Bangalore District Court
State By Madiwala Traffic Police ... vs T.Umesh S/O Thimappa on 11 November, 2015
IN THE COURT OF METROPOLITAN MAGISTRATE TRAFFIC
COURT - VI, BENGALURU CITY.
C.C. No.2095/2012
Dated: This the 11th day of November, 2015.
Present: Smt.Lavanya H.N., B.Sc.,LL.B
P.O. of MMTC-VI, Bengaluru.
Complainant : State by Madiwala Traffic Police Station.
V/s
Accused : T.Umesh S/o Thimappa,
25 years, R/at # 606,
1st Main Road, Kamalanagar,
Bengaluru.
JUDGMENT
Police Inspector of Madiwala Traffic Police Station filed charge sheet alleging that, the accused has committed offences punishable U/s 279, 338 and 304 (A) of IPC and Sec.3 (1) r/w 181 and 56 (1) r/w 192 of I.M.V.Act.
2. The facts of prosecution case in brief are as under:
On 16.08.2012 at about 2.15 a.m. within the jurisdiction of Madiwala Traffic Police Station, the accused being the driver of Qualis vehicle bearing No.KA-01-C-3830 without having driving license drove it from Bommanahalli towards Kudlu Gate on Service Road, in a rash and negligent manner so as to endanger human life, near Garvebhavipalya, Opp: Ozone Tech Park dashed to the scooter Bajaj Chetak No.KA-01-L-6451 which was coming opposite to Qualis as a result of which the rider of the scooter Sri.Syed Simran, and Pillion riders namely Syed 2 CC.No.2095/2012 Wasim Akram and CW-2 Sri.Mohim Pasha fell down on the road and sustained grievous injuries and injured rider Sri.Syed Simran, and Pillion rider Syed Wasim Akram succumbed to injuries. It is further case of the prosecution that the accused being the owner of the aforesaid Qualis vehicle drove the said vehicle on road though the said vehicle has no fitness certificate on the date of alleged accident. Thereby, the accused has committed the offences as stated supra.
3. After Completion of Investigation, I.O. has filed charge sheet against the accused. Thereafter cognizance was taken of the offences punishable U/s 279, 338 and 304 (A) of IPC and Sec.3 (1) r/w 181 and 56 (1) r/w 192 of I.M.V.Act and process has been issued to the accused. Accused appeared through counsel in pursuance of process and accused got enlarged on bail.
4. Charge Sheet copies have been furnished to the accused in compliance of Section 207 of Cr.P.C.
5. Substance of accusation has been read over and explained to the accused and pleaded not guilty and claimed to be tried. Hence, the case is posted for Prosecution evidence.
6. In order to establish its case Prosecution has examined six witnesses as PW.1 to 6 and got marked documents at Ex.P.1 to 17 and closed its side.
3 CC.No.2095/20127. All the incriminating evidence appearing against the accused in the prosecution evidence has been read over and explained to the accused and accordingly statement U/s 313 of Cr.P.C. is recorded. The accused has denied the same but, he did not choose to lead defense evidence.
8. I have heard the arguments and perused the materials available on record. The following points that would arise for consideration:
1. Whether prosecution proves beyond all reasonable doubts that on 16.08.2012 at about 2.15 a.m. within the jurisdiction of Madiwala Traffic Police Station, the accused being the driver of Qualis vehicle bearing No.KA-01-C-3830 drove it from Bommanahalli towards Kudlu Gate on Service Road, in a rash and negligent manner so as to endanger human life, near Garvebhavipalya, Opp: Ozone Tech Park dashed to the scooter Bajaj Chetak No.KA-01-L-6451 which was coming opposite to Qualis as a result of which the rider of the scooter Sri.Syed Simran, and Pillion riders namely Syed Wasim Akram and CW-2 Sri.Mohim Pasha fell down on the road and thereby, the accused has committed the offence punishable U/s 279 of Indian Penal Code ?
2. Whether the prosecution proves beyond all reasonable doubts that as a result of above said accident, CW-2, Sri.Mohim Pasha sustained grievous injuries and thereby, the accused has committed the offence punishable U/s 338 of Indian Penal Code ?
3. Whether the prosecution proves beyond all reasonable doubts that as a result of above said accident, the rider of the scooter Sri.Syed Simran, and Pillion rider namely Syed Wasim Akram succumbed to injuries which is not amounting to culpable homicide and thereby, the accused has committed the offence punishable U/s 304(A) of Indian Penal Code ?4 CC.No.2095/2012
4. Whether the prosecution proves beyond all reasonable doubts that the accused drove the aforesaid Qualis without having driving license and thereby the accused has committed the offence punishable under section 3(1) r/w 181 of IMV Act?
5. Whether the prosecution proves beyond all reasonable doubts that the accused drove the said vehicle on public road though there was no fitness certificate for his vehicle and thereby, the accused has committed the offense punishable under section 56(1) r/w 192 of IMV Act?
6. What order?
9. The findings to the above points are as under:
Point No.1 to 4 : In the Negative;
Point No.5 : Partly in the affirmative;
Point No.4 : As per final order for the
following:
REASONS
POINT Nos.1 to 3 :
10. Since these points are interlinked with one and another, they are taken up together for common discussion to avoid repetition of facts, as here under.
In this case the prosecution has examined six witnesses as PW-1 to 6. PW-1 is Complainant as well as Spot-mahazar witness. PW-2 is injured. Pw-5 is Eye-witness. PW-3 and 4 are Spot-mahazar witnesses. PW-6 is Investigation Officer.
11. PW-1 has deposed that on 15.08.2012 at about 2.30 p.m. when he was in patrolling duty near Garvebhavi Palya circle he received message through public with regard to accident at Ozone Tech Park .Service Road. Immediately he 5 CC.No.2095/2012 rushed to the spot along with PC.No.10720 wherein he saw one Bajaj vehicle laying on the road and also blood stains on the road. On enquiry with the public he came to know that one Qualis Car came in high speed from Garvebhavi Palya towards Kudlu gate and dashed against Bajaj Scooter which was coming opposite to Qualis Car as a result of which three persons who are in the scooter fell down on the road and they have been taken to St.John Hospital in Ambulance. Thereafter, he came to know that two persons succumbed to injuries and another person was in St.John Hospital. In this regard he has lodged complaint as per Ex.P-1. He has further deposed that next day Investigation Officer has conducted Spot-Inspection in his presence and drawn Spot-mahazar as per Ex.P-2.
12. PW-1 is injured has deposed that on 16.08.2012 at about 2.00 a.m. he and Wasim Akram were travelling in Syed Simran's Bajaj Scooter which was riding by Syed Simran from Lakksandra towards Garvebhavipalya on service road near Saskin building one Qualis Car came opposite to them and dashed against Scooter as a result of which they fell down. Immediately he became unconscious as such he does not know what happened further. He has further deposed the said Qualis Car coming in high speed. He has further deposed that he does not know the Car number and he has not seen the driver of the Car which caused the accident. He got conscious after two days when he was in hospital. Thereafter, he came to know that two others who were in Scooter died at accident spot.
6 CC.No.2095/201213. PW-2 has been subjected to cross-examination by the learned APP. During cross-examination he has admitted to the suggestion put to him that he has stated before the Police that the Qualis car which caused the accident is KA-05-C-3830. He has further admitted to the suggestion put to him that the accident in question took place near Ozone Tech Park. He has further admitted to the suggestion put to him that he has stated before the police that the said Qualis Car came in high speed without putting head light and dashed against scooter as a result of which the accident took place.
14. PW-3 and 4 who are stated to be Spot-mahazar witnesses have deposed that on 16.08.2012 between 4.00 p.m. and 5.00 p.m. with the history of the accident near Ozone Tech Park on Garebhavi Palya road the Police have conducted Spot- Inspection in their presence and drawn Spot-mahazar as per Ex.P-2.
15. PW-5 who is stated to be Eye-witness to the incident has not supported the case of the prosecution. PW-5 has deposed that he did not see the accident and he has not given statement before the Police that he saw the accident.
16. As PW-5 did not support the case of the prosecution, he has been treated as hostile witness at the request of the learned APP. Though he has been subjected to cross- examination by the learned APP, nothing has been elicited from him which supports the case of the prosecution.
7 CC.No.2095/201217. PW-6 Investigation Officer has deposed with regard to investigation.
18. PW-1 to 4 and 6 have been subjected to cross- examination wherein denied the entire case of the prosecution as false. It is specific defense of the accused that the accused has not caused the accident in question. It is the self accident of the deceased rider himself as the two deceased and injured were doing wheeling at the relevant point of time and they themselves fell-down on the road and sustained injuries.
19. In this case, CW-8 has been cited as Eye-witness to the case. In-spite of due execution of proclamation CW-8 did not appear before the Court as such CW-8 has been dropped. In this case two Inquests, Two Post-mortem reports, Seizure mahazar, P.F, Wound-Certificate of PW-2 and IMV Report have not been denied by the defense. Hence, CW-5, 6 and 9 to 21 are given up by the prosecution.
20. In this case it is not in dispute that two persons died in Road Traffic Accident. It is also not in dispute that PW-2 sustained grievous injuries in the Road Traffic Accident. It is also not in dispute that the road in question where the accident took place is a public road. It is not the defense of the accused that this accident is due to the mechanical defect of the offending Car and Scooter which subjected to accident. Further on going through the IMV Report at Ex.P-17, it could be seen that the IMV Inspector who inspected the aforesaid vehicles has 8 CC.No.2095/2012 expressed his opinion that this accident is not due to mechanical defects of the vehicles involved in the case. Hence, it is held that this accident is not due to mechanical defect of the vehicles involved in the case. Now the questions remain before the Court are whether the accused has caused the accident or not and whether this accident is due to either rash or negligent driving of the accused or not.
21. PW-3 and 4 are Spot-Mahazar witnesss. PW-2 and 3 during their cross-examination have admitted that they do not know the contents of Ex.P-2. PW-2 has further admitted that he put signature to Ex.P-2 at Police Station whereas PW-4 has stated that he put signature to Ex.P-2 at Spot. When PW-3 and 4 do not know the contents of the Spot-mahazar their version in their examination-in-chief that the Police have conducted Spot- Inspection in their presence at accident spot and drawn spot mahazar at Ex.P.2 in their presence cannot be accepted. Apart from that neither PW-3 nor PW-4 is eye witness to the incident. In the absence of eye witnesses on what basis Investigation Officer has conducted spot inspection and drawn spot mahazar has not been explained in this case. Hence, it is held that the prosecution has failed to prove spot mahazar which is important piece of evidence.
22. Admittedly, PW-1 is a hear say witness as he has not seen the accident. He has lodged complaint based on information received from public. But, from whom he has received information has not been disclosed by the PW-1.
9 CC.No.2095/2012Therefore, evidence of PW-1 would not help to the case of the prosecution to prove that this accident is from Qualis Car and this accident is due to rash and negligent driving of the accused. As already been noticed PW-5 who is stated to be Eye-witness to the incident has not supported the case of the prosecution. Therefore, evidence of PW-5 also would not help to the case of the prosecution to prove guilt against the accused.
23. PW-2 is a material witness to the case as he is injured. In his examination-in-chief he has deposed that he does not know the Car number and he did not see the driver of the Car. He has further deposed that immediately after the accident he became unconscious and he got conscious after two days of the accident. At that time he was in hospital. Further he has deposed that he came to know two other persons who are with him are also died in the accident. However, during cross- examination by the learned APP he has admitted to the suggestion put to him that he has stated car number before the Police and Car was coming in high speed and caused the accident. When PW-2 became unconscious after the accident as stated by himself then it could not be expected from him the Car number which caused the accident. PW-2 in his examination- in-chief has deposed that he does not know the vehicle number which caused the accident whereas during cross-examination by the learned APP he has admitted to the suggestion put to him that he has stated the car number before the Police. PW-2 has deposed that after the accident he became unconscious and he got conscious after days of the accident. From whom he 10 CC.No.2095/2012 collected the car number has not been explained by the PW-2. Inview of the aforesaid two versions of PW-2 it is not proper to believe his version before the court that this accident is due to fault of driver of Qualis car. Except PW-2 none of the eye witnesses supported the case of the prosecution. In view of the aforesaid discussion, it is held that the prosecution has failed to prove its case that the accused has caused the accident and this accident is due to rash and negligent driving of the accused. Hence, Point No.1 to 3 are answered in the Negative.
POINT No.4:
24. It is further case of the prosecution that the accused drove the offending Car without possessing D.L. At this stage it is relevant to go through the evidence of PW-6. PW-6, Investigation Officer, during his cross-examination by the defense has admitted that the accused has driving license but he did not possess yellow badge. Further, while answering points No.1 to 3, this Court has come to the conclusion that the prosecution has failed to prove the fact that this accident is from offending Car and the accused has caused the accident. When the prosecution has failed to prove that this accident has been caused by accused then question of convicting the accused for the offence punishable U/s 3 (1) of IMV Act does not arise. Hence, point No.4 is answered in the Negative.
POINT No.5:
11 CC.No.2095/201225. It is further case of the prosecution that on the date of alleged accident the offending Car was not fit to drive on road as there was no F.C. for the offending Car. Hence, the accused has committed the offence punishable U/s 56 (1) of IMV Act. In this case the prosecution has utterly failed to prove that the offending Qualis Car has caused the accident. However, during the course of cross-examination of PW-2 and 6 it is suggested on behalf of the accused that though accused has not caused the accident, he and employers who were in his quails vehicle helped the injured and he took the injured to hospital. From this suggestion it could be said that on the date of alleged accident the offending Qualis vehicle has been used on road. Using of the vehicle on public road without F.C is an offence punishable U/s 56 (1) of the IMV Act. During cross-examination of Investigation Officer it is suggested that there was a F.C for the offending vehicle which is denied by the PW-6. But, the accused has not produced the document to show that the offending vehicle has F.C on the date of the alleged accident. From this it could be inferred that on the date of accident offending vehicle has been used on road though there was no F.C for it Hence, accused has committed the offence punishable U/s 56 (1) r/w 192 of IMV Act. Hence, point No.5 is answered in the Affirmative.
POINT No.6:
26. In view of findings on point No.1 to 5, this Court proceeds to pass the following:
12 CC.No.2095/2012ORDER Acting U/s 255 (1) of Criminal Procedure Code, 1973, accused is acquitted for the offences punishable U/s 279, 338 and 304 (a) of IPC and 3 (1) r/w 181 of IMV.Act.
Acting U/s 255(2) of Criminal Procedure Code, 1973 accused is convicted of the offences punishable under section 56(1) r/w 192 of IMV Act.
The accused is sentenced for the offence punishable under section 56(1) r/w 192 of IMV Act to pay fine of Rs.2,000/- (Rs.Two Thousand only) in default to pay the fine, to undergo simple imprisonment for a period of 30 days.
Bail bond and surety bond stands cancelled.
(Dictated to the Stenographer, transcript computerized by him, revised corrected and then pronounced by me in the open Court on this the 11th day of November, 2015) (Smt.Lavanya H.N.) P.O. OF MMTC-VI, BENGALURU.
ANNEXURE Witnesses examined for the prosecution :
PW-1 : Ganganarasaiah, PW-2 : Moin pasha, PW-3 : Syed Hidayathulla, PW-4 : Vishnu Kesavan, PW-5 : Suresh, PW-6 : K.C.Laxminarayan.
CC.No.2095/2012 Documents Exhibited for the prosecution: Ex.P1 : Complaint, Ex.P2 : Spot Mahazar, Ex.P3 : Statement of PW-5, Ex.P4 : Re-statement of PW-5. Ex.P5 : F.I.R., Ex.P6 : Inquest, (Simran) Ex.P7 : Inquest, (Wasim Akram) Ex.P8 : Seizure Mahazar, Ex.P9 : P.F., Ex.P10 : Notice issued u/s 133 of IMV Act, Ex.P11 : Reply, Ex.P12 : Police Notice, Ex.P13 : Rough sketch, Ex.P14 : Wound Certificate, Ex.P15 & 16 : P.M. Reports, Ex.P17 : I.M.V.Report.
Witness examined for the defense : Nil. Documents exhibited for the defense : Nil.
Material object got marked in this case : Nil.
P.O of MMTC-VI, Bengaluru City.