Bangalore District Court
State By Jayanagar Traffic P.S vs ) Ramesh S/O. Lakshmipathi on 13 July, 2018
IN THE COURT OF THE METROPOLITAN MAGISTRATE
TRAFFIC COURT - IV, BANGALORE
PRESENT: GAYATHRI.S.KATE, B.com.,LLB.,
MMTC - IV, BANGALORE
DATED : THIS THE 13TH DAY OF JULY 2018
C.C.No.4635/2017
COMPLAINANT: State by Jayanagar Traffic P.S.
VS.
ACCUSED: 1) Ramesh S/o. Lakshmipathi,
Age: 40 years,
R/at Gollapalli village,
Palekere Post, Chithuru Hobali,
Bagepalli Taluk,
Chickaballapura
2) Mahadev Prakash Y.V.,
S/o. Vijendrappa,
Age: 47 years,
Token No.7792, 13th Depot,
Katharaguppa Depot,
B.M.T.C., Vivekananda Nagar,
Kanakapura Town,
Ramanagar District
1. The date of commission of 22-12-2016
the offence
2. The offences complained of U/s.279 & 304(A) of IPC.
3. Plea of the accused and his Pleaded not guilty
examination
4. Opinion of the judge Accused No.1 is convicted for the
offence punishable U/s.279 of IPC.
2 C.C.No.4635/17
5. State represented by Learned APP
6. Accused defence by Sri M.R. Harish Kumar
7. Date of order 13-07-2018
***
JUDGEMENT
The Police Inspector of Jayanagar Traffic police station has filed the charge sheet against the accused for the offences punishable U/s.279 & 304(A) of IPC.
2. It is the case of the prosecution that on 22-12-2016 between 3.30 to 3.35 a.m. one unknown Volvo bus driver has drove his vehicle in a rash and negligent manner while taking his vehicle in a reverse direction on Jayanagar 4th Block, 10th Main road, at 33rd cross junction, hit against a pedestrian and has absconded along with his vehicle. Due to the impact of accident the said pedestrian sustained grievous injuries to his hands and legs and was taken to Mamatha hospital in 108 Ambulance for first aid. Later the injured was taken to Victoria hospital for higher treatment. Upon the MLC memo received by Victoria hospital the complainant police have registered suo moto complaint U/s.279 & 337 of IPC, Sec.134(A & B) of M.V.Act. But the injured 3 C.C.No.4635/17 succumbed to the injuries on 23-12-2016 at about 9.30 a.m. in Victoria hospital. Upon the death memo received by Doctor of Victoria hospital the I.O. in the said case has adopted Sec.304(A) of IPC during his investigation. During the course of investigation the complainant police have gathered information about occurrence of accident. Later the complainant police have enquired about the person who has admitted the injured to hospital and who has called the 108 ambulance vehicle and collected their phone numbers and came to know that one Shrikanth and Asmith have shifted the injured to Mamatha hospital. Upon the request of injured person the said Shrikanth and Asmith had called Chinnaswamy and informed that the injured has met with an accident. When Chinnaswamy came to hospital, in the presence of Chinnaswamy and one Anand the injured has given information about occurrence of accident stating that one Volvo bus came in reverse direction and ran over his legs and driver of the said bus escaped from the spot. This information given by injured is supported by statements given by Anand, Chinnaswamy and Asmith. Later the complainant police visited the Kandala jewelers and gathered the 4 C.C.No.4635/17 CCTV footage installed in the said jeweller shop. On viewing of said CCTV footage it was noted that one white colored Volvo bus came in reverse direction between 3.30 to 3.35 a.m. But the registration number of the said vehicle was not clearly shown in the said CCTV footage. Upon collecting the information that one white coloured Volvo bus is responsible for causing accident in reverse direction on accident spot the complainant police visited the BMTC establishment and gathered GPS information regarding the buses traveled in accident spot at said time on the day of accident. On perusal of the GPS information it was clear during the investigation that Volvo bus bearing registration No.KA-57/F-0319 is responsible for causing the said accident. One Ramesh was the driver of the said Volvo bus and has admitted the said thing by giving his voluntary statement before complainant police stating that he has drove the said bus in reverse direction and then he returned through 33rd cross and the driver Ramesh has further admitted that the bus displayed in CCTV footage is the same bus which he has drove on the day of accident. The said voluntary statement of driver Ramesh is substantiated by the conductor of 5 C.C.No.4635/17 the said bus by name Y.N. Mahadev Prakash. The complainant police have conducted about investigation and has filed Charge Sheet stating that by the negligent drive of the driver Ramesh (TokenNo.12550) of the Volvo bus bearing registration No.KA-57/F-0319 the said accident has occurred and the injured was succumbed to the injuries due to the said accident. Further it is stated in Charge Sheet that the conductor of the Volvo bus i.e., Madeva Prakash Y.V. (Token No.7792) has shown negligence in discharging his duty as he has not got down from bus and has not given information to the driver while driver was taking reverse direction of the said Volvo bus, thereby the accused No.1 & 2 have committed an offence punishable U/s.279 & 304(A) of IPC.
3. Cognizance was taken by perusing the prosecution papers and materials, the accused on receipt of summons appeared before the court and got themselves 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 6 C.C.No.4635/17 them, accused pleaded not guilty and claimed to be tried.
4. During the course of trial the prosecution has examined 8 witnesses as P.W.1 to P.W.8 and got marked 13 documents as Ex.P.1 to Ex.P.13. The statement of accused as per Sec.313 of Cr.P.C. was recorded the accused had no explanation and they denied the incriminating circumstances appearing against them, they have not chosen to lead the defence evidence.
5. Heard arguments on both sides and perused the records carefully.
6. The point that arise for my determination is as under:
1. Whether the prosecution proves beyond all reasonable doubt that on 22-12-2016 between 3.30 to 3.35 a.m. one unknown Volvo bus driver has drove his vehicle in a rash and negligent manner while taking his vehicle in a reverse direction on Jayanagar 4th Block, 10th Main road, at 33rd cross junction, hit against a pedestrian and has absconded along with his vehicle. Due to the impact of accident the said pedestrian sustained grievous injuries to his hands and legs and was taken to Mamatha hospital in 108 Ambulance for first aid. Later the injured was taken to Victoria hospital for higher treatment. Upon the MLC memo 7 C.C.No.4635/17 received by Victoria hospital the complainant police have registered suo moto complaint U/s.279 & 337 of IPC, Sec.134(A & B) of M.V.Act. But the injured succumbed to the injuries on 23-
12-2016 at about 9.30 a.m. in Victoria hospital. Upon the death memo received by Doctor of Victoria hospital the I.O. in the said case has adopted Sec.304(A) of IPC during his investigation. During the course of investigation the complainant police have gathered information about occurrence of accident. Later the complainant police have enquired about the person who has admitted the injured to hospital and who has called the 108 ambulance vehicle and collected their phone numbers and came to know that one Shrikanth and Asmith have shifted the injured to Mamatha hospital. Upon the request of injured person the said Shrikanth and Asmith had called Chinnaswamy and informed that the injured has met with an accident. When Chinnaswamy came to hospital, in the presence of Chinnaswamy and one Anand the injured has given information about occurrence of accident stating that one Volvo bus came in reverse direction and ran over his legs and driver of the said bus escaped from the spot. This information given by injured is supported by statements given by Anand, Chinnaswamy and Asmith. Later the complainant police visited the Kandala jewelers and gathered the CCTV footage installed in the said jeweller shop. On viewing of said CCTV footage it was noted that one white colored Volvo bus came in reverse direction between 3.30 to 3.35 a.m. But the registration number of the said vehicle was not 8 C.C.No.4635/17 clearly shown in the said CCTV footage. Upon collecting the information that one white coloured Volvo bus is responsible for causing accident in reverse direction on accident spot the complainant police visited the BMTC establishment and gathered GPS information regarding the buses traveled in accident spot at said time on the day of accident. On perusal of the GPS information it was clear during the investigation that Volvo bus bearing registration No.KA-57/F-0319 is responsible for causing the said accident. One Ramesh was the driver of the said Volvo bus and has admitted the said thing by giving his voluntary statement before complainant police stating that he has drove the said bus in reverse direction and then he returned through 33rd cross and the driver Ramesh has further admitted that the bus displayed in CCTV footage is the same bus which he has drove on the day of accident. The said voluntary statement of driver Ramesh is substantiated by the conductor of the said bus by name Y.N. Mahadev Prakash. The complainant police have conducted about investigation and has filed Charge Sheet stating that by the negligent drive of the driver Ramesh (TokenNo.12550) of the Volvo bus bearing registration No.KA-57/F-0319 the said accident has occurred and the injured was succumbed to the injuries due to the said accident. Further it is stated in Charge Sheet that the conductor of the Volvo bus i.e., Madeva Prakash Y.V. (Token No.7792) has shown negligence in discharging his duty as he has not got down from bus and has not given information to the driver while 9 C.C.No.4635/17 driver was taking reverse direction of the said Volvo bus, thereby the accused No.1 & 2 have committed an offence punishable U/s.279 & 304(A) of IPC?
2. What order?
7. My answer to the above points are as under:
1. POINT NO.1: PARTLY IN AFFIRMATIVE
2. POINT NO.2: AS PER THE FINAL ORDER For the following REASONS
8. POINT No.1: It is the case of the prosecution that on 22-12-2016 between 3.30 to 3.35 a.m. one unknown Volvo bus driver has drove his vehicle in a rash and negligent manner while taking his vehicle in a reverse direction on Jayanagar 4th Block, 10th Main road, at 33rd cross junction, hit against a pedestrian and has absconded along with his vehicle. Due to the impact of accident the said pedestrian sustained grievous injuries to his hands and legs and was taken to Mamatha hospital in 108 Ambulance for first aid. Later the injured was taken to Victoria hospital for higher treatment. Upon the MLC memo received by Victoria hospital the complainant police have registered suo moto complaint U/s.279 & 337 of IPC, Sec.134(A & B) of 10 C.C.No.4635/17 M.V.Act. But the injured succumbed to the injuries on 23-12-2016 at about 9.30 a.m. in Victoria hospital. Upon the death memo received by Doctor of Victoria hospital the I.O. in the said case has adopted Sec.304(A) of IPC during his investigation. During the course of investigation the complainant police have gathered information about occurrence of accident. Later the complainant police have enquired about the person who has admitted the injured to hospital and who has called the 108 ambulance vehicle and collected their phone numbers and came to know that one Shrikanth and Asmith have shifted the injured to Mamatha hospital. Upon the request of injured person the said Shrikanth and Asmith had called Chinnaswamy and informed that the injured has met with an accident. When Chinnaswamy came to hospital, in the presence of Chinnaswamy and one Anand the injured has given information about occurrence of accident stating that one Volvo bus came in reverse direction and ran over his legs and driver of the said bus escaped from the spot. This information given by injured is supported by statements given by Anand, Chinnaswamy and Asmith. Later the complainant police visited the 11 C.C.No.4635/17 Kandala jewelers and gathered the CCTV footage installed in the said jeweller shop. On viewing of said CCTV footage it was noted that one white colored Volvo bus came in reverse direction between 3.30 to 3.35 a.m. But the registration number of the said vehicle was not clearly shown in the said CCTV footage. Upon collecting the information that one white coloured Volvo bus is responsible for causing accident in reverse direction on accident spot the complainant police visited the BMTC establishment and gathered GPS information regarding the buses traveled in accident spot at said time on the day of accident. On perusal of the GPS information it was clear during the investigation that Volvo bus bearing registration No.KA-57/F-0319 is responsible for causing the said accident. One Ramesh was the driver of the said Volvo bus and has admitted the said thing by giving his voluntary statement before complainant police stating that he has drove the said bus in reverse direction and then he returned through 33rd cross and the driver Ramesh has further admitted that the bus displayed in CCTV footage is the same bus which he has drove on the day of accident. The said voluntary statement of 12 C.C.No.4635/17 driver Ramesh is substantiated by the conductor of the said bus by name Y.N. Mahadev Prakash. The complainant police have conducted about investigation and has filed Charge Sheet stating that by the negligent drive of the driver Ramesh (TokenNo.12550) of the Volvo bus bearing registration No.KA-57/F-0319 the said accident has occurred and the injured was succumbed to the injuries due to the said accident. Further it is stated in Charge Sheet that the conductor of the Volvo bus i.e., Madeva Prakash Y.V. (Token No.7792) has shown negligence in discharging his duty as he has not got down from bus and has not given information to the driver while driver was taking reverse direction of the said Volvo bus, thereby the accused No.1 & 2 have committed an offence punishable U/s.279 & 304(A) of IPC.
9. The following ingredients are required to establish to prove the offences U/s.279 & 304(A) of IPC.
The accused drove his vehicle on public way. The accused drove his vehicle either in rash or negligent manner so as to endanger human life. Death of any person in question.
13 C.C.No.4635/1710. The prosecution has examined 8 witnesses out of 15 witnesses, out of them complainant is examined as P.W.1, one circumstantial witness as P.W.2, one independent witness as P.W.3, mahazar witness is examined as P.W.4, witness in seizure mahazar of CCTV footage is examined as P.W.5, inquest witness as P.W.6, IMV officer is examined as P.W.7, I.O. is examined as P.W.8.
11. The accused in order to disprove the case of the prosecution has conducted cross-examination of P.W.1 to P.W.8 who are relevant and material witnesses for the purpose of adjudication of the above questions. The defence of the accused is that one Sarabuddin is a security person is not made as prosecution witness except taking statement from the said Sarabuddin. Even none of the documents are produced in this behalf. The prosecution has cooked up story as its own whims and fancy to implicate the accused persons falsely in the prosecution case.
12. Keeping this defence in mind and also to test the veracity in the statement of witnesses their cross- examination gains importance. In order to prove the contents of complaint, the complainant examined 14 C.C.No.4635/17 himself as P.W.1 and has reiterated the contents of complaint. The complainant has deposed that on 22- 12-2016 at about 8.00 p.m. he received MLC memo from Victoria hospital later he visited the said hospital. Since the injured was not in position to narrate the incident and lodge complaint, he received memo from said hospital and came to police station and lodge a suo-moto complaint and registered under crime No.433/2016 U/s.279, 337 of IPC, Sec.134(A & B) R/w.187 of M.V.A.ct. The said accident is occurred by one BMTC bus. Later he visit the accident spot and conducted spot mahazar and prepared rough sketch. He has taken statements of witnesses. Since the injured died in the Victoria hospital, he received memo from the said hospital. As the injured died he has submitted a requisition to this Hon'ble Court to adopt the case U/s.304(A) of IPC. He handed over the investigating papers to C.W.17 to conduct further investigation.
13. During the course of the cross-examination of P.W.1 i.e., the complainant, he was suggested that as the injured was not in a position to speak, P.W.1 has not collected any letter or written document from the doctor who had treated the injured and the same is 15 C.C.No.4635/17 not produced before this court. Since none has filed complaint against the accused, the complainant, P.W.1 has lodged complaint suo moto. It was further suggested that there was no difficulty for P.W.1 to enquire the residents in accident spot and make them as a prosecution witness in the said case. P.W.1 complainant has voluntarily deposed that he has taken statement from one security person stating that BMTC bus has committed the accident.
14. The prosecution has examined only circumstantial witnesses and mahazar witness corroborated by complainant and I.O. evidence in the present case. One such circumstantial evidence got examined on behalf of prosecution as P.W.2 who has deposed that on 28-12-2016 at about 6.00 a.m. he received a phone call from one of his friends. At that time he was in his room. Upon information received by his friend he came to know that one person has met with an accident. When he reached the accident spot the injured was taken to Victoria hospital. The injured was in coma stage and has informed him that one bus came and hit him. He do not know the registration number of the vehicle which committed accident to the injured. During the course of cross-
16 C.C.No.4635/17examination of P.W.2 by the learned counsel for the accused it was suggested that he do not have personal knowledge about the person who has admitted the injured to hospital. He went to Mamatha hospital at about 6.00 a.m. in the morning. The person who has admitted the injured was present in the hospital, but he do not know that person. He has not seen the accident except the information, he has received over the phone.
15. P.W.4 is the mahazar witness who has deposed that on 23-12-2016 between 10.30 a.m. to 11.00 a.m., police have conducted mahazar Ex.P.3 at accident spot in the presence of himself, C.W.1 and C.W.8 and they have put their signature to mahazar Ex.P.3 in the accident spot. During the cross- examination of P.W.4 by the learned counsel for the accused, P.W.4 has given admissions that he do not know the contents of mahazar Ex.P.3 and it was written by police men. He has put his signature to mahazar Ex.P.3 in his office
16. The crucial witness of the case is the seizure mahazar witness of CCTV footage. C.W.12 is examined as P.W.5 who is an independent witness and has deposed that police have seized C.C.T.V.
17 C.C.No.4635/17footage on 25-12-2016 at about 10.30 a.m. in the presence of himself, C.W.9A and C.W.9B in Kandala Jewelers Office. The seizure mahazar report is marked as Ex.P.6. The said seizure mahazar is marked as Ex.P.6 and signature of P.W.5 on Ex.P.6 is marked as Ex.P.6A.
17. During the course of cross-examination by the learned counsel for the accused, it was suggested to P.W.5 that police have not given any notice before the seizure mahazar was conducted by them. His owner has not given any authority letter to appear as witness during seizure mahazar. He do not have any knowledge about CCTV system management CCTV footage was given to police by his owner. He do not have personal knowledge about the said CCTV footage. He do not know who has prepared seizure mahazar report Ex.P.6. He do not know the contents of Ex.P.6. But he deny that he has put his signature to seizure mahazar Ex.P.6 at police station.
18. Apart from the above said contentions in cross-examination the learned counsel for accused disputed about the identification of accused, rashness or negligence on the part of accused, his 18 C.C.No.4635/17 presence on the accident spot, and he was not the driver of the offender vehicle on the day of accident.
19. In an allegation involving commission of offence U/s.279 & 304(A) of IPC. It is burden on the prosecution to prove its case beyond reasonable doubt. That is to say the prosecution has to prove the accused has committed an act either in a rash way or negligently because of which and as a direct consequence of which the victim has died. The link between the act of accused and the resulting death must be cogently established.
20. During the course of arguments the learned APP has vehemently argued that in the present case the rashness on the part of the accused can be ascertained in the manner of accident narrated by the complainant police. Hence it is argued that the culpable rashness on the part of accused is evident from the deposition of circumstantial witness, complainant and I.O. No suggestion is made or no material is placed on record to discredit these evidence before this court and that the accused is uncertain in so far as his defence is concerned as he not only denied the entire theory of prosecution, but 19 C.C.No.4635/17 also no material statement is elicited from the mouth of any of the witnesses. Hence learned APP prays for convicting the accused.
21. Per contra the learned counsel for accused during the course of argument has vehemently argued that the investigating officer during the course of his investigation has submitted report to this court stating that the driver of the offending vehicle is said to have flew away from the scene of offence after the accident. Per contra the circumstantial witness have deposed that the person causing the accident has not admitted the victim to hospital. The very important prosecution witness is the security person whose statement was collected during the investigation, but the same was not examined as prosecution witness on behalf of prosecution. In such a case, how the complainant police can lodge a suo moto complaint against accused persons. These are irreconcilable contradictions in the theory of prosecution. There is no proper identification with regard to offending vehicle and rash or negligence act of the accused persons involved in accident. As such the learned 20 C.C.No.4635/17 counsel for accused prays for acquittal of accused persons.
22. One important point is to be considered at this stage that the complainant police have lodged complaint suo moto and none of the eye witnesses are neither examined nor they are made prosecution witness because the incident happens to be taken in the midnight between 3.00 to 3.30 a.m. The same is supported by the CCTV footage gathered at the time of investigation. This prosecution case is one of the peculiar case in the cases dealt with road accidents. Because, prima facie, the facts of the complainant police narrate that accident has caused by one Volvo bus but no eye witness could be made as prosecution witness because the incident happens to be committed between 3.00 to 3.30 a.m. The injured was taken to hospital and he has informed to his known persons, those known persons came to know that accident has committed by one Volvo bus and said bus took reverse direction in rash or negligent manner. The statement of those known persons was taken as circumstantial evidence on behalf of prosecution. Upon further investigation the IO came to know that some CCTV footages were installed in 21 C.C.No.4635/17 accident place, on investigation it was found that on the accident spot at that time one Volvo bus was involved in the said accident. The same was approached to BMTC organization and collected GPS of the vehicle which had moved on the accident spot on the day of accident. But the unfortunate thing is the registration number of vehicle could not be fetched at that time.
23. Upon investigating the driver and conductor of the BMTC drivers, the driver of the Volvo bus has given statement to complainant police that he was the driver of the offender bus on the day of accident at the time shown in CCTV footage. The said statement was supported by conductor of the said bus. Here the conductor of the said bus has also committed negligence on the part of his duty without giving proper guidance and instruction to driver to take the said bus in reverse direction and has not got down from the said bus.
24. On perusal of records it appears that prima facie the accident has occurred and negligence of driver is apparent on the face of record, but there are no supporting eye witness except the circumstantial 22 C.C.No.4635/17 witness, CCTV footage, complainant who has lodged suo moto the complainant against accused persons and the IO who has conducted complete investigation of the case and has come to conclusion that accused have committed alleged offences.
25. At this critical condition it can not be considered that accident has not occurred neither in rash and negligent manner by the accused persons. At the same time it can't be concluded upon the circumstantial evidence available on record. Under the circumstances it is necessary to peruse the precedents and laws which supports the present case. Though the complainant P.W.1 is not an eye witness, but he is hearsay witness. Merely because the complainant is an hearsay witness the entire theory of prosecution cannot be brushed aside as it is settled principles of law that criminal law can be set into motion by any person. In the instant case, the complainant, P.W.1 has set the law into the motion.
26. The allegation that the accused was driving the said vehicle on the said time of incident is also disputed and the alleged nexus between the accused and the offending vehicle as driver of the same is also disputed by the accused. But the circumstantial 23 C.C.No.4635/17 witness P.W.2 has deposed that "£Á£ÀÄ C¥ÀWÁvÀ ¸ÀܼÀPÉÌ ºÉÆÃzÁUÀ UÁAiÀiÁ¼ÀĪÀ£ÀÄß «PÉÆÖÃjAiÀÆ D¸ÀàvÉæUÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃV zÁR°¹zɪÀÅ. UÁAiÀiÁ¼ÀÄ CgÉ ¥ÀæYõÁÕªÀ¸ÉÜAiÀÄ°èzÀÝgÀÄ ¸ÀzÀjAiÀĪÀgÀÄ §¸ï MAzÀÄ £À£ÀUÉ §AzÀÄ rQÌ ¥Àr¹gÀÄvÀÛzÉ JAzÀÄ £À£ÀUÉ «ZÁgÀªÀ£ÀÄß w½¹zÀgÀÄ." Where the P.W.2 has got first information from the injured himself that one bus has caused accident to him. P.W.2 who was present at that circumstance becomes circumstantial witness at that time. Moreover, the person who is in death bed never tell lies. The statement given by such person during his death becomes relevant.
27. Section 32 of Indian Evidence Act 1872 reads as follows:
Sec.32: Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. - Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-
(1) When it relates to cause of death.- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.24 C.C.No.4635/17
28. The statement given by accused to police becomes admissible U/s.27 of Evidence Act. Sec.27 of Act reads as follows:
Sec.27: How much of information received from accused may be proved.- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.29. In the present case the accused No.1 and 2
being the driver and conductor of the offender vehicle by looking at GPS have given their voluntary statement to police stating that they were driver and conductor of the said bus at the time of accident on the day of accident. Though the seizure mahazar witness admit that he do not have personal knowledge about CCTV system management but he denies that he has put his signature to seizure mahazar Ex.P.6 in police station. This draws a presumption that the seizure mahazar Ex.P.6 was seized in presence of panchas in Kandala Jewelers shop. The same footage was handed over to the complainant police by the owner of the said shop.25 C.C.No.4635/17
30. This case lacks the support of eye witness to the case, but the sole evidences of complainant and I.O. certainly proves that accident has caused by accused bus on the day of accident.
31. Since there are no supporting eye witness it can not be concluded that accused is responsible for the death of the injured. The aspect of rash or negligence on the part of accused is to be appreciated looking into the entire facts and circumstances of the case. It is sufficient if the prosecution proves its case that the accused was either rash or negligent culpable rashness is acting that the consciousness that the illegal consequences may follow but with the hope that they will not occur and that the accused has taken sufficient precaution to prevent its happening culpable negligence is the accused acting without the consciousness that the illegal act will follow, but in the circumstances which show that the accused has not exercised the caution incumbent upon him that if he had taken such precaution he could have avoided the accident. In the instant case culpable negligence is apparent on the part of record, but the prosecution case lacks the supporting of eye witness. Except the CCTV footage which is neither 26 C.C.No.4635/17 eye witness nor the material witness. Keeping these aspects in mind on perusal of the examination of the witness examined before this court and the exhibits it is noticed that the prosecution has not discharged its burden.
32. In Manoharlal Vs. Vinesh Anand reported in AIR 2001 SC 1820, the Hon'ble Apex Court has held as under:
33. To pursue an offender in the event of commission of an offence is to sub-serve a social need society cannot afford to have criminal escape his liability, since that would bring about a state of social pollution, which is neither desired nor warranted and this is irrespective of the concept of locus the doctrine of locus standi is totally foreign to criminal jurisprudence.
34. In the present case the accused driver has taken away life of an innocent person by driving his vehicle in a rash and negligent manner. The accused had to remain present at the spot for some time as this vehicle has caused accident to an unknown person and he would had talk to the injured and however, instead of extending him a helping hand in 27 C.C.No.4635/17 attending the injured, he ran away from the accident spot. He can't escape from causing accident to an innocent person.
35. Considering the circumstantial evidence available on record, the story narrated by injured to circumstantial witness becomes dying declaration of the injured before he succumbed to the injuries. Here in the instant case, the dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without even any corroboration.
36. In case of Shakila Khader Vs. Nausher Gama, AIR 1975 SC 1324, it was observed by Hon'ble SC as under: "In main criterion for deciding whether the driving which led to the accident was rash and negligent is not only the speed but the width of the road, the density of the traffic and the attempt to overtake the other vehicle resulting in going to the wrong side of the road and being responsible for the accident".
37. The terminology of criminal negligence has been discussed by Hon'ble S.C. in the case of S.N. Hussain Vs. State of A.P., AIR 1972 SC 685 as under:28 C.C.No.4635/17
"Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular which, having regard to all the circumstance out of which the charge has arisen it was the imperative duty of the accused person to have adopted".
38. It is further observed that "Culpable negligence lies in the failure of the exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case.
39. As per Vadivelu Thewar Vs. The State of Madras (1957 SCR 981) the Hon'ble S.C. had divided the nature of witnesses in three categories, namely, wholly reliable, wholly unreliable and lastly neither wholly reliable nor wholly unreliable. The first two categories they pose little difficulty, but in the case of the third category of witnesses, corroboration would be required. It is sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral 29 C.C.No.4635/17 testimony in this context may be classified into three categories, namely;
(i) Wholly reliable (ii) Wholly unreliable
(iii) Neither wholly reliable nor wholly unreliable.
40. In the first category of proof, the court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion or interestedness, incompetence, or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particular by reliable testimony, direct or circumstantial. There is another danger is insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts even to insist on plurality of witness in proof of any fact, they will be indirectly encouraging subornation of witnesses.
41. The Hon'ble SC in Jagdish Prasad Vs. State of M.P. (AIR 1994 SC 1251) has held that as a general 30 C.C.No.4635/17 rule the court can and may act on the testimony of a single witness provided he is a wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Sec.134 of Indian Evidence Act, 1872. But if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time honored principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Sec.134 of Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or other wise.
42. C.W.14 is examined as P.W.7 who is an IMV officer and has deposed that on 06-04-2017 at about 3.00 p.m. he has inspected one KSRTC bus bearing registration No.KA-57/F-319 and has submitted IMV report Ex.P.7. In his opinion the accident has not occurred due to any mechanical defect. When he tested the said motor cycle on road he found the break system of the said vehicle were in order.
31 C.C.No.4635/1743. C.W.17 is examined as P.W.8 is the I.O. who has clearly supported the prosecution and has not given a single admission in cross-examination by counsel for accused. In the instant case the I.O. has deposed in his cross-examination by the learned counsel for the accused that he has to take expert opinion regarding CCTV footage and the same is not examined on behalf of the prosecution.
44. In Shivaji Sahabroa bobbode Vs. State of Maharashtra it is held that the circumstances from which the conclusion of guilt is to be drawn should be fully established.
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) The facts so established should be consistent only with the hypothesis of the guilty of the accused, that is to say, they should not be explainable on any other hypothesis except is guilty, (3) The circumstances should be of a conclusive nature and tendency.
(4) They should exclude every possible hypothesis except the one to be proved, and 32 C.C.No.4635/17 (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence
45. On examining entire evidence of this case, in my opinion, although in absence of direct evidence, the circumstantial evidence has to be relied. But no eye witnesses are examined and hence non- examination of material witnesses has caused fatal to prosecution.
46. The main contention of defence is that when the name of driver as well as the number of vehicle was not mentioned in the FIR, it could not be safely said that the vehicle was involved in the accident. It is settled principle of law that mere non-manner of mention of name in the FIR was not fatal to the case once the factum of accident was mentioned.
47. Hence considering the factum of accident, the evidence of circumstantial witness is believable at this stage. And under the circumstance death has caused by one bus, but the evidence available on 33 C.C.No.4635/17 record do not prove that offender vehicle is held responsible for the death of an innocent person.
48. The rash and negligent driving of the driver of the offender vehicle is apparent on the face of record. Under such circumstances the driver of the alleged offender vehicle i.e., Ramesh Token No.12550 is held responsible for rash and negligent drive of the offender vehicle on the day of accident. At the outset prosecution has miserably failed to prove that Accused No.1 has caused death of the deceased person in the said accident and accused No.2 Token No.7792 being the conductor of the alleged offender vehicle has shown dereliction in his duty. Under these circumstances at this stage benefit of doubt is to be extended to accused persons. Hence, I answer point No.1 PARTLY IN AFFIRMATIVE.
49. POINT No.2: In view of the above discussions and findings I proceed to pass the following ORDER Accused No.1 is convicted U/s.255(2) of Cr.P.C. for the offences punishable U/s.279 of IPC.
Accused No.2 is acquitted U/s.255(1) of Cr.P.C. for the offences punishable U/s.279 of IPC.
34 C.C.No.4635/17Lastly, Accused No.1 & 2 are acquitted U/s.255(1) of Cr.P.C. for the offences punishable U/s.304(A) of IPC.
The accused No.1 shall pay a fine of Rs.1,000/- for the offence punishable U/s.279 of IPC on default he shall undergo S.I. for 15 days.
The bail bond and surety bond of the accused shall stands cancelled after the appeal period.
Office is directed to furnish a copy of this judgment free of cost to the accused No.1.
(Dictated to the Stenographer directly on computer, typed by her, corrected and then pronounced by me in the open Court this the 13th day of July 2018).
(GAYATHRI.S.KATE) MMTC - IV, BANGALORE.
ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE PROSECUTION:
P.W.1: Shivanna P.W.2: Anand P.W.3: Chinna Swamy P.W.4: Basha P.W.5: Ramesh Babu P.W.6: Murutaja P.W.7: Eshanna P.W.8: Uma Mahesh 35 C.C.No.4635/17
2) LIST OF DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1: Requisition Ex.P.2: FIR Ex.P.3: Spot Mahazar Ex.P.4: Rough sketch Ex.P.5: M.L.C. Ex.P.6: C.C.T.V.
Ex.P.7: IMV Report Ex.P.8: P.M. Report Ex.P.9: 133 notice Ex.P.10: Reply Ex.P.11: Inquest Mahazar Ex.P.12: Log sheet Ex.P.13: Way bill
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:
NIL
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED:
NIL (GAYATHRI.S.KATE) MMTC - IV, BANGALORE.