Bangalore District Court
State By P.I vs V.Venkatesh on 27 October, 2016
IN THE COURT OF METROPOLITAN MAGISTRATE
TRAFFIC COURT - V, BANGALORE.
PRESENT : GANAPATI BHAT
B.Sc. LL.B. (Spl). LL.M.
M.M.T.C - V, BENGALURU
DATED THIS 27th DAY OF OCTOBER 2016
C.C.No.1015 - 2010
COMPLAINANT : STATE BY P.I
HIGHGROUNDS TR. P.S.
BANGALORE.
// VS //
ACCUSED : V.VENKATESH.,
S/O.LATE.T.VADIVELU,
AGED ABOUT 40 YEARS,
NO.51, 3RD CROSS,
2ND MAIN ROAD,
IN FRONT OF MUNESHWARA
TEMPLE, LALBHAG ROAD,
BANGALORE - 27.
JUDGEMENT
This is case registered against the accused on the basis of the chare sheet submitted by the P.I. Highgrounds Tr. P.S. alleging the offences punishable u/Sec. 279-304(A) of the IPC.
2. The case of the prosecution in nutshell is as follows:
That on 07.07.2010 at about 11.00 p.m., the accused being driver of Bajaj Chetak scooter bearing No.KA-02-V- 133 drove the same in the rash and negligent manner in 2 C.C.No.1015 - 2010 VasanthNagar, 1st Main road, near Kodava Samacha. Due to the negligent act, the pillion rider of the accused motorcycle by name S.Gunashekar fell down from the scooter and sustained grievous injuries and he succumbed to the injuries on the way while he was shifting to the hospital. It is alleged against the accused that the accused failed to provide first aid to the injured and failed to inform about the accident to the nearest P.S. On the basis of the first information lodged by the C.W.13 P.S.I. has registered the case against the driver of the Bajaj Chetak Scooter bearing No.KA-021-V-133 alleging offences u/Sec.279-304(A) of IPC. After completion of the investigation P.I. has submitted the charge sheet against the accused alleging offence u/Sec. 279-304(A) of IPC.
3. After filing of the chargesheet it is noticed that the accused was released on police bail. After perusal of the chargesheet cognizance of the above said offence is taken against the accused and registered the case. Thereafter presence of the accused is secured by issuing summons and accused was released on bail. Copies of the prosecution papers were supplied to the accused. Substance of the accusation framed and read over to the 3 C.C.No.1015 - 2010 accused. The accused pleaded not guilty and claims to be tried. His plea recorded accordingly.
4. Thereafter the prosecution in order to prove the accusation leveled against the accused has got examined nine witnesses as P.W.1 to P.W.9 and in the evidence of the prosecution cases Ex.P.1 to Ex.P.9 documents is got marked.
5. After completion of the evidence of the prosecution, statement of the accused as required u/Sec. 313 of Cr.P.C. is recorded. The accused has denied the incriminating materials in the prosecution evidence. The accused did not choose to adduce defence evidence.
6. Heard Learned APP and Learned counsel for the accused. Perused the materials and evidence on record.
7. Now the points that arise for my consideration are as under:
1. Whether the prosecution proves beyond all reasonable doubts that the accused being the driver of the bajaj chetak scooter bearing No.KA-02-V-133 drove the same on the Vasanth nagar, 1st main road, near Kodava Samacha, in a rash or negligent manner as to endanger human life and dashed to the pillion rider of the accused motorcycle by name G.Gunashekar, thereby accused has committed offence under section 279 of IPC?4 C.C.No.1015 - 2010
2. Whether the prosecution proves beyond the reasonable doubt that on the above mentioned place, date and time accused drove the above said motorcycle in a rash or negligent manner and dashed to the pedestrian by name G.Gunashekar, due to which the pedestrian sustain grievous injuries and died on the way to hospital and accused has caused death of pedestrian not amounting to culpable homicide, thereby accused has committed the offence punishable under section 304(A) of IPC?
3. What order?
8. After hearing both sides and after appreciation of the evidence placed on record my findings on the above said points are as under:
Point No.1: In the NEGATIVE;
Point No.2: In the NEGATIVE;
Point No.3: As per final order
for the following:
:REASONS:
9. POINT NO. 1 and 2: Since these points are
inter connected with each other, hence they are taken together for consideration in order to avoid repetition.
10. The PW.1 in his examination-in-chief has deposed that on 07.07.2010 at 10.00., when the accused was driving his two wheeler vehicle, the pillion rider and 5 C.C.No.1015 - 2010 himself fell down on the road, because of the humps in the road both of them fallen down and further he has deposed that accused was moving in front of him and the CW.2. The Gunashekara was became unconscious and the accused also sustained injuries and the said Gunashekara was carried to the Mahaveer Jain Hospital and accused was riding the Bajaj Moped vehicle bearing registration No.KA.02.B.133 and further he has deposed that he has given the first information to the police and admitted the content of Ex.P.1 and on the next day police have called him and drawn the mahazar and he admitted the content of Ex.P.2. In the cross-examination on behalf of the accused he has deposed that "DgÉÆævÀgÀÄ ZÁ®£É ªÀiÁqÀÄwÛzÀÝ ªÁºÀ£À §eÁeï ZÉÃvÀPï ªÁºÀ£À DVgÀÄvÀÛzÉ. CzÀÄ ¨ÉæÃPï E®èzÁVvÀÄÛ"
Further he has deposed that "¸ÀzÀj ªÁºÀ£À £ÀªÀÄä ¸ÀA§A¢üPÀgÀ ªÁºÀ£À DVvÀÄÛ". Further he has deposed that C¥ÀWÁvÀzÀ°è DgÉÆævÀjUÉ ¸Àé®à UÁAiÀĪÁVvÀÄÛ". Further he has deposed that "£Á£ÀÄ ¦gÁå¢ PÉÆqÀ®Ä ºÉÆÃzÁUÀ DgÉÆævÀgÀÄ ¥ÉÇðøï oÁuÉAiÀÄ°è EzÀÝgÀÄ. £ÁªÀÅ ¦gÁå¢ PÉÆqÀ®Ä ¥ÉÇðøï oÁuÉUÉ ºÉÆÃzÀ £ÀAvÀgÀ DgÉÆævÀgÀÄ ¥ÉÇðøÀgï oÁuÉUÉ §AzÀgÀÄ". This witness is not clear about the speed of the two wheeler vehicle. Further, he has deposed 6 C.C.No.1015 - 2010 that "DgÉÆævÀgÀ ¨ÉÊPï gÀ¸ÉÛ vÀqÉ ªÉÄÃ¯É ºÉÆÃzÁUÀ DgÉÆævÀjUÉ ¨Áå¯É£ïì »rAiÀÄ®Ä DUÀzÉà EzÀÄÝzÀjAzÀ CªÀgÀÄ ©zÀÝgÀÄ. ¸ÀzÀj ¸ÀݼÀzÀ°è ªÀÄgÀUÀ¼ÀÄ EzÀÄÝzÀjAzÀ ¸ÀzÀj gÀ¸ÉÛ vÀqÉ PÁtÄwÛgÀ°®è" This kind of evidence shows that there was a hump in the accident spot and due to that hump accused lost their balance both have fallen on the road. This evidence is clearly contradictory to the prosecution case and further he has admitted that there was no break to the said vehicle and this witness has failed to deposed the speed of both the vehicles and what was the distance between his vehicle and the accused vehicle.
11. The PW.2 in his examination-in-chief has supported the case of the prosecution and he has been cross-examined. In the cross-examination on behalf of the accused he has deposed that "C¥ÀWÁvÀªÁzÀ ¸ÀzÀj gÀ¸ÉÛAiÀÄ°è gÀ¸ÉÛ vÀqÉ E®è. £Á£ÀÄ ¥ÀǪÀð¢AzÀ ¥À²ÑªÀÄzÀ PÀqÉUÉ §gÀÄwÛzÉÝ£ÀÄ. gÀ¸ÉÛAiÀÄ ¥ÁægÀA¨Às¢AzÀ gÀ¸ÉÛAiÀÄ PÉÆ£ÉAiÀĪÀgÉUÉ gÀ¸ÉÛAiÀÄ G§Äâ EzÉ. ¸ÀzÀj gÀ¸ÉÛAiÀÄ°è ¯ÉÊl£ï PÀA§ EzÉ. E§âgÀÆ DAiÀÄ vÀ¦à ©zÀÝgÀÄ. £À£Àß ªÀÄÄAzÉ §gÀÄwÛzÀÝ ªÁºÀ£À JµÀÄÖ ¹àÃr£À°è §gÀÄwÛvÀÄÛ UÉÆwÛ®è". This witness though supported the prosecution, failed to say about the light condition. Further, he has stated that there is no road humps in the accident spot, but the PW.1 says that there was a road 7 C.C.No.1015 - 2010 hump and because of the said road hump they fallen from the bike. But this witness said that there was no hump. The PW.1 and PW.2 have not stated anything about the speed of the vehicle. Further, there is a contradiction as to existence of the road hump in the evidence of PW.1 and PW.2.
12. The PW.3 and 4 are the panchas supported the case of the prosecution. But, they have not been cross- examined by the accused. But, they have deposed that there was a broken glass in the spot, but that broken glass was not seized and produced and marked in this case.
13. The PW.5 in his examination-in-chief has deposed that on 07.07.2010 when himself and CW.1 were moving towards the railway station, accused and deceased Gunashekar were moving in another motorcycle. At 9.00 am., said Gunashekar was fallen on the main road of the Vasanthanagara and he has further deposed that "DgÉÆævÀgÀÄ C¥ÀWÁvÀªÁzÁUÀ ªÉÆÃmÁgï ¸ÉÊPÀ¯ï£ÀÄß ¥sÁ¸ÁÖV ZÁ®£É ªÀiÁrzÀÝgÀÄ. AiÀiÁgÀ vÀ¦à¤AzÀ C¥À¥sÁvÀªÁVzÉ JAzÀÄ £À£ÀUÉ UÉÆwÛ®è. DgÉÆævÀgÀ ªÉÆÃmÁgï ¸ÉÊPÀ¯ï ¸ÀASÉå PÉJ.02.«.133 EvÀÄÛ. C¥ÀWÁvÀªÁzÁUÀ £Á£ÀÄ zÀÆgÀzÀ°è EzÉÝ£ÀÄ. C¥ÀWÁvÀªÀ£ÀÄß £Á£ÀÄ ¸ÀévÀB £ÉÆÃr®è" and he 8 C.C.No.1015 - 2010 has been cross-examined by the advocate for the accused. In the cross-examination he has admitted that the road was not in scientific manner and he admitted the content of Ex.D.1 to Ex.D.6 and Home Minister has given the statement that the road was not in scientific manner and going to remove all the humps in the road. If this evidence of PW.5 is read in consonance with evidence of CW.1, there is a major material contradiction arises as to whether the CW.1 and CW.2 were moving in one vehicle or not. The CW.1 deposed that when himself and CW.2 are moving in the motorcycle, then they saw the accident and the time of the accident is 11.00 am., but CW.2 deposed that when they were moving towards the railway station at about 9.00 a.m., they saw the body of the deceased - Gunashekara on the road, but he has very categorically stated that he has not seen the accident. The CW.1 and CW.2 have stated the time of accident in different manner. Further, CW.2 deposed that he has not seen the vehicle. Further, two hours difference is there between the time of accident deposed by CW.1 and CW.2. Further, the condition of the road is also admitted and in the further examination-in- chief by the learned APP he has admitted that there was a road hump.
9 C.C.No.1015 - 2010
14. The PW.6 in his examination-in-chief has supported the case of the prosecution but he has deposed that accused was the driver of the vehicle as on the date of accident and he admitted the content of Ex.P.4 and Ex.P.5.
15. The PW.7 in his examination-in-chief has deposed that on 12.07.2010 he has examined the scooter bearing its registration No.KA.02.V.133 as per the requisition of Highgrounds Traffic Police Station and admitted the content of Ex.P.6 and found no damages to the vehicle and opined that accident was not due to any mechanical defect of the vehicle and he has been cross- examined by the advocate for the accused.
16. The PW.8 in his examination-in-chief has deposed that on 08.07.2010 he has received the first information from CW.1 and lodged the FIR and sent it to the court and thereafter handed over the investigation to CW.14 and he has been cross-examined. In the cross- examination he has admitted that nobody have came with CW.1 and CW.1 has given written first information. From evidence, only fact of receiving the first information can be inferred.
10 C.C.No.1015 - 2010
17. The PW.9 in his examination-in-chief has deposed that on 08.07.2010 he has received the investigation paper from CW.13 and on the same day he conducted the inquest in the presence of CW.6 to CW.8 and handed over the body to the Post mortem and thereafter handed over the dead body to the legal heirs of the deceased. On the same day, he visited the spot and in the presence of CW.4 and CW.5 he has drawn the mahazar and sketch and recorded the statement of CW.2, CW.3 and CW.9 and issued notice section 133 of IMV Act and obtained the reply and arrested the accused and released him on bail. Further, he has deposed that after receiving the IMV report, wound certificate he has submitted the charge sheet to the court. In the cross-examination he has deposed that "C¥ÀWÁvÀPÉÆ̼ÀUÁzÀ ªÉÆÃmÁgï ¸ÉÊPÀ¯ïUÉ vÀgÀazÀ dRA DVvÀÄÛ. gÀ¸ÉÛAiÀÄ°è JqÀ§¢AiÀÄ°è PÉÆqÀªÀ ¸ÀªÀiÁdzÀ PÀqÉUÉ C¥ÀWÁvÀªÁVvÀÄÛ. C¥ÀWÁvÀªÁzÀ ¸ÀݼÀzÀ°è gÀ¸ÉÛ vÀqÉ E®è". If this evidence is read in consonance with PW.1 evidence, then major material contradiction arises as to existence of humps in the accident spot.
18. In the present case, the PW.1 is the complainant who deposed that the accident took place at 11 C.C.No.1015 - 2010 11.00 am., on the said date. Further, he has categorically stated that himself and CW.2 were moving towards the station in the bike and the accused and the deceased - Gunashekar were moving in another bike and when they reached the Vasanthanagara 1st cross, due to rash or negligent driving the motor bike of the accused fell down and both of them i.e, accused and the pillion rider were sustained injuries and the said Gunashekara was succumbed to injuries. Further, first information was given on the next day i.e., 08.07.2010 about 5.15 am. It is not explained that why they have not immediately gave the first information. Further, in the first information delay is not explained. The CW.2 has deposed that on 9.00 am., they have seen the body of the Gunashekar which was on the road. The CW.2 deposed that he has not seen the accident but he is mentioned as eye witness in this case. Further, CW.1 and CW.2 were moving in a bike but the CW.2 has not seen the accident. Further, regarding the presence of the hump also there is a contradiction in the depositions of CW.1 and CW.2 and the I.O in this case. The I.O deposed that there was no road hump, but CW.2 deposed that there was a hump and CW.1 stated that there was a hump and CW.1 stated that there was a hump at the 12 C.C.No.1015 - 2010 accident spot. Further, the PW.2 has deposed that he don't know the speed of the vehicle. The another very important aspect in this case is that there was no damage found on the scooter as per the deposition of PW.7 and Ex.P.6. But, according to the I.O - PW.9 there was a damage. This contradiction is also notable and material. The another very important thing in this case is that accident took place during night time. The learned counsel for the accused relied on two rulings. In first ruling i.e., K.Srinivas Vs. State of Karnataka reported in 2002 Crl.L.J.3865 in Para No.3, the Hon'ble High Court of Karnataka held "The contributory negligence in realm of torts may be an extenuating circumstances to migitate the liability to pay the damages but that cannot a sole decisive factor to avoid the liability of compensation. However, in criminal jurisprudence if the victim has also contributed for the causation of the accident by contributory negligence and in the absence of any material to show that only on account of rash and negligent driving of the accused driver the accident has occurred, it would not be permissible under such circumstances to hold the accused driver guilty of committing an offence under sections 279 and 304A of 13 C.C.No.1015 - 2010 IPC. Since, the contributory negligence of the victim or deceased affords as an intervening circumstances but for it the accident could not have happened. However, the law keeps a clear distinction between cases of composite negligence and contributory negligence in the cases of composite negligence, the drivers of both the vehicles would be guilty of rash and negligent driving. Whereas in a case of contributory negligence, no penal liability can be fastened on the accused/driver. Obviously for the reason that put for the contributory negligence the accident could not have occurred. In the instant case, there is no credible oral evidence to show that the bus was driven in rash and negligent manner at least to sustain a conviction under section 279 of the IPC. After all, the bus was proceeding on the middle of the road. The circle was still 50 ft. away from the place of impact. Under the circumstances, the speed of the bus cannot be a sole determinative factor to attribute rashness or negligence on the part of the driver of the bus. In that view of the matter, I find that both the trial court and the appellate court have gravely erred in appreciating the oral evidence which is totally contradictory with 14 C.C.No.1015 - 2010 the documentary evidence produced in the case." In the second ruling i.e., State Vs. Mohammed Yusuf reported in 2001 Crl.L.J.5 in Para No.4, the Hon'ble High Court of Karnataka held, "One needs to take into account the factors that on the highway, vehicles would legitimately be moving at a relatively high speed. The more important aspect is that on the highway the vehicles have right of way and if a person desires to cross the highway, the rules of the road require that the person would have to wait until the traffic has passed and only then embark on crossing the highway. It is a very familiar error committed by pedestrians even on the national highway that they saunter on to the road regardless of the movement of the traffic and if a person does a suicidal act of this type, then it would be impermissible for a court in situation of this type to hold the driver of the vehicle responsible for the consequences of the Act. I need to take into account one or two aspects submitted by the defence, the first of them being that the incident has taken place at night and we have no indications on the record as to what the light conditions were like. One may presume therefore that the light conditions were 15 C.C.No.1015 - 2010 relatively poor and in this background if the deceased, as often happens, alighted from the jeep and was impatient to get the other side of the road and made his way across the highway regardless of the oncoming vehicles, there is every possibility that he was the main contributory to the incident in question."
19. The ratios of the above rulings are amply applicable to the case in hand. Further, it is cardinal principal of law that in order to attract section 279 - 304(a) of IPC., the rash or negligent act of the accused should be proved beyond all reasonable doubt. That such act of rash or negligent act of the accused should be direct cause for the death of the accused. Here in this case, the eye witnesses produced i.e., CW.1, CW.2 and CW.3 are the self contradictory and they are contradictory to each other and there is a serious contradiction in their evidence. There is a serious contradiction as to fact of the existence of the hump in the road and the damages to the vehicle and the time of the accident. The sufficient light on the spot at the time of accident is established by the prosecution. The prosecution has not brought the sufficient evidence to prove the guilt of the accused and to convict the accused. In view of the above evidences and the discussions, this 16 C.C.No.1015 - 2010 court has come to the conclusion that prosecution has failed to prove the accusation leveled against the accused beyond reasonable doubts. Hence, Point No.1 and 2 are answered in the NEGATIVE.
20. Point No.3: For forgoing discussion and findings on point No.1 and 2, I proceed to pass the following:
ORDER Exercising powers u/Sec.255 (1) of the Cr.P.C., accused is hereby acquitted for the offences punishable u/Ss.279 and 304(A) of the IPC.
The bail bond of the accused stands cancelled. Accused set at liberty forthwith. (The judgment dictated to the Stenographer directly on computer, typed by him and corrected, signed and pronounced by me in the open court on this 27TH Day of October 2016) (GANAPATI BHAT) METROPOLITAN MAGISTRATE, TRAFFIC COURT- V, BANGALORE.
ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
P.W.1 Velumani.
P.W.2 Alibaba.
P.W.3 Ramegowda.
P.W.4 Puttaswamy.
17 C.C.No.1015 - 2010
P.W.5 Neelakanta.
P.W.6 Vijaykumar.
P.W.7 Chennabasappa.
P.W.8 Shivaswamy.
P.W.9 L.V.Tejasvi.
LIST OF DOCUMENTS MARKED FOR PROSECUTION Ex.P.1 Complaint.
Ex.P.1(a) Signature. Ex.P.2 Spot Mahazar. Ex.P.2(a) Signature. Ex.P.3 Sketch. Ex.P.2(b) Signature of PW.3. Ex.P.2(c) Signature of PW.4. Ex.P.4 & 5 Notice and reply u/Sec.133 of M.V.Act. Ex.P.4(a) & 5(a) Signature of PW.6. Ex.P.6 IMV report. Ex.P.6(a) Signature of PW.7. Ex.P.7 FIR. Ex.P.1(b) & 7(a) Signature of PW.8. Ex.P.8 Inquest. Ex.P.9 P.M. Report. Ex.P.2(b), 3(a) 4(b), 5(b), 6(b) 8(a) and 9(a) Signature of PW.9.
LIST OF WITNESSES EXAMINED AND DOCUMENTS MARKED FOR ACCUSED:
NIL (GANAPATI BHAT) METROPOLITAN MAGISTRATE, TRAFFIC COURT- V, BANGALORE.18 C.C.No.1015 - 2010 19 C.C.No.1015 - 2010