1 Of 24 CC 216 of 2016
IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE
NAMPALLY CRIMINAL COURTS: AT HYDERABAD
PRESENT: SRI. D. DURGA PRASAD
CHIEF METROPOLITAN MAGISTRATE
HYDERABAD.
Dated on this the 9th day of NOVEMBER, 2023
C.C.No. 216 OF 2016 BETWEEN:
The State of Telangana through The Sub-Inspector of police, Chandrayangutta PS, Hyderabad. ….Complainant A N D
SYED ALI S/o SYED SABER ALI, Age: 35 years, Occ: Servicing center, R/o H. No: 18-2-45/A/B, G M Colony,
Chandrayangutta, Hyderabad ...Accused
This case having come before me for final hearing on dt. 02- 11-2023 in the presence of the learned Asst. Public Prosecutor on behalf of Prosecution and of Sri. Muzaffar Ullah Khan, the learned Counsel for accused, upon hearing the both the sides and after having stood over for consideration till this day, this court made the following:-
J U D G M E N T
1.The Sub-Inspector of police, PS Chandrayangutta has filed charge sheet against the accused in Cr.No. 359/2015 for the offences punishable under Section 304-A IPC and Section 130(2) r/w 177 of Motor vehicle Act.
2.The gravamen of the accusation against the accused is that on 28-10-2015 at 20:30 hours, LW.11/Mohd Jameeluddin, Head Constable received a complaint from Syed Mustafa Iqad (PW.1) wherein he stated that residing along with his wife/Nasreen Sultana and four daughters & two Sons at H.No. 18-2-45/A/6/C, Chandrayangutta, Hyderabad. That on 2 Of 24 CC 216 of 2016 28-10-2015 at 5.00 to 5.30 PM, when his wife along with children were at his residence, meantime his neighbour- Sayeed stated he drove his TATA
Safari vehicle B.No. AP 23 L 0009 in rash & negligent manner, dashed his second son Syed Hamzala Surain, age about 1½ years who was playing on road in front of house, due to which he got head injury and got unconscious. This incident was seen by many of locality people.
Immediately his wife and local people took his son to Owaisi Hospital where the duty doctor declared as brought dead. When he returned back, the dead body was kept in his house and found his son dead with head injury. Hence he requested to take necessary action against Sayeed (Syed
Ali) who drove the TATA Safari vehicle in rash & negligent manner and caused death to his son.
On receipt of the above complaint, LW.11/Mohd Jameeluddin,
Head Constable registered a case in Cr.No. 359/2015 U/s 304 (A) IPC and the case file handed over to K. Laxmaiah, SI of police (Pw7).
During the course of investigation, Pw7 examined PW-1 and recorded his statement, then he visited the scene of offence located at GM colony, Chandrayangutta, Hyderabad and found the dead body lying on a cot in the house of complainant. Pw7 caused enquiries and examined
Naseem Sulthana (Pw2), Abdul Rahaman Ghori (PW.3) and Lw3/Sri Shaik
Ali and recorded thei statements. Pw7 secured the presence of two panchyatdars i.e., Younis Bin Ahmed Basravi (Pw5) and Lw8/Majeed at
Pw1’s house and in their presence conducted Inquest over the body of the deceased- Syed Hamala Surain, Age: 1 ½ years and got shifted body to 3 Of 24 CC 216 of 2016 mortuary of OGH for Postmortem Examination. Subsequently PW.7 also conducted the scene of offence observation cum seizure panchanama and drawn the rough sketch of Scene in the presence of Mohamed Ahmed
Hussain (Pw4) and Lw5/Syed Akbar Ali. Dr K V Ramesh/LW-9 conducted autopsy vide PME No. 4530/2015 and after autopsy, the dead body was handed over to his blood relatives under proper acknowledgment for performing funeral rites.
On 31-10-2015 in the morning time, while Pw7 was present in the Police station, the accused Syed Ali (Sayeed) voluntarily came to
Police station and surrendered himself before Pw7 admitting his guilt, as such Pw7 took him into the custody, thoroughly interrogated. Pw7 verified the vehicle documents and found it to be correct and the accused produced driving license and found it valid, but the crime vehicle is not insured with any insurance company, therefore Pw7 added the Section of
Law 130(2) r/w 177 of Motor Vehicle Act to existing section. Then effected arrest of accused and produced before the court. During the course of investigation, Pw7 obtained the Postmortem Examination report from doctor/Lw7 who conducted the autopsy of the deceased opined that the cause of death is due to "Head injury".
Further on requisition filed by PW.7, M. Kiran Kumar, MVI inspected the crime vehicle at police station and gave opinion that the crime vehicle is in good condition, and found that the accident is not due to any mechanical defects of the vehicle. After, completion of 4 Of 24 CC 216 of 2016 investigation, PW.7 filed charge-sheet against the accused for the offences under Section 304-A IPC & Sec. 130(2) R/w 177 of Motor vehicle Act.
TAKING COGNIZANCE:-
3.Based on the material available, the case was taken on file for the offence punishable under Section 304-A IPC.
FURNISHING OF COPIES AND EXAMINATION
4.Pursuant to the receipt of summons and on appearance of the accused, the copies of case documents were furnished to him as contemplated under Section 207 of Cr.P.C.
5.This court after finding prima-facie material against the accused, has examined the accused under Section 251 of Cr.P.C and the contents of accusation for the offence under Section 304-A IPC and 130(2) of Motor vehicle Act were read over and explained to accused in his vernacular language, for which he pleaded not guilty and claimed to be tried.
6. To bring home the guilty of the accused, the Prosecution has cited total (12) witnesses and got examined Pws.1 to Pw7 and exhibited
Ex.P1 to P7. The accused did not examine any witnesses, but marked
Ex.D1 during cross examination of PW.3.
7.After closure of Prosecution evidence, the accused was examined under section 313 of Cr.P.C by explaining the contents of 5 Of 24 CC 216 of 2016 incriminating evidence available against him, which he denied and reported no defence evidence.
8. I have given my anxious consideration to the submissions made by the respective learned counsel and the learned APP. Perused the material on record.
ARGUMENTS PUT FORTH BY PROSECUTION SIDE
Learned Addl. Public Prosecutor- Sri Sudhakar on behalf of the prosecution side argued inter alia that this case is of FATAL ROAD
ACCIDENT wherein driver - Syed Ali of Tata safari bearing No. AP 23 L 0009 drove the vehicle in rash and negligent manner and dashed to deceased at his residence 18-2-45/A/G/C. G.M Colony Chandrayangutta, on 28-10-2015 at 5:00 to 5:30 PM due to which deceased by name Syed
Hamzala Surain fell down on the road and received bleeding forehead injury and succumbed to injuries. He further argued that the evidence on record clearly establishes the case of the prosecution side beyond all reasonable doubt, as such, the accused is required to be convicted of the offence alleged against him.
ARGUMENTS PUT FORTH BY DEFENCE SIDE
On other hand, the learned defence counsel for the accused negated the prosecution case and contended that the story is cooked up and that the allegation made are false and that the accused is no way related to the accident. The learned Counsel for accused vehemently contended that there is no iota of truth in the prosecution witnesses, as such the accused is entitled for acquittal.
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9.Now the point for determination is:
“ Whether the prosecution has proved the guilt of the accused for the offences punishable under Section 304-A IPC and Sec. 130(2) of Motor vehicle Act beyond all reasonable doubts?
POINT
10. The prove its case, prosecution relied upon the testimonies of
PWs.1 to 7 and also on the documentary evidence vide Ex.P1 to P7.
> Pw1 is the defacto complainant and father of the deceased – Ex.P1 is marked through Pw1.
> Pw2 is the wife of Pw1 and mother of deceased and eye witness.
> Pw3 is the eye witness and neighbour of the deceased.
> Pw4 is one of the panch witness for the scene of offence panchanama –
Ex.P2 scene of offence panchanama and rough sketch/Ex.P3 are marked through him.
> Pw5 is the one of the panchyathdar for the Inquest panchanama-Ex.P4
Inquest panchanama is marked through him.
> Pw6 is the Motor vehicle Inspector and Ex.P5 is MVI report is marked through him.
> Pw7 is the investigating officer – Ex.P6 PME report and Ex.P7 FIR are marked through him.
The investigating agency filed a report that Lw3/ Shaik Ali (who is one of the eye witness), Lw9/Dr KV Ramesh (who conducted autopsy) are not available, and filed a report that Lw5/Syed Akbar Ali 7 Of 24 CC 216 of 2016 (one of the panch witness for the scene of offence panchanama) died, as such court is constrained to close their evidence.
The learned APP has given up the evidence of Lw8/Syed
Majeed who is one of the panch witness for the Inquest Panchanama and also the evidence of Lw11/Sri Syed Jameeluddin who issued FIR.
11. Basing on the evidence led by the prosecution and after due consideration, I opine that the case is ended in NEGATIVE. Now, let me demonstrate as to how I came to conclusion that the case ended in
ACQUITTAL.
12. Before, I dwell into the prosecution evidence, let me go through the sections alleged against the accused by the prosecution.
Section 304-A of IPC
Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both
Section 130(2) of Motor vehicle act
The conductor, if any, of a motor vehicle on any public place shall on demand by any officer of the Motor Vehicles Department authorised in this behalf, produce the licence for examination.
2[(3) The owner of a motor vehicle (other than a vehicle registered under section 60), or in his absence the driver or other person in charge of the vehicle, shall, on demand by a registering authority or any other officer of the Motor Vehicles Department duly authorised in this 8 Of 24 CC 216 of 2016 behalf, produce the certificate of insurance of the vehicle and, where the vehicle is a transport vehicle, also the certificate of fitness referred to in section 56 and the permit; and if any or all of the certificates or the permit are not in his possession, he shall, within fifteen days from the date of demand, submit photo copies of the same, duly attested in person or send the same by registered post to the officer who demanded it.
13. At this juncture, it would be appropriate to refer to the decision of the Hon’ble Supreme Court of India in the case of
Mohanlal Shamlal Soni Vs. Union of India and another reported in
AIR 1991 SC 1346, wherein Hon’ble Apex Court observed that the cardinal rule in the law of evidence states that only the best available evidence should be brought before the court of law to prove a fact or the points in issue.
DISCUSSION AND THEREOF:-
14. On 28-10-2015, an unfortunate accident takes away the life of a child who is playing at his house which is alleged to have been done by the accused. So, the burden lies on the prosecution to establish the same.
Section 304-A of IPC has two components in it. The result of death should be out of rash or negligent act by the accused. It mandates that whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide be punished. Therefore, the act should be either rash or negligent.
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15. PW.1 is the Defacto complainant who has moved law into motion by way of presenting complaint vide Ex.P1 which is registered as
FIR vide Ex.P7 by Pw7.
16. Nucleus of Ex.P1 appears that on 28-10-2015 at 5:00 to 5:30
PM, when PW2 along with children were at their residence, meantime his neighbour Sayeed stated he drove his TATA Safari vehicle B.No. AP 23 L 0009 in rash & negligent manner, dashed his second son Syed Hamzala
Surain, age about 1½ years who was playing on road in front of house due to which he got head injury and got unconscious and that the incident was seen by many of locality people. Immediately his wife and local people took his son to Owaisi Hospital where the duty doctor declared the complainant’s son dead. Later the deceased body was kept in the house who died with head injury.
17. Pw1 oral evidence is reiteration of Ex.P1 report. Pw2 evidence also stood on the same lines with that of the evidence of Pw1. Pw3 is the eye witness and he lends assurance to the testimonies of Pw1 and Pw2 and further stated that he can identify the driver of crime vehicle. Pw3 even did dock identification of the accused as the driver of crime vehicle.
The afore-mentioned stands undisputed to the extent of the occurrence of the accident and death of the child in the accident.
18. Before, I scan and scrutinize the testimonies of Pw1 to Pw3 to ascertain about the role of the accused in the accident, let me go to the evidence of other witnesses examined by the prosecution.
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19. Pw7/Sri Laxmaiah is the investigating officer. The law was launched by Pw1 by filing the report with the police which is registered as a case in crime number 359/2015 by Lw11/Sri Jameeluddin for the accident taken place on 28-10-2015. Pw7 during the course of investigation, has examined Pw.1 at Police station, went to the scene and examined other witnesses, conducted scene of offence panchanama along with rough sketch, conducted inquest panchanama in the presence of panch witnesses, gave requisition to Dr KV Ramesh/Lw9 to conduct autopsy and to Pw6 to inspect crime vehicle. Dr KV Ramesh/Lw9 conducted autopsy and Pw6 inspected crime vehicle, then Pw7 arrested the accused and after collecting relevant documents filed charge sheet. The learned APP has got marked Ex.P6 is Postmortem Examination Report,
Ex.P7 - FIR through Pw7.
20. In order to establish the investigation done by Pw7 about
Inquest, scene of offence panchanama and rough sketch, Postmortem
Examination and crime vehicle inspection, the learned APP has got examined Pws. 4 to 6.
Pw5 is one of the panch witness for the Inquest panchanama who testified that on 29-10-2015 around 8.30 AM, police of
Chandrayangutta called him and another person to the scene of offence and conducted inquest panchanama over the dead body of the deceased by name Syed Hamzala Surain who died in an accident and sustained head injury. He further stated that he observed crush injury on his abdomen 11 Of 24 CC 216 of 2016 and he came to know that he met with an accident dashed by the Car and that the Police Chandrayangutta drafted inquest panchanama vide
Ex.P4 and obtained their signatures. Learned counsel reported no cross examination.
The unchallenged cogent evidence of Pw5 coupled with Ex.P4 categorically corroborates the evidence of Pws. 1 to 3 about the injuries occurred to the child in the accident and also death of the child in the accident.
21. Now coming to the testimony of one of the panch witness for the scene of offence panchanama and rough sketch. The story of the prosecution takes off stating that the accused is neighbour of the deceased house.
22. Pw4/Sri Mohd Ahmed Hussian is one of the panch witness for the scene of offence panchanama and rough sketch vide Ex.P2 and Ex.P3 and his evidence appears that on 28-10-2015 during evening hours, police of Chandrayangutta called him and Lw5/Syed Akber Ali to G.M. Colony and conducted scene of offence panchanama in connection with an accident case, and drawn rough sketch. He further stated that at the scene, he observed one TATA Safari bearing No. AP 23 L 0009, which is crime vehicle and also observed blood stains at the scene.
It is elicited from his cross examination that he reached the
Scene of Offence after half an hour of the accident. So, he is not the eye 12 Of 24 CC 216 of 2016 witness to the accident and came to know about the details of the accident either through police or on enquiry with others, but it is not stated in his evidence as to how he came to know about the details of the accident. Nothing contra is elicited from the testimony of Pw4 about the occurrence of the accident and also conducting of Ex.P2 and Ex.P3 by
Pw7. Thus the oral evidence of Pw4 coupled with Ex.P2 and Ex.P3 corroborates the testimony of Pw1 to Pw3 about the occurrence of the accident and also substantiates the version of Pw7 about his investigation of conducting Ex.P2 and Ex.P3.
23. The Learned Defence Counsel vehemently contented that the evidence of the material witnesses failed to establish the role of the accused and evidence of the material witnesses suffers with material contradictions, improvements and surmises.
So, the point survived for the prosecution to establish is a. Whether the case of the prosecution witnesses does not suffer with improvements, surmises and contradictions?
b. Whether the identification of the accused is done without any reasonable doubt?
c. Whether the prosecution could connect the accused to the crime ?
d. Whether the accused is the owner of the crime vehicle? and e. the child is not the reason for the occurrence of the accident?
24.Prosecution case appears that the accident took place in-front of the house of Pws.1 and Pw2 when the child is playing and in Ex.P1 13 Of 24 CC 216 of 2016 also PW.1 stated the said fact that the accident occurred when his son was playing on road infrong of his house. PW1 further stated that it is 20 feet road in front of their house, nobody used to park their vehicle in front of their respective houses and accused also never parked his car in front of his house and that accused used to park vehicles on the said road in front of their road.
25.Ex.P2 Scene of offence panchanama also disclosed that accident took place infront of PW1 house and also that the blood stains on the road. So as seen from the evidence of Pws. 1 and 2 coupled with Ex.P2 it is categorically shows that the place of the accident is infront of the house of Pws.1 and 2 and it is further established that the vehicles are never parked in-front of house of Pws.1 and 2 and even the accused never parked his vehicle infront of house of Pws.1 and 2. As such, it is established that the vehicles are never parked infront of house of Pws.1 and 2 and it is also established that accused used to park his vehicle in the said road in front of their road but not in front of house of PW1 and
PW2. Further, Ex.P3 does not whisper the house of accused. So the
Prosecution failed to establish before the court that the accused has house infront of the house of Pws.1 and 2 and also that the accused is the neighbour of Pws.1 and 2.
26.As per the version of the prosecution, Pw2 came out of the house on hearing big noise and found that her son met with an accident 14 Of 24 CC 216 of 2016 and he was dashed by one Black TATA Safari vide bearing No. AP 23 L 0009 driven by accused in a rash and negligent manner with high speed.
It is elicited from the cross-examination of PW.2 that by the time she came out of the house, she noticed that her son sustained severe blood injury and he is in pool of blood. So, by the time, PW2 came out of the house, the accident already took place and she found her son in pool of blood as such, she is not eye witness to the accident.
27.Pw3 is the eye witness to the accident as per case of the prosecution and he stated that he pick up the boy from the scene and called the mother who is inside but, where as Pw2 stated that she found her son under the tyre and she took out her son from the tyres of the vehicle. The contradictory version of Pws. 2 and 3 about picking up the deceased from the tyres of the vehicle is fatal to the case of the prosecution as the evidence of witnesses examined by the prosecution categorically shows that there is distance between the vehicle and the deceased which has been whispered by Pws.3 and 4. Further PW3 admitted that he did not state to the police as in Ex.D1. Ex.D1 is (Nenu)- himself. So the statement of Pw3 shows that himself along with others took the deceased to the hospital. But, as admitted by him as in Ex.D1, his version that he took the deceased to the hospital is material improvement.
28.The admission made by PW3 that the accused is not present at the time of accident and also that the crime vehicle does not belongs to 15 Of 24 CC 216 of 2016 accused is contra to that of his own version as he stated that he has seen the accused at the place of accident and even the prosecution says that the accused informed PW2 about the accident.
Regarding the ownership of the crime vehicle, for the best known reasons to the investigating officer, Pw7 did not ascertain the owner of the crime vehicle knowingly that the accused is not the owner of the crime vehicle. There is no plausible explanation from PW7 and from the prosecution as to why the ownership is not ascertained when it is very much evident that the accused is not the owner of the crime vehicle. Had the ownership is ascertained, the true fact of the accused driving the vehicle would have come to the light.
29.PW2 stated that the Police enquired with her second daughter and it is admitted that second daughter is present at the time of accident.
There is no explanation offered by PW7 as to why he did not examine the second daughter of Pws.1 and 2 who is eye witness to the accident. Had she been examined, the true facts about the role of the accused would have come to the light.
30.PW7 admitted that the name of the accused is written as
Sayeed in column No.7 of FIR and further admitted that they mentioned for the first time as Syed Ali in Charge sheet and he did not mention in the charge sheet that Sayeed and Syed Ali are one and the same and that no document is filed for the same. Ex.P1 clearly shows that the neighbour
Sri Syed informed about the accident. Ex.P7- FIR is not an encyclopedia.
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It is not fatal to the case of the prosecution if the entire details of the name of the accused is not disclosed. The statement of PW2, and the elicited version from the cross examination of PW2 shows that the name of accused is Sayed Ali Ex.P20 scene of offence panchanama also discloses the name of the accused is Sayed (Syed Ali). The notice given to the accused under 41 A. Cr.PC, arrest intimation discloses the name of the accused as Syed Ali. There is no dispute raised by the accused when he was issued 41- A Cr.PC Notice, arrest intimation with the name as Syed
Ali. As such, Pw7 not filing any document to show that Sayed and Syed
Ali are one and the same is not fatal is the case of the prosecution.
31.Thus, the evidence of Pws.2 and 3 is not helpful to connect the accused in crime as their evidence does not establish that the accused is the owner of the vehicle, that he is present at the time of accident and also that he drove the vehicle and caused the accident.
32.Now coming to the condition of the crime vehicle, to establish that the crime vehicle is in good condition and there is no mechanical defect, Pw6 who is the motor vehicle inspector is examined by the prosecution. He stated that on 29-12-2015, he received requisition to inspect the crime vehicle B.No.AP 23 L 0009 Motor Car and accordingly on 29-12-2015 at 5:00 PM, he inspected it and found the damages mentioned in Column No. 8 of Motor Vehicle Inspection report.
He opined that the accident was not due to any mechanical defect of the crime vehicle and issued Motor Vehicle Inspection report vide. Ex.P5.
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33.It is elicited from the cross examination of Pw6 that he did not record the age of the vehicle and admitted that the higher bonnet of
SUV is 3 to 4 feet but denied that the visibility is not there and also further denied that the visibility is less when compared with other cars but stated that when compared to regular cars, SUV vehicles has clear visibility.
It is evident that the visibility for any vehicle with 3 to 4 feet higher bonnet is much clear from far distance though it is not visible clearly in near distance. Technically there is no evidence placed before the court regarding the distance of the vehicle prior to the accident. Pw2 stated that she heard big sound of acceleration by accused thrice. The big sound of acceleration occurs when the vehicle is stopped all of sudden as such, it establishes that the deceased child is clearly visible before the accident. As said by PW6 all SUV vehicles has clear visibility than ordinary cars corroborates the stand taken by Pw6 that the SUV vehicles has less visibility with 3 to 4 feet higher bonnet.
34.The accident has taken place on 28-10-2015 whereas the motor vehicle inspector received the requisition on 29-12-2015 and he examined the crime vehicle on the same day. He stated that he found damages and mentioned the same in column No.8 of MVI Report but whereas in column
No. 8 of Ex.P5 it shows that there are “NO DAMAGES” as such, the oral version of PW6 is contra to that of Ex.P5. PW6 inspected the crime vehicle after lapse of two months from the date of accident and even the 18 Of 24 CC 216 of 2016 column No.4 of Ex.P5 shows that the crime vehicle was shifted to the
Police Station and he examined the vehicle at Police Station. The delay in examining the crime vehicle gives benefit of doubt to the accused.
Further, as the vehicle was not examined at the place of accident and it was examined after two months approximately, there is no chance of finding out or noting the skid marks of the vehicle for ascertaining the speed of the vehicle.
35.It is true as per Ex.P4 there is blood on stairs and on road and there is clue team at the place of accident and that clue team did not examine the blood on the tyres on the car. Further, there is no explanation as to why the blood stains is not produced before the court even though it is stated that it has been collected from the scene and also there is no explanation as to why the blood stains are not collected from the tyres of the crime vehicle. The evidence of the witness goes to shows that tyres went over the deceased and caused the accident as such, there is every chance of blood stains on the tyres of the crime vehicle. The lacuna on part of the investigating officer to collect the blood stains from the tyres of the crime vehicle though there is clue team present at the scene and further the failure on part of investigating officer to place the seized blood stains before the court is fatal to the case of the prosecution.
36.It is held by the Honble Apex Court that the cause of death should be a direct consequence of the act of the accused and that should 19 Of 24 CC 216 of 2016 be an act either rash or negligent and proximate to the cause of such death. By no stretch of imagination the petitioner can be hauled into the proceedings for offence punishable under section 304-A of IPC if cause of the death is not due to rash and negligent manner.
37. Now let’s turn on to the next point whether accused person was driving the vehicle in a rash and negligent manner.
38. PW7 admitted that he did not mention in the charge sheet that accused is driving the vehicle at high speed and further admitted that it takes about 100 to 200 meters distance to attain 100 kilometer per hours speed and that he do not know how much distance to be covered to attain 80 kilometers speed.
39. Considering the FIR i.e. Ex.P7, wherein it is not whispered that the accused drove the vehicle in rash and negligent manner. Pws. 1 and 2 stated that the accused drove the vehicle in rash and negligent manner but they are not the eye witnesses to the accident. Pw3 stated that he has seen the accused driving the vehicle in rash and negligent manner. But in his cross examination he stated that the accused is not present at the time of the incident and that the accused house is not there in that street. So, the contradictory version of Pw3 does not support the case of the prosecution that the accused has driven the vehicle and also that the 20 Of 24 CC 216 of 2016 accused has done the accident in rash and negligent manner. Further, It is established that the width of the road is 20 feet.
40. In Ranjit Nath-Vs- State of Assam reported in 1977(3)
G.L.T.126, Honble Gauhati High Court observed as follows:- “In older to sustain conviction u/s 304 (A) IPC and to impose criminal liability under section 304 A Indian Penal Code, it is necessary that the death should have been the direct result of a rash or negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence.
It must be the causa causans it is not enough that it may have been the cause sine qua non. The 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. Even if the accident took place in the twinkling of an eye, it is not difficult for eye-witness to notice a car overtaking other vehicles and going to the wrong side of the road and hitting a vehicle traveling on that side of the road. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution, must be culpable or gross and not the negligence merely based upon an error of judgment. Moreover, to disprove the fact that it was not accused who drove the motor-cycle the onus lies upon him as because the prosecution impeccably proved that it was he who drove the vehicle that caused the accident.
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41.In older to sustain conviction u/Sec. 304 (A) IPC and to impose criminal liability under section 304- A Indian Penal Code, it is necessary that the death should have been the direct result of a rash or negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence.
So in the instant case the vital witness is Pw3 to prove that the accused has driven the vehicle in rash and negligent manner but the prosecution failed to establish the same through PW3.
42. The prosecution failed to establish the accusation against the accused for the offence alleged and on other hand it is elicited during the cross examination that the place of incident is not playing area and even the child - deceased is one year odd old.
PW1 denied that his son was aged around one year and one month and he was not able to walk properly and he stated that his son started walking by 7 months old. Whereas PW2 stated that her son date of birth of my son is 25-09-2014. Pw7 admitted that there is over writing in date column of Ex.P1. The age of the child is overwritten. So the date of the child by the time of the accident is one year, one month and three days. As seen from the age of the child, it cannot be said that child cannot walk properly without some ones assistance.
Further, Pw1 stated that there are two steps along with slope is situated in front of their gate where they resided earlier though he 22 Of 24 CC 216 of 2016 denied that his son accidentally fell down from the stairs and sustained grievous head injury by falling on the ramp.
So, it is established that there is no footpath at the place of accident and there is stairs and slope in front of the house and admitted that the place of accident is not playing area and width of the road is 20 feet road. When it is not playing area, the deceased child playing on the road is contributory negligence for the occurrence of the accident.
43. From the above threadbare discussion, I opine that the prosecution utterly failed to prove and establish
1. That the accused is owner of the vehicle
2. That the accused has caused the accident
3. That the accused has driven the vehicle in rash and negligent manner
4. That PW3 has witnessed the accident
On the other hand, the contributory negligence stands proved.
44. In view of the above, I opine that the prosecution utterly failed to prove and establish the offence under Section 304-A IPC and Sec.
130(2) of Motor vehicle Act, accordingly he is entitled for acquittal. The point is determined accordingly.
45. For the aforesaid reasons, I pass the following:
In the result, I find the accused not guilty of the offence punishable
U/s. 304-A IPC and Sec. 130(2) of Motor vehicle Act and thus I acquit 23 Of 24 CC 216 of 2016 him U/s 255(1) Cr. P.C. The bail bonds of the accused and that of his sureties if any shall stands cancel after expiry of appeal time.
Directly typed to my dictation by the stenographer Gr-II of this court, corrected and pronounced by me in the open court, on this the 9th day of November 2023.
Sd/-
CHIEF METROPOLITAN MAGISTRATE
HYDERABAD
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PROSECUTION FOR DEFENCE -NIL-
1. PW.1: Sri Syed Musthafa Iqad, complainant/father of deceased
2. PW.2: Smt Naseem Sulthana, witness/mother of deceased
3. PW.3: Sri Abdul Rehman Ghori, Eye witness/neighbour of deceased
4. PW.4: Sri Mohd Ahmed Hussain, Panch for scene of observation panchanama, rough sketch cum seizure
5. PW.5: Sri Y Bin Ahmed Basravi, Panch for inquest panchanama
6. PW.6: Sri K Kiran Kumar, Motor Vehicle Inspector
7. PW.7: Sri K Laxmaiah, Investigating Officer
EXHIBITS MARKED
FOR PROSECUTION
1. Ex.P1 : Report
2. Ex.P2 : Scene of offence Panchanama
3. Ex.P3 : Rough Sketch
4. Ex.P4 : Inquest panchanama
5. Ex.P5: MVI Report
6. Ex.P6 : PME Report
7. Ex.P7: FIR
FOR DEFENCE
1. Ex.D1 : Portion of 161 Cr.P.C Statement of PW.3 24 Of 24 CC 216 of 2016
MATERIAL OBJECTS MARKED
FOR PROSECUTION FOR DEFENCE
-NIL--NIL-
Sd/-
CHIEF METROPOLITAN MAGISTRATE
HYDERABAD