Bangalore District Court
State By R.T. Nagar Traffic P.S vs Sikandar R.S on 13 February, 2023
KABC080025162022
IN THE COURT OF THE METROPOLITAN MAGISTRATE
TRAFFIC COURT - VI, BANGALORE
PRESENT: SRI GAGAN M.R. B.A.L LLB
C/c of Metropolitan Magistrate
Traffic Court - VI, BANGALORE
DATED : THIS THE 13 th DAY OF FEBRUARY 2023
C.C. No.2354/2022
COMPLAINANT: State by R.T. Nagar Traffic P.S
Bengaluru.
(Represented by Learned APP)
V/s
ACCUSED : Sikandar R.S.
S/o. Syed Rahaman,
Aged about 44 years,
R/at Aswatha Extension,
Challakere Road,
Jagalur Post & Taluk,
Davanagere.
(Represented by Sri.M.M. Adv.,)
2
C.C.No.2354/2022
1.Date of commission of offence : 01.01.2022
2. Offences alleged against accused : U/s.279 and 338 of IPC
3. Date of recording of evidence : 03.08.2022
4. Date of closing evidence : 19.10.2022
5. Date of judgment : 13.02.2023 * * * J UD GE M E N T The Sub-Inspector of R.T. Nagar Traffic Police Station has filed the charge sheet against the accused for the offences punishable U/s.279 and 338 of IPC.
2. It is the case of the prosecution that on 01.01.2022 at 10.30 a.m. the accused being the driver of BMTC bus bearing registration No.KA-57-F-2780 drove the same within the jurisdiction of R.T. Nagar Traffic police station on JC Nagar main road in a negligent manner and at Munireddy palya bus stand when C.W.2 was trying to get down from the bus meanwhile he suddenly drove the bus, due to the impact C.W.2 fell down on road and sustained grievous injuries on his head. Thereby the accused is alleged to have committed the offences punishable U/Sec.279 and 338 of IPC.
3C.C.No.2354/2022
3. Upon taking cognizance, case came to be registered against accused for the offences punishable U/s.279 & 338 of IPC. The accused appeared before the court through his counsel & got enlarged on bail. Charge sheet copies furnished to the accused and thereby provision U/s.207 of Cr.P.C. duly complied with.
4. Plea came to be framed for the offences U/s.279 & 338 of IPC for which accused pleaded not guilty claimed to be tried.
5. During the course of trial, the prosecution has examined P.W.1 to 5 and got exhibited documents as per Ex.P.1 to Ex.P.13. On completion of prosecution side evidence, the statement of accused U/s.313 of Cr.P.C. was recorded and the accused denied all the incriminating evidence appearing against him and did not choose to lead any defence evidence.
6. Heard arguments on both sides.
7. The points that arise for my consideration are as follows:
1. Whether the prosecution proves beyond all reasonable doubt that on 01.01.2022 at 10.30 a.m. the accused 4 C.C.No.2354/2022 being the driver of BMTC bus bearing registration No.KA-57-F-2780 drove the same within the jurisdiction of R.T. Nagar Traffic police station on JC Nagar main road in a rash and negligent manner as to endanger human life, thereby the accused has committed an offence punishable U/s.279 of IPC?
2. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place the accused being the driver of the said vehicle, drove his vehicle in the above said manner. While so driving at Munireddy palya bus stand when C.W.2 was trying to get down from the bus meanwhile he suddenly drove the bus, due to the impact C.W.2 fell down on road and sustained grievous injuries on his head, thereby the accused has committed an offence punishable U/s.338 of IPC?
3. What order?
8. My answer to the above points are as under:
1. POINT No.1: IN THE NEGATIVE
2. POINT No.2: IN THE NEGATIVE
3. POINT No.3: AS PER THE FINAL ORDER For the following;5
C.C.No.2354/2022 REA S ON S
9. POINT No.1 and 2: For the sake of convenience and to avoid repetition of facts, these points are taken up for common discussion to have brevity.
10. It is the case of the prosecution that on 01.01.2022 at 10.30 a.m. the accused being the driver of BMTC bus bearing registration No.KA-57-F-2780 drove the same within the jurisdiction of R.T. Nagar Traffic police station on JC Nagar main road in a negligent manner and at Munireddy palya bus stand when C.W.2 was trying to get down from the bus meanwhile he suddenly drove the bus, due to the impact C.W.2 fell down on road and sustained grievous injuries on his head. Thereby the accused is alleged to have committed the offences punishable U/s.279 and 338 of IPC.
11. In order to prove its case the prosecution examined 5 witnesses as P.W.1 to P.W.5 and marked 13 documents as Ex.P.1 to Ex.P.13.
12. C.W.1/Mohammed Vasir is examined as P.W.1 who is complainant and mahazar witness of this case. He deposed that on 01.01.2022 at 10.30 a.m. C.W.2 was proceeding in the 6 C.C.No.2354/2022 BMTC bus from RT Nagar towards Munireddy Palya by that time while getting down from the bus, driver of the said bus moved the bus at a high speed, due to the said act C.W.2 fell down from the bus and sustained injuries, later the accused driver himself shifted the injured C.W.2 to Bowring hospital. Further he was shifted to Nimhans hospital for further treatment. Further he deposed that accident has occurred due to the fault of the driver of the offending vehicle and it is not possible for him to depose the offending vehicle number. With regard to the incident on 02.01.2022 he lodged a complaint as per Ex.P.1 and on the same day at 11.00 a.m. police conducted spot mahazar as per Ex.P.2 in his presence and obtained his signature on it. During his cross examination he admits that there were several passengers in the bus and he did not know whether the conductor has given directions to stop the bus and further admits that C.W.3 is his friend.
13. C.W.2/Mohammad Nazim is examined as P.W.2 who is the injured of this case. He deposed that on the first day of the new year at 10.30 a.m. he was proceeding in a bus from R.T. Nagar bus stand towards Munireddy palya by that time at Munireddy palya while getting down from the bus, driver of the said bus moved the bus due to that he fell down from the bus and sustained grievous injuries on his head and he was unconscious. Further he deposed when he get consciousness 7 C.C.No.2354/2022 by that time he was in Nimhans hospital. Further he deposed that accident was occurred due to the fault of the driver of the offending vehicle. Further he deposed that as he was unconscious after the incident he has not seen the driver of the offending vehicle. The witness was partly treated as hostile and he was subjected to cross examination by the learned APP.
During his cross examination he admits that the accident has taken place at a distance of 200 meters before the bus stand. He further deposed that he tried to get down from the bus before bus stand because the bus driver has opened the doors of the bus. He admits that C.W.3 is his friend.
14. C.W.3/ Mohammad Juber is examined as P.W.3 who is eye witness of this case. He deposed that on 01.01.2022 at 10.30 a.m. he was proceeding from R.T. nagar towards Munireddy palya in a bus bearing No.KA-57-F-2780 by that time at Munireddypalya C.W.2 was trying to get down from the bus meanwhile driver suddenly moved the bus, due to that C.W.2 felt down from the bus and sustained injuries on his head and he was unconscious. Further he and driver of the offending vehicle shifted C.W.2 to Bowring hospital and for further treatment C.W.2 was shifted to Nimhans hospital. Further he deposed that accident was occurred due to the fault of the driver of the offending vehicle. Further he deposed that on 8 C.C.No.2354/2022 02.01.2022 at afternoon at incident spot police conducted spot mahazar as per Ex.P.2 in his presence and obtained his signature on it.
During his cross-examination he admits that the accident has taken place 20 meters before bus stand and denied that the bus was not moving at the time of incident and admits that C.W.2 tried to get down from the bus before the bus reaching the bus stand and deposed that C.W.2 made an attempt to get down because the doors were open.
15. C.W.7 / Chandrashekar M is examined as P.W.4 who is the Investigation Officer of this case. He deposed that on the basis of information given by C.W.1 he received the complaint and registered the case in Crime No.1/2022 against the accused. He visited the spot and conducted spot mahazar and prepared rough sketch. He has issued 133 notice and received reply for notice. He has received IMV report from RTO officer and he received wound certificate.
16. C.W.8 / P Lakshmaiah is examined as P.W.5 who is the 2nd Investigating Officer of this case. He deposed that he received the case file on 20.03.2022 from C.W.7 and after 9 C.C.No.2354/2022 completion of investigation he has filed a Charge Sheet against the accused U/s.279 and 338 of IPC.
17. Out of the documents marked for prosecution Ex.P.1 is the complaint, Ex.P.2 is the seizer mahazar, Ex.P.3 is the statement of P.W.2, Ex.P.4 is the FIR, Ex.P.5 is the rough sketch, Ex.P.6 & 7 are the notice and reply U/Sec.133 of IMV Act, Ex.P.8 and 9 are trip sheet and log sheet, Ex.P.10 is the indemnity bond, Ex.P.11 is the IMV report, Ex.P.12 is the wound certificate & Ex.P.13 is the photo.
18. In the light of the above material available on record, the learned APP argued that there is sufficient material on record to convict the accused, in the instant case the witnesses deposed that the accused was driving the vehicle when accident was taken place. The learned counsel for the accused contended that the accused driver has not committed any negligent act. It is the act of the accused which is resulted in accident. There is a contributory negligence on the part of the accused the court has to take that aspect into consideration on these grounds he prays for acquittal of accused person.
19. The prosecution has alleged that the accused has committed the offences punishable U/Sec.279 and 338 of IPC. Section 279 IPC deals with rash and negligent driving of any 10 C.C.No.2354/2022 vehicle or riding on a public way in a rash and negligent manner so as to endanger human life or likely to cause hurt or injury to any person. In order to constitute an offence U/s.279 of IPC, it must be established that the accused was driving the vehicle on a public way in rash and negligent manner to endanger human life or to likely cause to hurt or injury to any other person. For the purpose of section 279 rash and negligent may be described as criminal rashness or criminal negligence. It must be more than mere carelessness of error of judgment. The essential ingredients of section 279 are: (1) rash and negligent driving or riding on a public way, (ii) The act must be such as to endanger human life or likely to cause hurt or injury to any person.
20. In the case on hand it is alleged that the accused driver drove the vehicle when passengers are getting down from the bus and due to the said act the victim injured. In the instant case the injured as well as the eye witness deposed that the victim made attempt to get down from the bus while the bus was moving and it has not reached the designated bus stop, before reaching bus stop the doors of the bus were opened by the accused seeing that made an attempt to get down and in that process he fell down and sustained injuries. As per the version of the injured while he was getting down from the bus there were other passengers who were in the bus. But none of them were shown as witness. In such circumstances the court 11 C.C.No.2354/2022 has to look the version of the complainant in suspicious manner since it can not be completely ignored that contributory negligence on the part of the victim as well. In the instant case it is admitted fact that the said bus which caused injury to victim has facility of automatic door closure and the control lies with driver of the bus.
21. It is common knowledge that the terms "rash" or "negligent" have not been defined in the Indian Penal Code. Be that as it may, a rash act can be inferred to primarily mean an over hasty or reckless act as opposed to a deliberate act or design. It basically denotes want or lack of proper care and caution and connotes an overt act with the consequence of risk that evil consequences might follow but with the hope that they will not happen. With regards to the term "negligence", a reference here may be made to the observation of the Hon'ble Supreme Court in the case of Ravi Kapur vs. State of Rajasthan (2012) 9 SCC 284 where the Hon'ble Apex court held that "
'Negligence' means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do."12
C.C.No.2354/2022
22. A plain reading of the evidence on record and viewing it in the light of the well construed meaning of the two terms brings to the forefront that all the witnesses have failed to reflect any semblance of rashness or negligence purportedly exhibited by the accused, which could constitute an offence under the said Section. Giving impetus to such observation are largely the testimonies of P.W.3, who is the only eye witnesses to the incident with P.W.2, being merely hearsay and the remaining two being official witnesses. Thus, it goes without saying that the evidence of the two aforesaid witnesses will have a material bearing on the outcome of this case. However, the two eye witnesses failed to shed much light about the manner in which the accident had transpired. In view of the same, I am of the considered opinion that in the absence of any proof of negligence or rashness, which the prosecution in the firm opinion of this court has failed to establish, the accused cannot be adjudged to be responsible for the commission of the alleged offence. Situated thus, this point is decided in negative and thus goes in favor of the accused.
23. kThe pre-requisites for an offence under Section 338, I.P.C. are rash or negligent act of the accused which endangers human life or personal safety of others and causing grievous hurt in consequence of such act. In the instant case, it is transparent based on the evidence adduced by the Prosecution, 13 C.C.No.2354/2022 more specifically through the depositions of P.W.1 to 3 corroborated by the other witnesses that the accident resulted in grievous hurt to Mr.Mohammed Nazim. However, taking cue from the holding of this Court in the foregoing point, it comes to the fore that the overt act of rashness or negligence, which is the sine qua non for an offence under the said section could not be established by the prosecution and thus the materials on record manifestly do not constitute an offence under the said section. In view of the same, this point is decided in negative and again goes in favor of the accused.
24. Point No.3: In view of 'Negative' findings on the above points, the accused is entitled for acquittal on the ground of doubt benefit. Therefore, I proceed to pass the following:-
O R DE R Acting U/s.255(1) of Criminal Procedure code, the accused is hereby acquitted of the offences alleged against him punishable U/s.279 & 338 of IPC.14
C.C.No.2354/2022 Bail bonds of accused and surety bonds shall stands cancelled after the appeal period.
(Dictated to the Stenographer directly on computer, typed by her, corrected and then pronounced by me in the open Court this the 13 th day of February 2023).
(GAGAN M.R.) C/c MMTC - VI, BANGALORE.
ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1 Mohammad Vasir PW.2 Mohammad Nazim PW.3 Mohammad Juber PW.4 Chandrashekar M PW.5 P Lakshmaiah
LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1 Complaint Ex.P.2 Spot mahazar Ex.P.3 Statement of P.W.2 Ex.P.4 FIR Ex.P.5 Rough sketch Ex.P.6 Notice U/s 133 of IMV Act Ex.P.7 Reply to the notice U/s 133 of IMV Act Ex.P.8-9 Trip sheet & Log sheet 15 C.C.No.2354/2022 Ex.P.10 Indemnity bond Ex.P.11 IMV report Ex.P.12 Wound Certificate Ex.P.13 Photo
LIST OF WITNESSES EXAMINED FOR ACCUSED:
Nil LIST OF DOCUMENTS MARKED FOR ACCUSED:
Nil (GAGAN M.R.) C/c MMTC - VI, BANGALORE.