearly after the accident. The PW-1 however identified the accused before court and the said first information lodged by him is marked as Ex.P.1 and his signature is marked at Ex.P.1 (a).
14. On reading the examination-in-chief of PW-1 who is injured and first informant, the said evidence itself makes it clear that the witness has not seen the offending bus driver clearly.
15. The learned counsel for the accused has cross- examined the PW-1 wherein he has admitted that Ex.P.1 is written by the inspector while he was in ICU. It means there is no chance to read over the contents of the Ex.P.1 to the PW-1. The PW-1 further admits that there was no zebra crossing at the spot of the accident. The PW-1 further admits that there is 6 CC 11/2014 no mention in the Ex.P.1 that he has seen the driver and that he will identify the driver in the near future.
16. The PW-2 who is an eye witness deposes that on 26.6.2013 at about 8-15 to 8-30 p.m. on TB road near Ganesha temple he was standing to cross the road, at that time one BMTC bus came in high speed and front left side of the bus dashed against CW-1 and he fell down and front left side wheel of the bus ran over on the leg of the CW-1 and he became unconscious. The PW-2 further deposes that the registration number of the offending bus is KA 01 F 3887 and injured was shifted to Victoria hospital and accused before court was the driver of the offending bus. The PW-2 further deposes that on 2.7.2013 the police have conducted spot mahazar as per Ex.P.2 and took his signature and same is marked at Ex.P.2 (a).
17. The learned counsel for the accused has cross- examined the PW-2 wherein he admits that the injured and himself were standing at the zebra crossing to cross the road. This part of evidence is contradictory to the evidence of PW-1 who admits that there was no zebra crossing at the spot of the accident. I have carefully gone through the Ex.P.8 rough sketch wherein it appears there is no mention of zebra crossing in the said road.
18. The PW-3 who is IMV inspector deposes that on 12.7.2013 at the request of P.S.I, Upparpet Tr. Police station he inspected the BMTC bus no. KA 01 F 3887 and issued report as per Ex.P.3 and his signature is marked at Ex.P.3 (a) 7 CC 11/2014 and he opined that the accident was not happened due to any mechanical defects of the offending vehicle.
19. The learned counsel for the accused has cross examined the PW-3, wherein nothing has been elicited from the mouth of this witness which is useful to the case of the accused person.
20. The PW-4 is spot mahazar witness who deposes that on 24.6.2013 at about 8-20 p.m. he was standing near Ganesha temple at that time one bus came from Malleshwaram and dashed against one person and front wheel of the said bus ran over on the left leg of the said person and the injured was shifted to Victoria hospital. The PW-4 further deposes that the registration number of the offending bus is 3887 and accident had happened due to the fault of said bus driver who came in high speed. The PW-4 further deposes that on 2.7.2013 the police have conducted spot mahazar at the spot as per Ex.P.2 and his signature is marked at Ex.P. 2 (b).
21. The PW-4 is also turned hostile to the prosecution case. During the course of cross-examination of this witness by the learned Sr. APP, nothing has been elicited from the mouth of this witness so as to hold that he is deposing falsely in order to help the accused person. The statement of the witness is marked at Ex.P.4.
22. The learned counsel for the accused cross-examined the PW-4 wherein he clearly admits that he has not seen the place where exactly the pedestrian was crossing the road. Further, the PW-4 feigned his ignorance so as to state as to where exactly the bus was coming from the edge of the foot path. The PW-4 further admits that after hearing the sound he 8 CC 11/2014 went to the spot of the accident. On careful reading of the evidence of PW-4, it is very much clear that the said PW-4 is planted witness and he was not present at the spot of the accident when the alleged accident took place. The evidence of PW-4 in any manner do not inspire the confidence of court.
23. The PW-5 is ATS deposes that on 26.6.2013 the Upparpet police have issued 133 notice as per Ex.P.5 with respect to the accident by the bus no. KA 01 F 3887 and he gave reply as per Ex.P.6 to that effect and his signatures are marked at Ex.P. 5 (a) & 6 (a) respectively. On the date of accident, one K. Suresh, token no. 10324 was the driver and Srinivas token no. 12019 was the conductor and accused before court was the driver of the offending bus.
24. The learned counsel for the accused has cross examined the PW-5, wherein nothing has been elicited from the mouth of this witness which is useful to the case of the accused person.
25. The PW-6 is the PSI who has investigated the case has supported the case of the prosecution to the extent that on 28.6.2013 he received the information about the accident and immediately he rushed to the hospital and came to know that the injured was unconscious. Again on 1.7.2013 he went to the hospital and in presence of doctor he recorded the statement of injured and on its basis, he registered the case in Cr. No. 28/13 and sent FIR to the court and his superior officers. FIR is marked at Ex.P.7 and his signature at Ex.P.7
(a) and he visited the spot and drawn spot mahazar in presence of panch witnesses and prepared rough sketch which are marked at Exs.P. 2 & 8 respectively. The signatures 9 CC 11/2014 marked at Exs.P.2 (c) & 8 (a) respectively. Then he got issued notice u/sec. 133 of IMV Act to supervisor of BMTC authorities as per Ex.P.5 and received reply as per Ex.P.6 and his signatures are marked at Ex.P.5 (b) and 6 (b) respectively and he arrested the accused and released on bail. The PW-6 further deposes that on 12.7.2013 he gave requisition to IMV inspector to inspect the offending vehicle and obtained IMV report and Wound certificate as per Exs.P.3 & 9 and his signatures marked at Exs.P. 3 (b) and 9 (a) respectively and on conclusion of investigation he filed the charge sheet against the accused.
26. The learned counsel for the accused has cross examined the PW-6 wherein the PW-6 admits that there is no mention in the first information that the first informant was unconscious at the time of recording his statement. The PW-6 further admits that there is no mention in first information that the injured had witnessed the driver who caused the accident. It is also admitted by the PW-6 that there is no mention in the first information that the first informant will identify the driver in nearby future. The PW-6 further admits that there is no mention of zebra crossing in the Ex.P.8 rough sketch. The PW-6 further admits that as per Ex.P.8, the accident is not happened infront of Ganesha temple.
27. On marshalling entire evidence and on meticulous perusal of the documentary proof, it appears that PW-1 who is injured and first informant was unconscious and was in ICU while recording the first information. However, the prosecution failed to mention that whether the PW-1 was in a fit condition to give statement before the police. The prosecution should 10 CC 11/2014 have been recorded the statement of the PW-1 in the presence of doctor. The PWs. 1 & 6 who are the first informant and I.O. have categorically admitted that there is no zebra crossing at the spot of the accident. It means, the injured in this case has contributed his part of negligence to the accident. The I.O. has admitted before this court that the accident had not happened infront of Ganesha temple as per rough sketch. However, the other eye witnesses have deposed before this court that accident had happened infront of Ganesha temple. The evidence of PW-6 is contrary to the evidence of eye witnesses. The identification of accused is in dispute as the PW-1 has not clearly identified the accused person. Further I have carefully gone through the log sheet wherein it appears that earlier the name of the driver was mentioned as Murthy. B.S., later on the name of the driver has over written and mentioned as K. Suresh who is none other than the present accused. The said change also creates some doubt in the mind of the court as to the genuineness of the prosecution case. The panch witnesses have not fully supported the case of the prosecution. It appears that the PW-1 was also negligent while crossing the road. It is well settled principle of law that only on the basis of the evidence of official witnesses, no conviction can be given to the accused. Hence, I am of the opinion that in this case there is no rash and negligent driving of the accused person. Having regard to the facts and circumstances of this case, this court is of the firm opinion that the benefit of doubt shall be extended to the accused person holding that prosecution is unable to bring home the guilt of accused beyond all 11 CC 11/2014 reasonable doubt. The defence side has successfully created doubt in the case of the prosecution.
28. Thus, the evidence made available by the prosecution falls short of legal evidence to establish the accusations or charges leveled against the accused person. Thus, under the above circumstances, I am of the clear opinion that the prosecution has failed to bring home the guilt of accused person beyond all shadow of doubt. Hence, I am of the firm opinion that this is a fit case wherein benefit of doubt can be given to accused person. Hence, I answer the above points in the negative.
29. Point No.3: In view of the discussions made by me in the above points, I proceed to pass the following:-
ORDER Acting U/sec. 255(1) of Criminal procedure code, the accused is hereby acquitted of the offences alleged against him punishable U/sec. 279, 338 of IPC and 187 r/w 134 (a&b) of IMV Act.
The accused person is set at liberty. His bail bond stands cancelled after the period of six months.
(Dictated to the stenographer, transcribed and typed by her, corrected and then pronounced by me in the open court on this the 15th day of September 2015).
(Rajendra Kumar. K.M) M.M.T.C-II, Bengaluru.12 CC 11/2014
ANNEXURE List of witnesses examined for Prosecution:-
PW-1 B.M. Chandrashekar PW-2 Vijay Kumar PW-3 Rajendra Shankarappa Barigidada PW-4 B.R. Nagesh PW-5 D.N. Jayashankar PW-6 Sudhindra
List of documents marked for Prosecution:
Ex.P.1: First information Ex.P.1 (a & b) Signature of PWs 1 & 6 Ex.P.2 Spot mahazar Ex.P.2 (a to c) Signatures of PWs. 2, 4 & 6 Ex.P.3 IMV report Ex.P.3 (a & b) Signatures of PWs. 3 & 6 Ex.P.4 Further statement of PW-4 Ex.P.5 Copy of 133 notice Ex.P.5 (a & b) Signature of PWs-5 & 6 Ex.P.6 Reply Ex.P.6 (a &b) Signature of PWs 5 & 6 Ex.P.7 FIR Ex.P.7 (a) Signature of PW-6 Ex.P.8 Rough sketch Ex.P.8 (a) Signatures of PW 6 Ex.P.9 Wound certificate Ex.P.9 (a) Signature of PW6
List of witnesses examined for defence side:-
Nil.13 CC 11/2014
List of documents marked for defence side: Nil (Rajendra Kumar. K.M) M.M.T.C-II, Bengaluru.14 CC 11/2014
Orders vide separate Order sheet ORDER Acting U/sec. 255(1) of Criminal procedure code, the accused is hereby acquitted of the offences alleged against him punishable U/sec. 279, 338 of IPC and 187 r/w 134 (a&b) of IMV Act.
The accused person is set at liberty. His bail bond stands cancelled after the period of six months.
(Rajendra Kumar. K.M) M.M.Tr.Ct-II, B'lore.