Bangalore District Court
State By Rajajinagar Traffic Police vs Sukhdeva Singh on 8 June, 2018
IN THE COURT OF THE LXIV ADDL.CITY CIVIL & SESSIONS
JUDGE (CCH-65) AT BENGALURU.
Dated this 8th day of June, 2018
-: P R E S E N T :-
Sri. MANJUNATH G.A.
B.A.L. LL.B.,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
(CCH-65), BENGALURU CITY.
SESSIONS CASE NO.1044/2015
COMPLAINANT:- State by Rajajinagar Traffic Police
Station, Bengaluru.
-Vs-
ACCUSED : Sukhdeva Singh,
S/o. Jeevan Singh,
Aged about 52 years,
Vill village, Badhshapur,
Gurgaon,
Hariyana.
1. Date of commission of offence : 16.12.2014
2. Date of report of offence : 16.12.2014
3. Date of arrest of the Accused : On 16.12.2014
4. Name of the complainant : Sri. Ramakrishnaiah
5. Date of recording evidence : 24.10.2016
2 S.C.No.1044/2015
6. Date of closing evidence : 13.6.2017
7. Offences complained of : U/Sec.279,304 I.P.C., and
U/s.185 M.V.Act
8. Opinion of the Judge : The accused is
Acquitted U/s. 235(1)
of Cr.P.C.
9. State represented by : Public Prosecutor
10. Accused defended by : Sri.Mahesh M.R.Advocate
JUDGMENT
The police attached to Rajajinagar Traffic Police Station have filed charge sheet against accused for the offences punishable U/s.279 and 304 I.P.C., and U/s.185 M.V.Act.
2. In brief the case of the prosecution is as follows; On 16.12.2014 at about 1.45 a.m., the accused after consuming alcohol, drove Lorry bearing Reg.No.HR-55-U-2144 near Kanteerava Studio Main Road, Nandini Layout, Bengaluru city in a rash or negligent manner and dashed against the pedestrian, aged about 45 years. The pedestrian sustained injuries to his head. He was shifted to M.S.Ramaiah Hospital. He succumbed to injuries on 3 S.C.No.1044/2015 the same day. Initially, Nandini Layout police had registered Cr.No.235/2014 for the offence punishable U/s.304 I.P.C. Same was transferred to Rajajinagar Traffic Police Station, Bengaluru and the case is re-registered in Cr.No.101/2014 for the offences punishable U/s.279 and 304 I.P.C., and U/s.185 M.V.Act.
3. The police have completed the investigation and filed charge sheet against the accused. The accused was arrested on the date of incident itself. Initially, he was released on bail, in view of the order passed by the learned Prl.City Civil and Sessions Judge, Bengaluru in Crl.Mis.No.7254/2014 dated 26.12.2014.
4. The Learned IV-MMTC., Bengaluru committed the case to Hon'ble Prl.City Civil and Sessions Judge, Bengaluru as the offence punishable U/s.304 I.P.C., is exclusively triable by Sessions Court. The Hon'ble Prl.City Civil and Sessions Judge has made over the case to this court, which is numbered as S.C.No.1044/2015.
5. My Predecessor-in-Office recorded charge against the accused on 28.3.2016 for the offences punishable U/s.279 and 304 4 S.C.No.1044/2015 I.P.C., and U/s. 185 M.V.Act. The accused pleaded not guilty and claimed for trial.
6. Prosecution got examined Pw.1 to 18 and got marked Ex.P.1 to Ex.P.14.
7. Thereafter the accused is questioned about the incriminating circumstances found against him as contemplated U/s.313 Cr.P.C. The accused denied the said evidence against him. He has not chosen to examine himself or any witness before the court.
8. I have heard arguments.
9. The points for my consideration are as follows:
1. Whether prosecution has proved that, the accused being the driver of Lorry bearing Reg.No.HR-55-U-2144 driven the same under intoxication at Kanteerava Studio Main Road, Nandini Layout, Bengaluru in a rash or negligent manner so as to endanger to human life on 16.12.2014 at about 1.45 a.m., and thereby committed an offence punishable U/s.279 I.P.C.?
2. Whether prosecution has proved that, on the above said date, time and place, 5 S.C.No.1044/2015 the accused while under intoxication continuing his rash or negligent driving dashed against a pedestrian and caused his death as contemplated U/s.304 I.P.C.?
3. Whether prosecution has proved that, on the above said date, time and place, the accused drove the Lorry by consuming alcohol, which is an offence punishable U/s.185 M.V.Act?
4. To what Order ?
10. My findings on the above points are as under:
Point No.1 : In Negative
Point No.2 : In Negative
Point No.3 : In Negative
Point No.4 : As per final order
for the following:
REASONS
11. POINTS NO.1 TO 3:- To avoid repetition of facts and for correct appreciation, the above points are taken together for discussion.
12. The accused/Sukhadev Singh S/o. Jeevan Singh is aged about 52 years as on the date of incident. Now he is aged about 55 years. He is resident of Badhshapur, Gurgaon, Hariyana. The 6 S.C.No.1044/2015 prosecution is expected to prove rash or negligent driving by the accused under intoxication. Further, the prosecution is also required to establish that, the 'act' of accused is culpable homicide not amounting to murder. Section 304 I.P.C., deals with culpable homicide not amounting to murder. In the first part of the said provision, if the 'act' by which death caused is done with intention of causing death, the imprisonment is for life or 10 years and fine. The second proviso to said provision deals with if the 'act' is done with knowledge that it is likely to cause death, but without any intention to cause death, the imprisonment is for 10 years or fine or both. Therefore, the prosecution is under obligation to establish that, the accused had intention of causing death of deceased/Thippeswamy in the case on hand. The prosecution to cover up second proviso of Section 304 I.P.C., is at least expected to prove that, the act of accused is with the knowledge to likely to cause death of deceased.
13. Keeping this position of law in mind, let me consider the evidence placed by the prosecution. Pw.1 is a retired P.S.I. As 7 S.C.No.1044/2015 on 15.12.2014, he was working as A.S.I., at Rajajinagar police station. While he was on night patrolling duty on 16.12.2014, at about 1.45 a.m., he received a call from police control that, an accident has occurred at Kanteerava Studio Main Road. He proceeded to the accident spot and noticed that, Lorry bearing Reg.No.HR-55-U-2144 had dashed pedestrian and was stationary. Lorry had run over the head of the pedestrian. The driver of the lorry was standing by the side of the lorry. Pw.1 sent the victim to M.S.Ramaiah Hospital in an auto rickshaw. He enquired the address and whereabouts of accused. He noticed that, the accused was breathing alcohol smell. Head Constable No.4232 informed to him over the phone that, victim died at hospital. Pw.1 took the accused to K.C.General Hospital for medical examination. The Medical officer, who examined the accused gave a report as per Ex.P.2 opining that, the accused breath smell of alcohol. He was cross-examined by the learned counsel for the accused. At para No.6, in the second line, he has stated that, he is not an eyewitness to the accident. In the same paragraph, he has deposed at about 2.30 a.m., he 8 S.C.No.1044/2015 received death intimation of victim/Thippeswamy. He has further deposed at about 4.30 a.m., he took the accused to K.C.General Hospital for medical examination.
14. Learned counsel for the accused cross-examined Pw.1 with regard to Ex.P.2, at page 7 of the cross-examination. Pw.1 admits that, the time of examination is not mentioned in Ex.P.2. He admits that, in Ex.P.2, there is no mention of the quantity of alcohol consumed by the accused. He further admits that, the name and address of the accused is not mentioned in Ex.P.2. He has stated that, the Medical Officer has not enquired him anything about the accused. He admits that, there is no mention about who had brought the accused to the hospital in Ex.P.2. Therefore, a doubt arises as to the very Ex.P.2 relied upon by the prosecution.
15. Pw.9, the Medical Officer, who according to the prosecution had examined the accused. In his chief-examination has deposed that, on 16.12.2014 (wrongly recorded as 12.6.2014) at about 5.35 a.m., accused was brought to the hospital by the police. He had examined the accused and issued Certificate as per Ex.P.7. 9 S.C.No.1044/2015 In Ex.P.7, it is stated that, breath smell of alcohol. It is further mentioned that, patient is conscious and oriented (patient referred to is accused). Pw.9 in his cross-examination admits that, he had not mentioned the details of the police in his report marked at Ex.P.7. According to him, a Police Constable had come to the hospital on the said day, whereas Pw.1 is the then ASI. On seeing Ex.P.7, Pw.9 has deposed that, he has not mentioned the history for bringing him before the hospital. He admits that, he has not mentioned the time of examination. According to him only on breath analysis, he has written Ex.P.7. In the next line, he has stated that, he has not personally tested the breath of accused. On the other hand, he has taken the help of 'D' Group employee. In the next line, he has deposed like this;
"¸ÀzÀj £ËPÀgÀ¸ÀÜ £À£ÀUÉ DgÉÆæ ªÀÄzÀå¸ÉêÀ£É ªÀiÁrgÀÄvÁÛ£É CAvÁ w½¹zÀ ªÉÄÃgÉUÀÉ £Á£ÀÄ ¤¦-7 £ÀÄß ¤ÃrzÉÝ."
Pw.9 has deposed that, only on the instruction given by 'D' Group employee, he has written Report as per Ex.P.7. It goes to show that, there was no proper examination of the accused about 10 S.C.No.1044/2015 his intoxication. The evidence of Pw.1 and Pw.9 is contradictory. It creates a doubt whether the accused has been really examined for intoxication on the date of accident?
16. Pw.13 is Head Constable of Rajajinagar Police station. In his evidence, he has deposed that, on 16.12.2014, on the order of his P.S.I., he took the accused to Victoria Hospital. According to him, the doctor at Victoria Hospital collected blood and urine samples of the accused. The same was sealed in a cover. Accordingly, he handed over the same to his Station House Officer. In his cross-examination, he has stated that, at about 9.30 a.m., he took the accused in an auto rickshaw, by 1.30 p.m., he returned to police station. Why there was second examination on the person of the accused is not made clear by the prosecution. Therefore, it is difficult to accept the evidence of Pw.13 and Pw.16. The evidence of Pw.13 and Pw.16 is against the evidence of Pw.1 and Pw.9. There are two versions from the side of prosecution about consumption of alcohol by the accused person. Initially, accused was brought before Pw.9. He has not chosen to collect blood and urine samples, 11 S.C.No.1044/2015 whereas, the Pw.16 collected samples and given a Report. Therefore, the court is of the opinion that, the prosecution has failed to establish that, the accused was under intoxication as on the date of accident.
17. Pw.2 and Pw.3 are the witnesses for spot mahazar marked at Ex.P.3. Their signatures are identified and separately marked. But they have given hostile evidence. Even during cross- examination by learned Public Prosecutor also, they have not supported the prosecution. Therefore, their evidence is not useful to the case of prosecution.
18. Pw.4 has even denied having given statement before police as per Ex.P.4. Pw.5 is projected as an eyewitness by prosecution. In his chief-examination itself, he has deposed that, he has not witnessed the accident. He came to the spot on information only after the accident. Even in cross-examination by learned Public Prosecutor, he maintained the same version. He also denied having given statement to the police as per Ex.P.5.
12 S.C.No.1044/2015
19. Pw.6 is an eyewitness for Inquest Mahazar, which is marked at Ex.P.6. Pw.7 is also an eyewitness for the Inquest Mahazar. Both have turned hostile. They maintained the same version even the in cross-examination also. During their cross- examination, they have denied the entire contents of Ex.P.6/Inquest Mahazar.
20. Pw.8 is the elder brother of deceased, who had information about the accident came to M.S.Ramaiah Hospital.
21. Pw.10 is the R.T.O., Officer, who has spoken about the Ex.P.8/M.V.A.Report. According to this Pw.10, the accident in question is not due to mechanical defects of the vehicle.
22. Pw.11 is the retired A.S.I., who has transmitted F.I.R., to the jurisdictional court. Pw.12 is the G.P.A. holder of the owner of Lorry, who has stated that, accused was the driver of the said lorry on the said date.
23. Pw.14 is the son-in-law of deceased. He also visited to M.S.Ramaiah Hospital, after receiving information by his relatives. Pw.15 is the Investigating Officer. In the case on hand, the 13 S.C.No.1044/2015 prosecution has failed to establish that, the accused has committed the 'act' with an intention to cause death of deceased. In other words, the prosecution has failed to bring the present case to two of the circumstances enumerated U/s.304 I.P.C. Accordingly, points are answered in negative.
24. POINT NO.4: In view of my findings on the above points, I proceed to pass the following:
ORDER Accused is acquitted U/s.235(1) of Cr.P.C of the offences punishable U/s.279 and 304 I.P.C. and U/s.185 M.V.Act.
Bail bond and surety bonds executed by accused earlier, shall be in force for a period of six months from this day, in view of 437-A of Cr.P.C., (Dictated to the Judgment writer, script typed by her and corrected, signed and then pronounced by me in the open court on this 8th day of June, 2018.) (MANJUNATH G.A.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.14 S.C.No.1044/2015
ANNEXURE I. List of witnesses examined on behalf of the Prosecution:-
Pw.1 Ramakrishnaiah Pw.2 P.Muniswamy Pw.3 D.Chandrashekar Pw.4 K.Rudresh Pw.5 Venkatesh Pw.6 Asiff Pw.7 Siddappa Pw.8 Venkatesh Pw.9 Dr.J.Mohan Pw.10 Chandrashekhar Pw.11 K.Nanjappa Pw.12 Sandeepkumar Pw.13 P.Maregowda Pw.14 S.N.Nagarjuna Pw.15 Victor Syman Pw.16 Dr.R.Jagadeesha Pw.17 Dr.Gundamma Patil Pw.18 Dr.S.Praveen II. For Defence:- - Nil-
III. List of exhibits marked on behalf of the Prosecution side:-
Ex.P.1 Complaint Ex.P.1(a) Signature of Pw.1 Ex.P.2 Certificate issued by K.C.General Hospital Ex.P.3 Mahazar Ex.P.3(a) Signature of Pw.2 Ex.P.3(b) Signature of Pw.3 15 S.C.No.1044/2015 Ex.P.4 Statement of Pw.4 Ex.P.5 Statement of Pw.5 Ex.P.6 Inquest Mahazar Ex.P.6(a) Signature of Pw.6 Ex.P.6(b) Signature of Pw.7 Ex.P.7 M.L.C.Report Ex.P.7(a) Signature of Pw.7 Ex.P.8 M.V.A.Report Ex.P.8(a) Signature of Pw.10 Ex.P.9 F.I.R. Ex.P.9(a) Signature of Pw.11 Ex.P.10 Reply to Section 133 of M.V.Act Ex.P.11 G.P.A. Ex.P.12 F.I.R. Ex.P.12(a) Signature of Pw.15 Ex.P.13 P.M.Report Ex.P.13(a) Signature of Pw.15 Ex.P.14 F.S.L. Report Ex.P.14(a) Signature of Pw.17 For Defence side:- -Nil- IV. List of material objects marked:- -Nil- (MANJUNATH G.A.)
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY