Bangalore District Court
State By vs Vishwanathan S/O.Late Iruchan on 10 April, 2015
IN THE COURT OF THE X ADDL.C.M.M.
MAYO HALL UNIT, AT BENGALURU
Dated: This the 10th day of April 2015
PRESENT: Sri.ARJUN.S.MALLUR,
B.A.L., LL.B.,
X Addl. Chief Metropolitan Magistrate,
Bengaluru City.
C.C.No.22809/2007
Complainant - State by, Police Sub Inspector
HAL Police Station
/vs/
Accused 1. Vishwanathan S/o.late Iruchan, 63 yrs.
No.179, 7th Cross, Subbannapalya,
Jaijawannagar, Bengaluru.
2. Arvind Kumar S/o.I.Raju, 33 yrs.
No.G.82, 3rd Main, HAL Old
Township, Bengaluru.
JUDGMENT
1. The P.S.I of HAL police station have filed this chargesheet against the accused Nos.1 and 2 for the offence punishable u/S.304-A of IPC.
2. It is alleged by the prosecution that the accused Nos.1 and 2 being the Instructor and Manager of HAL Sports Club situated at Marthahalli acted in rash and negligent manner endangering human life and personal safety which resulted in deceased Santhosh 2 CC No.22809/2007 drowning in the Swimming Pool while trying to learn swimming on 20/4/2007 at 3.00 PM and thereby committed the alleged offence.
3. On the basis of the complaint filed by CW.1, a case was registered in HAL P.S., Cr.No.172/2007 and FIR was submitted to the court. Panchanama of scene of offence was conducted in presence of panchas and statement of witnesses were recorded. Inquest of the deceased was conducted. After collecting the post mortem report of the deceased and on completion of investigation chargesheet has been filed against the accused for the alleged offence.
4. Cognizance of offences was taken and summons was issued to the accused persons. Accused have appeared before the court through their counsel and have been released on bail. Copies of chargesheet were furnished u/S.207 of Cr.P.C. Substance of accusation was readover to the accused and the accused pleaded not and claimed to be tried.
5. The prosecution in support of its case has examined 5 witnesses as PWs.1 to 5 and got marked 9 documents as Exs.P1 to P9. Statements of accused u/S.313 of Cr.P.C. were recorded and the accused have denied the circumstances incriminating them in the evidence.
3 CC No.22809/2007
6. Heard the arguments of Sr.APP appearing for the state and the counsel for accused and perused the records.
7. The points for consideration is:
1. Whether the prosecution proves beyond doubt that the accused being the Manager and Instructor at HAL Sports Club on 20/4/2007 acted in a rash and negligent manner so as to endanger human life and personal safety of others and while undertaking training of the swimming resulted in Santhosh drowning in the swimming pool subsequently resulting in his death not amounting to culpable homicide and thereby committed the alleged offences?
2. What order?
8. My answer on the above points:
Point No.1 - Negative, Point No.2 - As per final order, for the following;
REASONS
9. POINT NO.1:
The prosecution in support of its case has examined five witnesses. PW.1 Anandan is the complainant and the father of deceased Santhosh. He has deposed that on 20/4/2007 his son had gone for learning swimming at HAL Sports Club and around 3.00 PM when he returned home the friends of his son came and told his son 4 CC No.22809/2007 had drowned in swimming pool and thereafter he rushed to HAL hospital and thereafter his son was shifted to Manipal hospital where his son breathed last on 23/4/2007. It is deposed by PW.1 that his son had been a Life Member to Sports Club and had enrolled for purpose of swimming and A.1 was the swimming coach and A.2 was the Manager who had not taken proper safe guards before asking his son to enter the pool which resulted his son drowning. In the course of examination of PW.1 application of Membership of the Club, Attendance Register and the Registers are marked as Exs.P2 to 6.
10. PW.2 Narasimha Murthy is the Deputy Secretary of HAL Sports club who has produced the documents at Exs.P1 and 2 before the I.O. as per the directions given by the I.O.
11. PW.3 Ramanujam is the friend of PW.1 who has deposed that on 20/4/2007 he came to know deceased Santhosh died on account of drowning in swimming pool, for want of proper care by the Instructor the incident has taken place.
12. PW.4 Ramesh is another colleague of PW.1 who has deposed that he came to know the death of Santhosh by drowning in the swimming pool.
5 CC No.22809/2007
13. PW.5 Yatish who is the friend of deceased and who had also gone to swimming pool to learn swimming has turned hostile to the prosecution denying any negligence on the part of the accused which resulted in drowning of Santhosh in the swimming pool.
14. Apart from PWs.1 to 5 the prosecution has not examined any other witness. In order to attract the offence punishable u/S. 304-A of IPC the prosecution must establish the death of the victim was on account of rash and negligent act of the accused. The prosecution must establish that there was direct nexus and close proximity between the negligent act of accused resulting in the death of victim. The prosecution in this case has examined 5 witnesses. PW.1 is the father of deceased and PWs.3 and 4 are his colleagues. PW.1 has deposed that on 20/4/2007 when he returned home the friends of his son came and told that his son had drowned in swimming pool and had shifted to HAL hospital and thereafter he went to hospital and shifted his son to Manipal hospital where his son died on 23/4/2007. PW.1 has deposed that the accused who were swimming pool instructor and Manager of the HAL Sports Club had not taken safeguards which resulted in death of his son and therefore they are liable for the said act. In the course of evidence of PW.1 the 6 CC No.22809/2007 prosecution has got marked application for the Membership of the Sports Club, letter issued by Sports Deputy Secretary, attested copy of the attendance register along with original attendance register. These documents at Exs.P1 to 6 speak about deceased having been present and had gone for swimming training on the alleged date of incident. Though there is no dispute that the accused were swimming instructor and Manager of the Sports Club as on the alleged date of incident, there is no evidence regarding they being directly responsible in any manner for drowning of deceased. The documents produced by the prosecution and the evidence of PW.1 does not in any manner go to show drowning of Santosh was on account of rash and negligent conduct of accused. As per the Attendance Register at Ex.P6 along with deceased about 30 other children have also attended training among them one witness Yatish is examined as PW.5 who has turned hostile to the prosecution denying any negligence on the part of accused persons which resulted in death of the victim. PWs.3 and 4 are the colleagues of PW.1 who came to know about the incident subsequently and their evidence does not in any manner substantiate the rash and negligent conduct of accused resulting in drowning of victim. Under these circumstances there being no evidence regarding 7 CC No.22809/2007 rash and negligent conduct of the accused resulting in drowning of deceased Santhosh, it cannot be said that death of Santhosh was on account of rash and negligent conduct of accused and therefore, it cannot be said that prosecution has been able to prove the alleged offence beyond reasonable doubt and accordingly, I answer Point No.1 in the Negative.
15. POINT NO.2:
For the afore said reasons, I pass the following;
ORDER U/s 255(1) of Cr.P.C. the accused Nos. 1 and 2 are acquitted of the alleged offence punishable u/s 304-A of IPC. Bail bonds of accused stand cancelled and they are set at liberty. (Dictated to the Steno, transcribed by him, same was corrected by me and then pronounced in open court on this the 10th day of April 2015).
(ARJUN.S.MALLUR) X A.C.M.M., BENGALURU 8 CC No.22809/2007 ANNEXURE LIST OF WITNESSES EXAMINED Prosecution Defence PW.1 Anandan Nil PW.2 Narasimha Murthy.
PW.3 Ramanujam.
PW.4 Ramesh.
PW.5 Yatish.
Exhibits Marked Ex.P1 Covering letter.
Ex.P1(a)Signature of PW.2.
Ex.P2 Certified copy of Membership of Deceased Santhosh.
Ex.P3 Certified copy of Attendance Ex.P4 Statement of PW.1.
Ex.P4(a)Signature of PW.1.
Ex.P5 Application for HASC Membership Ex.P5(a)Signature of PW.1.
Ex.P6 Attendance register Ex.P6(a)Name of deceased.
Ex.P6(b)Signature of deceased Ex.P7 Inquest Ex.P8 P.M.Report.
Ex.P9 Statement of PW.5.
Material Objects got marked
-Nil-
X A.C.M.M., Bengaluru.