Bangalore District Court
State By P.I vs Sangappa Mallappa on 6 August, 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 6th DAY OF AUGUST 2016
C.C.No.6584 - 2013
COMPLAINANT : STATE BY P.I
HIGHGROUNDS TR. P.S.
BANGALORE.
// VS //
ACCUSED : SANGAPPA MALLAPPA
KAMBALASHETTY., S/O.MALLAPPA.,
AGED ABOUT 32 YEARS,
DASANAPURA, NELAMANGALA,
BANGALORE RURAL.
JUDGEMENT
This is the case registered against the accused on the basis of the charge sheet submitted by the P.I. Highgrounds Tr. P.S. alleging the offences punishable u/Sec.279 and 304(A) of the IPC.
2. The case of the prosecution in nutshell is as follows:
That on 02.04.2013 at about 5.45 p.m., at S.C Road, near Rajiv Gandhi Circle, accused being a driver of the B.M.T.C 2 C.C.No.6584 - 2013 bus bearing No.KA-01-F-2287 drove the same in the rash and negligent manner, so as to endanger to human life and dashed against the pedestrian by name Sri.Pradeep Kumar.K.P, who was standing in the bus stop. Due to the impact, the said pedestrian Sri.Pradeep Kumar fell down and sustained grievous injuries and he was shifted to the City Hospital. On the same day, the injured succumbed to the injuries at hospital.
On the basis of the complaint lodged by the C.W.1, the P.S.I. has registered the case against the driver of the B.M.T.C bus bearing its registration No.KA.01.F.2287 alleging offences u/Sec.279 and 304(A) of IPC. After completion of the investigation the P.S.I. has submitted the charge sheet against the accused alleging offence u/Sec. 279 and 304(A) of IPC.
3. Accused herein voluntarily surrender before the court and submitted the bail application in the crime state and he has been enlarged on bail. After perusal of the charge sheet cognizance of the above said offences taken against the accused and register the case. Thereafter presence of the accused is secured by issuing summons. Copies of the 3 C.C.No.6584 - 2013 prosecution papers supplied to the accused. Substance of the accusation framed and read over to the accused. The accused pleaded not guilty and he 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 Eleven witnesses as P.W.1 to 11 and in the evidence of the prosecution Ex.P.1 to 9 documents are got marked as exhibits.
5. Learned counsel for the accused has filed the memo stating that accused is not disputing inquest. Hence, inquest is marked with the consent of the accused. Hence, at the request of learned APP CW.7 to 10 are given up.
6. 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 evidence appearing in the prosecution evidence. The accused did not choose to adduce defence evidence.
4 C.C.No.6584 - 2013
7. Heard learned APP and Learned counsel for the accused. Perused the materials available on record and evidence on record.
8. The points that arise for my consideration are as under:
1. Whether the prosecution proves beyond all reasonable doubt that on 02.04.2013 at about 5.45 p.m., the accused being the driver of the B.M.T.C bus bearing its registration No.KA-01-F-
2287 drove the same at S.C road, near Rajiv Gandhi Circle, in rash or negligent manner, so as to endanger human life and dashed to the pedestrian by name Sri.Pradeep Kumar.K.P and thereby accused has committed offence under section 279 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that because of rash or negligent driving of the B.M.T.C bus by the accused, it dashed the pedestrian by name Sri.Pradeep Kumar.K.P and due to the impact, the said pedestrian by name Sri.Pradeep Kumar.K.P fell down and sustained grievous injuries and was shifted to K.C General hospital and on the same day the said Sri.Pradeep Kumar.K.P - the injured succumbed to the injuries at hospital and thereby accused has committed the offence punishable under section 304(A) of IPC?
3. What order?
My findings on the above said point are as follows: 5 C.C.No.6584 - 2013
POINT NO.1: FOR THE NEGATIVE;
POINT NO.2: FOR THE NEGATIVE;
POINT NO.3: As per the final order
for the following;
:REASONS:
9. POINT NO.1 and 2 : Since these points are
connected and interlinked with each other, hence same are taken together for consideration and discussion in order to avoid repetition of facts and legal aspects.
10. That the learned APP during the course of the arguments submitted that the prosecution witnesses PW.5 and PW.6 have supported the case of the prosecution and clearly deposed about the accident and identified the B.M.T.C bus and accused and deceased person. Their evidence is in corroboration with PW.8 to PW.11 clearly proves the guilt of the accused. Further he submitted that the accused has not denied the fact of rashness or negligent in trial. Hence, the burden on the accused is not discharged by the accused. Further, he submitted that due to rash and negligent driving of the accused pedestrian by name Sri.Pradeep Kumar died and causing of the death of a pedestrian, who was waiting in bus 6 C.C.No.6584 - 2013 stand itself it leads to an inference of rash and negligent and prayed to convict the accused.
11. Per contra, the learned advocate for the accused argued that the complainant PW.2 herein is hearsay witness and PW.1 turned hostile. The PW.3 and 4 admitted that they have neither written nor aware of the content of the panchanama. Further, the eye witnesses are failed to narrate the correct facts of accident. Merely because some similarity in the evidence of PW.5 and 6 and I.O and doctor, prosecution case is not said to have proved the case. Further, he submitted that there is no burden on the accused in criminal case to explain the incident. Accused is not expected to show the non-occurrence of the accident. Further he submitted that no prosecution witnesses are reliable and no conviction is possible from such evidences. Hence, he prayed to acquit the accused in this case.
12. In this case, the PW.1 is the conductor of the alleged B.B.M.P vehicle has deposed that no incident took place on that date and time alleged by the complainant in this case and she completely turned hostile. In the cross- examination by learned APP, PW.1 has deposed that no 7 C.C.No.6584 - 2013 statement was given by her on 04.04.2013 as alleged by the prosecution in Ex.P.1 and further she denied the content of the Ex.P.1. Nothing was elicited in her cross-examination by learned APP.
13. The PW.2 - the complainant has deposed in the examination that he has given the complaint to the police regarding the accident and death of the deceased Sri.Pradeep Kumar as per Ex.P.2 - complaint. But, he deposed that the number of the bus and the fact of alleged incident was heard by him through police. In the cross-examination PW.2 clearly admitted that he put the signature on the complaint written by the police. That the PW.2 is hearsay witness to the alleged incident. According to his own evidence and Ex.P.2 - complaint, he has not seen the accident and spot. He is merely a complainant and heard the facts of death of the deceased through police. Hence, the evidence of the PW.1 cannot be relied for the alleged accident and facts relating to the accident i.e., spot, time of alleged accident etc.
14. The PW.3 and 4, mahazar panchas have deposed that the signature of them are taken on documents pertaining to the accident and they have identified the signature of them 8 C.C.No.6584 - 2013 on the panchanama. In the cross-examination by learned counsel for the accused, PW.3 and 4 have deposed that police have written the panchanama and they have no knowledge of the contents of the panchanama. Further they admitted that they have put their signature as per the direction of the police. Further they deposed that deceased Sri.Pradeep Kumar was working with him and familiar to him. Further, PW.4 deposed that he cannot read and write kannada. Hence, from the evidence of PW.5 and 6, it is clear that the PW.3 and 4 are colleague of the deceased Sri.Pradeep Kumar and the alleged panchanama was not written by them and they have no knowledge of the content of the panchanama.
15. The PW.5 - eye witness has deposed in the examination-in-chief that he is not in a position to identify the accused as there is lapse of time and he further stated that the accused present before the court may be the accused. In the cross-examination he has deposed that "UÁAiÀiÁ¼ÀÄ £À¤ßAzÀ ºÀvÀÄÛ Cr zÀÆgÀzÀ°è ¤AwzÀÝ£ÀÄ. £Á£ÀÄ £ÉÆÃrzÁUÀ DvÀ¤UÉ ¥ÀæYÕÉ ºÉÆÃVvÀÄÛ. ¸ÀzÀj §¸ï£À gÀÆmï £ÀA§gï AiÀiÁªÀÅzÀÄ ªÀÄvÀÄÛ JµÀÄÖ d£À ¥ÀæAiÀiÁtôPÀjzÀÝgÀÄ JAzÀÄ £Á£ÀÄ £ÉÆÃr®è ". In the cross-examination he has deposed that 9 C.C.No.6584 - 2013 "¸ÁªÀðd¤PÀgÀÄ ¸ÀºÀ UÁAiÀiÁ¼ÀĪÀ£ÀÄß JwÛ G¥ÀZÀj¹zÁÝgÉ." Further, he has admitted that "UÁAiÀiÁ¼ÀÄ gÀ¸ÉÛAiÀÄ AiÀiÁªÀ ¨sÁUÀzÀ°è ©¢ÝzÝÀ£ÀÄ JAzÀÄ £À£Àß ºÉýPÉAiÀÄ°è ºÉý®è JAzÀgÉ ¸Àj" Further he has deposed that "C¥ÀWÁvÀzÀ°è UÁAiÀÄUÉÆAqÀ ªÀåQÛ £À£ÀUÉ ¥ÀjZÀAiÀÄ«®è." Further he has deposed that he cannot say as to the speed of the bus.
16. The PW.6 - another eye witness has deposed in the examination-in-chief that he came to the alleged accident spot at about 5.30 p.m., and at that time B.M.T.C bus bearing its registration No.KA.01.F.2287 came fast and dashed the pedestrian standing near to him. Further, he deposed that due to the accident the said pedestrian gets injured and became unconscious and the said person was taken to the K.C General Hospital by the driver of the bus as well as the public. Further, he identified the accused present in the court. In the cross-examination, he deposed that his statement was recorded in police station and it was recorded as per the written say given by him. Further he has deposed that "¥ÉÇðøÀgÀ ªÀÄÄAzÉ £Á£ÀÄ ¤ÃrzÀ ºÉýPÉAiÀÄ°è §¸ï 10 C.C.No.6584 - 2013 ZÁ®PÀ£À£ÀÄß £ÉÆÃrzÉÝÃ£É ªÀÄvÉÛ £ÉÆÃrzÀgÉ UÀÄgÀÄwÛ¸ÀÄvÉÛÃ£É JAzÀÄ ºÉý®è UÁAiÀiÁ¼ÀÆ«UÉ J¯Éè¯Éè KmÁVvÀÄÛ JAzÀÄ £À£ÀUÉ UÉÆwÛ®è." Further in cross- examination he has deposed that "C¥ÀWÁvÀªÁzÀ ¸ÀªÀÄAiÀÄzÀ°è §¸ï¸ÁÖåAqï£À°è ¸ÀĪÀiÁgÀÄ 20 d£À EzÀÝgÀÄ CªÀgÀ°è LzÁgÀÄ d£À UÁAiÀiÁ¼ÀĪÀ£ÀÄß JwÛzÀgÀÄ. £À£ÀUÉ §¸ï qÉÊæªÀgï£À ºÉ¸ÀgÀÄ UÉÆwÛ®è."
Though, PW.6 supported the case of the prosecution case, but he is unable to tell about the exact spot of incident and the name and identification of the bus driver. Further, he has not stated that particulars of the injuries caused to the deceased. Further, he is not in a position to state how he has obtained the name of the accused. It is another thing to note here is that how he has got the name of the driver and how he has mentioned name of the driver in the statement given by himself. Further, he has not deposed who are all the public gather and how many public at the time of alleged incident and further he has admitted that he has not lodged the complaint to the police. Further, he has not deposed about the speed of the B.M.T.C vehicle and its number.
11 C.C.No.6584 - 2013
17. The PW.7 - A.T.S - B.M.T.C has deposed that accused is the B.M.T.C driver and on the date of accident accused was the driver of the said bus and he admitted Ex.P.4 and Ex.P.5 and he has further deposed that he after executing the indemnity bond taken back the custody of the vehicle. In the cross-examination he has admitted that buses were allotted to the divers in the Depot and on 02.04.2012, he has not allotted the bus to the accused. He further admitted that his evidence is only based on documents. But in Ex.P.5 which was issued by this witness, the log sheet number is kept blank. Further, no log sheet is produced and same is referred in the Ex.P.5. Further, the PW.7 has deposed that he has not allotted the bus to the accused. Further, time of departure of the bus and its destination, departure etc., are not at all mentioned in the said documents or in any documents.
18. The PW.8 - the doctor who conducted the post mortem of the deceased has deposed that the deceased by name Sri.Pradeep Kumar was brought to hospital for post 12 C.C.No.6584 - 2013 mortem. He has further deposed that deceased was examined and upon examination the following external injuries were found, they are grazed abrasion over left side lumber back measuring 18cm/6cm, abrasion over left flank measuring 12cm/16cm and right scrotum though which right testes is protracting out. Further he has deposed that all injuries are ante-martem and fresh in nature, abrasion are bright red in colour and left fermur fractured at its neck and sacroiliac joints fractured with bleeding into pelvic muscles. He has opined that death is due to shock and hemorrhage. As a result of injuries sustained to the pelvic region death is caused. Further he opined that in case of road accidents the above said injuries are probable. The PW.8 is not cross-examined by the accused.
19. The PW.9 - the I.M.V inspector has deposed in the examination-in-chief that he has examined the B.M.T.C bus and certified that brake system were found intact, when he tested it is in running condition. Further he has opined that accident is not due to mechanical defect. In the cross- 13 C.C.No.6584 - 2013 examination he has admitted the non-mentioning of the brake system in Ex.P.7.
20. The PW.10 - the P.S.I has deposed who received the First Information Report, in the examination-in-chief that on 02.04.2013 at about 9.30 p.m., when he was in police station, he received the written complaint given by the CW.1 and recorded the FIR and submitted the same to the court and handed over the files to CW.16 for further investigation. The accused cross-examined the PW.1 and denied the examination-in-chief of the PW.10. The PW.11 - P.I who has further investigated the case and submitted the charge sheet has deposed in the examination-in-chief that after taking the papers on very next day he has visited the K.C. General Hospital and identified the deceased person in the accident with the help of the CW.7 to CW.9 as per identification of CW.10 and prepared the inquest panchanama. Further, he deposed that he has handed over the dead body to the legal heirs of deceased and on the same day i.e., next day to 02.04.2013, he has visited the accident spot in the presence of panchas i.e., CW.5 and CW.6 and 14 C.C.No.6584 - 2013 prepared the mahazar and sketch and seized the involved bus and prepared the P.F and submitted to the court. Further, he deposed that he has obtained the reply to the section 133 notice after issuing the same to CW.11 who was present in the police station. Further he has deposed that accused was arrested and released on bail and the statement of CW.3 and CW.4 were recorded. Further he has deposed that bus was sent to R.T.O Yeshwanthpur for motor vehicle examination and after receiving the I.M.V report and post mortem report, the charge sheet against the accused was submitted. In the cross-examination of RW.1, the accused denied all the aspects stated in the examination-in- chief.
21. That herein this case the version of the prosecution witness is that the B.M.T.C bus came to the spot and dashed the deceased person and he fell down and became injured and succumbed to the injuries. It is pertinent to note that there is no injury is mentioned either in the post mortem or in any other doubts that the front parts of the body of the accused. If the B.M.T.C bus dashed 15 C.C.No.6584 - 2013 the deceased from the backside and if he fell on the road then there is definite possibility of injury in the front portion of the body of the deceased. If the B.M.T.C bus dashed to the deceased from the opposite side then there is necessarily some injuries on the deceased in the front portion of the body. But in the present case there is no single injury found on the front portion of the body of accused. This point as to how accused fell on the road and how the bus dashed to the deceased is not at all explained by the prosecution. Even, in the complaint and in the evidence, it is not clearly explained that how the bus dashed the deceased and what are the injuries sustained in the alleged accident. The complainant and eye witness versions are not corroborating with version of the doctor - PW.8 with respect to the alleged injuries. Further, no witnesses including the eye witnesses were speak about the aspect of exact place wherein the deceased person was standing at the time of alleged accident. Whether the deceased was inside the bus stop or he was on the road at the time of alleged incident was not at all explained. The pedestrian's are always expected to stand on 16 C.C.No.6584 - 2013 the pedestrian track for them. If the deceased was waiting for the bus, he is expected to wait inside bus stand. In the Ex.P.8, it is shown that the accident was took place on the road. The prosecution was not explained or shown why the deceased was standing on road though there is a pedestrian track present in the said spot.
22. The eye witnesses have deposed that there several public gather at the time of alleged accident. But, the such publics at least the neighbors were not made and examined as witness in this case. In the panchanama it is mentioned that some shop or business centers are there in the boundary side of the incident spot, but none of the persons working and cited as witness. Further, it is very important not that though the allegation against the B.M.T.C driver is leveled, none of the passengers in the bus were examined and made as witness in this case. Further, panchas in this case are not local persons. They are the residents of some different localities.
17 C.C.No.6584 - 2013
23. Though the eye witnesses supported the prosecution case, they have not clearly identified the bus driver and categorically stated how accident took place. They have not even aware of the name of the bus driver, spot mahazar. Panchas have deposed that the panchanama contents are not known to them and that even they don't know kannada language. The writer of the panchanama is not at all mentioned and examined. There is no signature of the panchas found on the Ex.P.8 - sketch.
24. That the injuries alleged to have been caused to the deceased not at all explained by the eye witnesses. The eye witnesses have not even detailed as to series of incident took place on the alleged date. Further, the panchas - PW.3 and 4 have admitted that they are working along with deceased Sri.Pradeep Kumar. Further, the doctor
- PW.8 evidence is not corroborated with the statement of the eye witnesses. The brake system of the vehicle is not at all examined by the I.M.V inspector. Further, there is no details as to whether there is blood stain on the bus or not, is not in the I.M.V report as well as in the evidence of I.O. 18 C.C.No.6584 - 2013 Further panchas have categorically admitted that they don't understand and write kannada language. This very admission of the panchas very clearly going to show that the panchanama is not at all prepared as per the dictum of panchas. Further, in the inquest pancha nama, there is no specification as to the injury caused to the deceased person. The injuries mentioned in the inquest pancha nama does not tally with the post mortem report. The wife of the deceased is not at all examined, further the persons who are alleged to have been traveling in the B.M.T.C bus are also not been examined. The best evidences i.e., shop owners present near to the alleged incident spot have not been cited as witness and they have not been examined.
25. It is cardinal principal of law that offences under section 279 - 304(a) of IPC, guilt of the accused beyond all reasonable doubts, in such cases prosecution has to prove the aspects of rashness or negligence. The death of accused is due to such rashness or negligence. Further every chain of linkage which draws only inference as to the guilt of the accused is also required to be proved. Apart from this, prosecution has to 19 C.C.No.6584 - 2013 prove the date of incident, time of the spot, the presence of the accused and the act of the accused is direct cause for the accidental death. To discuss here the important authorities applicable the case in hand. This court gone through the judgments of Hon'ble High Court. In Crl.Revision Petition No.2260/2010, Mahanthesh S/o.Yemnappa Pawar V/s The State Through Town Police Station - Gangavathi, the Hon'ble High Court of Karnataka held in Para - 12 -
"Besides, it must be kept in mind that for establishing the charge under section 304(A) of IPC., mere proof of negligence is not sufficient. Negligence in driving must be culpable and not actionable negligence. Therefore, the nature of negligence to be established for the charge under section 304(a) of IPC., is of a greater degree. Prosecution evidence is not so strong as to prove beyond reasonable doubt that the accident was only due to rash and negligent driving by the tractor driver. In the circumstances, as rightly urged by the petitioners counsel, when two versions are possible, the one in favor of the accused must be accepted and he has to be given the benefit of doubt." The Hon'ble High Court in this case very categorically held that 20 C.C.No.6584 - 2013 mere principal of negligence is not sufficient to convict the accused. In Daljith Singh Ghai and another V/s. State of Karnataka reported in ILR 2003 KAR 4849 - the Hon'ble High Court of Karnataka has held in Para No.6 - "It is well settled that the very foundation to constitute an offence there must be an act or omission on the part of the petitioner as defined under section 36 of the Act but for the purpose of Section304(A) IPC., there must be rash or negligent act on the part of the petitioner which has led to the death of the deceased." In these cases, it is very categorically held that mere carelessness is not sufficient to prosecute for the offence under section 304(a). If the ratios laid down in both the cases are applied to the case in hand, it can be easily come to the conclusion that the prosecution has failed to adduce the strong evidences which only pre-supposes the guilt of the accused. Simply, the presence of the accused and the presence of the vehicle does not prove the guilt of the accused. In the case in hand, the spot is not clearly proved and the time of the accident and the rashness or negligence of the accused is not proved beyond reasonable doubts. 21 C.C.No.6584 - 2013
26. Hence, the reasonable doubts created in this case is not at all explained and removed 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 court has come to the conclusion that prosecution has failed to prove the accusation leveled against the accused beyond reasonable doubts under section 279 - 304(a) of IPC. Hence, Point No.1 and 2 are answered in the NEGATIVE.
27. POINT NO.3: For the foregoing discussions and findings on Point No.1 and 2, following order is passed:
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 6th day of August 2016) (GANAPATI BHAT) METROPOLITAN MAGISTRATE, TRAFFIC COURT- V, BANGALORE.22 C.C.No.6584 - 2013
ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
P.W.1 Saraswathi.N. P.W.2 K.P.Nagaraj. P.W.3 Venkatesh. P.W.4 Appu. P.W.5 Devraju. P.W.6 Shakaregowda. P.W.7 D.N.Jayashankar. P.W.8 Dr.Suresh.V. P.W.9 Srinarayana.D. P.W.10 Aslam Basha. P.W.11 Raveesh.C.R.
LIST OF DOCUMENTS MARKED FOR PROSECUTION Ex.P.1 Statement of PW.1.
Ex.P.2 Complaint. Ex.P.2(a) Signature of PW.2. Ex.P.2(b) Signature of PW.10. Ex.P.3 Spot Mahazar. Ex.P.3(a) Signature of PW.III. Ex.P.3(b) Signature of PW.IV. Ex.P.4 & 5 Notice & Reply u/Sec.133 of M.V.Act. Ex.P.4(a) & 5(a) Signature of PW.7. Ex.P.6 P.M. Report. Ex.P.6(a) Signature of PW.8. Ex.P.7 I.M.V Report. 23 C.C.No.6584 - 2013 Ex.P.7(a) Signature of PW.9. Ex.P.8 Sketch. Ex.P.9 Death Memo. Ex.2(c), 3(c) 4(b) to 7(b) 8(a) and 9(a) Signature of PW.11. LIST OF WITNESSES EXAMINED AND DOCUMENTS MARKED FOR ACCUSED: NIL (GANAPATI BHAT) METROPOLITAN MAGISTRATE, TRAFFIC COURT- V, BANGALORE. 24 C.C.No.6584 - 2013