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IN THE COURT OF THE ADDL. JUNIOR CIVIL JUDGE – CUM - ADDL.JUDL.
MAGISTRATE OF FIRST CLASS AT MADHIRA
Dated this the 09th day of September, 2022
Present: Sri D.DHEERAJ KUMAR, Prl. Junior Civil Judge – Cum -
Judicial Magistrate of First Class
Madhira. FAC. Addl. Junior Civil Judge – Cum - Addl. Judicial Magistrate of First Class Madhira.
CC.No.194/2017 (Old CC.No.467/2015)
Between: State through represented by Sub-Inspector of Police, PS, Bonakal
….....Complainant
AND Thupakula Balakrishna, S/o. Narayana, Age: 26 years, Occ: Coolie, R/o. Peddabeeravelli village, Bonakal mandal, Khammam district.
......Accused
This case coming before me for final hearing on 07.09.2022 in the presence of Assistant Public Prosecutor for the state and of Sri D.Jagan Mohan Rao and Sri M.Satesh, Advocate for the accused, upon perusing the material papers on record, upon hearing the arguments of both sides and having stood over for consideration till this day this court delivered the following:
J U D G M E N T
1. The Sub-Inspector of police, P.S. Bonakal filed the charge sheet against the accused for the punishable offence U/s.304 (A) of Indian Penal Code 1860 (herein after referred as IPC in brevity) and Sec.181 of MV Act in Cr.No.133/2015 of Bonakal Police
Station.
2. The brief facts of the prosecution case as set out in the charge sheet are that on 22.08.2015 at 1100 hours the complainant/Lw.1/D.Prudvi Raj, came to police station and lodged a telugu written report stating that on 20.08.2015 at morning hours, his brother-in- law by name Modugu Chittibabu was proceeding to Ramakrishnapuram village on his motor cycle bearing No.AP 20 AU 4944 to attend his friend’s marriage and returned to
Narayanapuram village and reached near down flyover bridge, Bonakal at about 8-00 p.m, 2 with their relative by name Vutukuri Suresh, meantime one person drove the motor cycle bearing No.TS 04 ED 3863 in a rash and negligent manner with high speed in an opposite direction and dashed his brother-in-law motor cycle, due to which his brother-in-law was fell down on the road and received head injury and Vutukuru Suresh was informed to him through phone, immediately he along with his relatives rushed to accident place and shifted his brother-in-law to Khammam through 108 ambulance and admitted in Mamata
Hospital, Khammam for treatment, while undergoing treatment his brother-in-law succumbed to the injuries on 22.08.2015 at about 9-00 a.m. Finally he requested to cause enquiry and do justice. Basing on the report Lw.15/SI of police registered a case in
Cr.No.133/2015 U/s.304(A) of IPC, issued FIR and submitted to all the concerned and took up the investigation. After completion of investigation he laid charge sheet against the accused person before the Court U/s.304-A of IPC, and Sec. 181 of MV Act.
3.This case was taken on file by taking cognizance for offence publishable U/s.304(A) of IPC, Sec. 181 of MV Act on appearance of accused, the case copies were furnished to him as contemplated U/s. 207 of Criminal Procedure Code 1973(herein after referred as
Cr.P.C in brevity).
4.The accused was examined under section 251 of Cr.P.C for the offence punishable
U/s.304(A) of IPC and Sec. 181 of MV Act read over and explained to him in telugu for substance of the offence for which, he denied the offence pleaded not guilty.
5.To prove its case, the prosecution has examined Pw.1 to Pw.12 and marked Ex.P1 to Ex.P54. The learned APP has given up the evidence of Lw.5 and Lw.11.
6.After completion of prosecution side evidence, the accused was examined U/s.313 of Cr.P.C, by explaining the incriminating evidence found against him, for which he denied the same and reported no defence evidence.
7. Heard both sides.
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8.Now the point for determination is that:- “ Whether the prosecution has proved the guilt of the accused for the offence
u/s 304-A of IPC and Sec. 181 of MV Act beyond all reasonable doubts or
not?.”
POINT: To bring home the guilt of the accused for the offence u/s.304(A) of IPC and
Sec. 181 of MV Act the prosecution shall establish that the deceased Modugu
Chittibabu died in a road traffic accident on 20.08.2015 at about 8-00 p.m, near down flyover bridge, Bonakal and the accused is the driver of the motor cycle bearing
No.TS 04 ED 3863 at the time of accident. The said accident was caused due to rash
or negligent driving of the motor cycle bearing NO.TS 04 ED 3863 driven by
accused.
9. The case of the prosecution and the gist of evidence which was adduced to bring home a guilt of accused and which need detailed examination. The evidence available on record is the evidence of PW-1 to PW-12. To establish the said fact, the prosecution has placed the ocular evidence of PW-1 to PW-12 and marked Ex.P1 to Ex.P4. Now let us examine whether the prosecution could be able to prove the case with the aid of PW-1 to
PW-12.
10.Scanning the evidence on record as it transpires that the evidence of PW-1 to PW-12 and exhibit marked Ex.P1 to Ex.P4. PW-2 is complainant deposed that in the year 2015 his brother-in-law met with an accident while returning from Ramakrishnapuram village to Narayanapuram village after attending marriage and after crossing Bonakal over bridge and Ravinuthala village his brother-in-law met with an accident. He further deposed that as his brother-in-law was hit by two wheeler from the opposite direction, at that time
Lw.3 who was also pillion rider with his brother-in-law informed to him about the accident after it took place. He also deposed that his brother-in-law got injured at the back side of his head and he reached to the crime spot and saw two wheelers lying at the crime spot 4 and informed that his injured brother-in-law was carried in an ambulance to the Khammam hospital for treatment. Thereafter he gave report to the police. Ex.P2 is report. During the cross examination of Pw.2, he stated that he received phone call from Lw.3/Pw.5 at about 7-30 to 8-00 p.m, about the accident. He admitted that he did not depose in his 161 Cr.P.C statement to the police that Lw.3 was also pillion rider along with deceased. He admitted that there were no eye witness and he does not know how actually the incident took place.
He further admitted in his chief examination that I does not know the crime vehicle bearing number. He denied several suggestions put forth by the defence counsel with regard to the incident. The evidence of Pw.2 clearly shows that he was not eye witness to the incident as such his evidence is not sufficient to prove the guilt of the accused.
11.As it could be seen from the evidence of Pw.1 who is Motor Vehicle Inspector in this case stated that he has received requisition from SI of police, PS Bonakal on 02.09.2015 at 0800 hours, basing on it he inspected the crime vehicle bearing No.TS 04
ED 3863 and the vehicle was damaged at head light broken. He further stated that to the best knowledge of MVI it is reported that the accident not occurred due to any mechanically defects of the vehicle. Ex.P1 is MVI report. During his cross examination he stated that he has inspected the crime vehicle at police station and the vehicle was in running condition and the vehicle was damaged by only getting it head light broken.
12.As seen from the evidence of Pw.3 who is circumstantial witness to the incident deposed that at about 06 years back accident was took place in between
Ravinuthala and Bonakal village on collusion of two bikes in opposite direction. She deposed that one Suresh/Lw.3 informed to her about the incident and then went to
Mamata Hospital, Khammam and saw the deceased. She further deposed that her husband received injuries at the back of the head, by the time she reached to the crime spot her husband was lying on the ground. She also deposed that her husband using Hero 5
Splender bike. During the cross examination of Pw.3, she admitted that her husband was not in a conscious state to narrate what has happened. Stated that at first she went to the crime spot, later to the hospital. She admitted that she went to the crime spot after an hours of Pw.2 visit to the crime spot and she did not accompany with her injured husband in the ambulance. She denied the suggestions put forth by the defence counsel with regard to the incident. The evidence of Pw.3 clearly shows that she was not eye witness to the incident and her evidence is not sufficient to prove the guilt of accused.
13. As seen from the evidence of Pw.4 who is circumstantial witness to the incident deposed that at about 06 years back her son/deceased went to attend the marriage and he started alone from home on motor bike and she was told that her son was joined by one of his friend and her son reached Bonakal and met with an accident by bike which was proceeding in an opposite direction and she told about the accident by one Yelamanda and was carried to Mamata hospital, Khammam, where her son was declared dead. During the cross examination of Pw.4 she admitted that she does not know Lw.3/Pw.5. The evidence of Pw.4 clearly shows that she was not eye witness to the accident and her evidence of not sufficient to prove the guilt of accused.
14.As it could be seen from the evidence of Pw.5 who is eye witness to the incident deposed that that on 20.08.2015 he and deceased were returning from marriage and he was a pillion rider and met with an accident near Ravinuthala village bridge, where hit by HM Deluxe bike. He deposed that he knows the accused and also identified the accused who is present before the court. He also deposed that he received the injuries on his head and on his chest and he received on his second finger. He further deposed that the people gathered there and called ambulance and shifted him to government hospital,
Khammam and then shifted to Mamata hospital, Khammam for better treatment and the deceased was declared dead after two days of treatment. During the cross examination of 6
Pw.5, stated that the deceased is his brother-in-law by relation. He informed to the doctors about the reason for his injuries. He stated that he came to know about the name of accused from the people who gathered at the spot. He denied the several suggestion put forth by the defence counsel with regard to the case. The evidence of Pw.5 clearly shows that he is the pillion rider of the motor cycle and at the time of incident the accused drove the motor cycle in a rash or negligent manner and caused the accident or not.
15.As seen from the evidence of Pw.6 who is circumstantial witness to the incident, deposed that the deceased is his son of relation and he knows Pw.2 to Pw.5 and they were returning from a marriage, he and deceased were traveling on the same bike till
Bonakal, as he has parked his bike at Bonakal and got down at Bonakal and then some other person was his pillion rider. He deposed that he followed their bike after a gap of 5 minutes, then accident took place near Bonakal-Ravinuthala village bridge down and this accident took place between 8-00 p.m, to 9-00 p.m, and then he called ambulance after the accident and carried the injured persons to Khammam government hospital. He further deposed that he came to know that one Peddabeeravalli villager committed the accident.
He further deposed that the deceased died after 2 days of treatment and the deceased received injuries as back of his head. During the cross examination of Pw.6, he stated that by that time he reached to the crime spot police was present and gathered information and police was not examined at the crime spot. He stated that the accused was not present at the spot by the time he reached to the spot. He denied several suggestions put forth by the defence counsel with regard to the case. The evidence of Pw.6 clearly shows that he was not eye witness to the incident and his evidence is not sufficient to the case of prosecution.
16.As seen from the evidence of Pw.7 who is panch witness for inquest deposed that the police conducted inquest panchanama at government hospital, Khammam and he was the deceased dead body at hospital. He deposed that the deceased is a male person 7 by name Chitt Babu and deceased received injuries at the back of his head. He further deposed that the inquest panchanama was conducted between 11-00 a.m, to 12-00 noon and thereafter he signed on it. Ex.P3 is inquest. During the cross examination he stated that he does not remember whether the police have read over the contents of Ex.P3. He stated that the deceased is his distant relative and son by relation. He admitted that he does not see the injuries on the dead body as it was not visible patently, but he was the deceased. Police obtained his signature at Bonakal and Ravinuthala villages.
17.As it could be seen from the evidence of Pw.8 who is photographer in this case deposed that in the year 2015 Police, Bonakal called him to take photographs of dead boy of M.Chittibabu at Government hospital, Khammam and took the 04 photos. He further deposed that he was informed about the accident that the deceased and Pw.5 met with an accident while returning from marriage and traveling one motor bike. During the cross examination he stated that he and deceased belongs to same village, same caste and distant relative. He stated that police called him to take photographs, he does not given any receipt (bill) to the police. He denied the suggestions put forth by the defence counsel with regard to the case.
18.As seen from the evidence of Pw.9 who is another panch witness for inquest deposed that in the year 2015 Police conducted inquest panchanama in his presence at government hospital, Khammam. He further deposed that he saw the dead body aged about 25 years and male person and police read over the contents to him later he signed on it. During the cross examination he stated that the deceased received injuries at the back of his head, and deceased is his village. He denied suggestions put forth by the defence counsel with regard to the case.
19.As it could be seen from the evidence of Pw.10 who is panch witness for
CDF deposed that the police conducted CDF in his presence and recorded the boundaries 8 and police read over the contents to him later he signed on it and he identified his signature. Ex.P4 is CDF. During the cross-examination he stated that he belongs to
Nagilegonda village of Chintakani mandal and the distance between his village and crime spot is about 10 kms and there are about 08 villages between his village and crime spot.
He admitted that the police obtained his signature at police station. He denied the suggestions put forth by the defence counsel with regard to the case.
20.The prosecution choose to examine the Pw.11 who is first investigating officer in this case stated that he conducted CDF and inquest panchanama in this case and he recorded the statements of Pw.2,Pw.3 and Pw.5 at government hospital,
Khammam dn recorded the statements of Pw.4, Pw.6 and Lw.5 at scene of offence and later he obtained photographs from Pw.8. he further stated that Lw.15/Pw.12 given requisition to Pw.1 and after conducting CDF and inquest panchanama he handed over the file to Lw.15/Pw.12 for further investigation. During the cross-examination he stated that on 22.08.2015 at 11-20 a.m, he went to the scene of offence. He admitted that there were shop present near the scene of offence. He admitted tha both the motor cycles were damaged in the accident. He stated that accused and deceased were carried to hospital
before he reached to the spot. He does not know whether the accused received injuries or
not and he does not know whether MVI inspected two vehicles or one vehicle. He stated that he took the both vehicle from the spot to the police station. He admitted that he cannot say at whose fault the accident took place. He stated that he does not know whether the panch witness are relatives of deceased or not. He admitted that the witnesses were the relatives of deceased. He further admitted that he does not cite any person from
Ravinuthala village as witnesses as accident took place at Ravinuthala village. He admitted that there is subabul dumping yard near the crime spot. He also admitted that the place of accident is place which has frequent lorries passing by. He admitted that Pw.5 is 9 from Ammapeta village which is 25 kms away from the crime spot and he stated that the deceased and Pw.5 are relatives by traveling on the same vehicle at the time of incident.
He admitted that Pw.5 did not sustained major injuries. He denied several suggestions put forth by the defence counsel with regard to the case.
21.The prosecution choose to examine the Pw.12 who is investigating officer in this case stated that he received CD file from Pw.11 on 31.08.2015 and he called the accused person and issued Sec.41 notice and released the accused on bail and on verification he found that the accused did not have driving licence hence added Sec.181 of
MV Act and verified that the investigation was on true lines and thereafter he filed charge sheet on 22.09.2015. During his cross examination he admitted that he did not record statement of any witnesses and he issued station bail to the accused. He admitted that there were no injuries are the accused person at the time of arrest. He denied the suggestions put forth by the defence counsel with regard to the case.
22.After going through the testimony of Pw.1 to Pw.12 this court feels that it is necessary to go through the ingredients of the offence U/s.304-A of IPC.
a) There must be death of the person in question;
b) The accused must have caused such death; and
c) That such act of the accused was rash or negligent and that it did not amount to culpable homicide.
23. The crux of the prosecution case as per the version of the PW1 to PW.12in the year 2015 an accident took place at Bonakal over bridge and Ravinuthala village, the driver of the motor cycle drove in a rash or negligently and caused death of M.Chittibabu, and caused injuries to Pw.5, as a result the deceased who is the brother-in-law of Pw.1 died at hospital.
24. To prove the alleged accident the prosecution examined PW.5 who is eye witness to the incident and he deposed in his chief and cross examination he did not disclose 10 accused drove the motor cycle in a rash or negligent manner and hit his motor cycle and caused the accident. Further he admitted that the deceased is his relative. There is no corroboration in respect of the manner of the driving at the time of accident. It is no doubt his evidence takes away case of the prosecution without stating anything in connection with this case. Undoubtedly, there is a lacuna in the case of prosecution to establish the case.
25. To prove the conducting panchanama at the scene of offence and also inquest panchanama over the dead body, the prosecution examined the Pw.7, Pw.9 and Pw.10 and they supported the case of the prosecution by stating that those panchanamas were conducted in their presence by the police, thereafter police obtained signatures, Ex.P3 is the inquest, Ex.P4 is CDF are marked on behalf of prosecution. Nothing was elicited by the defence counsel to disbelieve the version of Pw.7,Pw.9 and Pw.10 about the conducting the scene of offence panchanama at the spot in connection with the accident and also inquest panchanama over the deceased dead body by name M.Chittibabu. The prosecution further examined the Pw.8 who is photographer stated in his chief examination that he took the photos of the deceased at the request of police, Bonakal. During his cross examination he stated that he did not give any receipt to the police.
26. The prosecution did not choose to examine the Lw.12 who issued the PME report.
Further the prosecution choose to examine the MVI/Pw.1 in this case that the accident not occurred due to any mechanically defects of the vehicle. Ex.P1 is MVI report.
27. As it could be seen from the evidence of Pw.11 and Pw.12 who are investigating officers reiterated the contents of charge sheet and received Ex.P2 from Pw.1 and registered the crime.
28. The defence counsel argued that the prosecution failed to prove the rash or negligent act of the accused in the said accident. As per the version of the Pw.1 to Pw.12 11 deposed that the accused drove the motor cycle in a speed manner would not amounts either rash or negligent act of the case. Further submitted that the prosecution has to prove that the accused drove the vehicle without taking precautions by negligently drove the vehicle and proceeded rashly, as a result the accident occurred. Mere stating the accused drove the vehicle in a speed manner does not indicate that he drove the vehicle rash or negligently. There is a chance of causing accident even vehicle proceeds in a slow manner and some times it also happen drove the vehicle in a speed manner may not be results into the accident and depends upon the vehicle and the driver of the vehicle.
29. Further, the accused counsel strongly contended that the prosecution failed to examine the medical officer in this case. More so the prosecution place the medical certificate of deceased person from the government hospital. In addition to that the prosecution did not choose to file any medical certificate to the Pw.5 who received injuries.
Therefore, it is difficult to know the condition of the crime vehicle whether it has any mechanical defects at the time of accident or not and also argued that non examination of medical officer is fatal to the case of prosecution.
30. It is pertinent to note that the death of the deceased M.Chittbabu died is not in dispute. The death is proved by the prosecution and other ocular evidence of PW2.
However, such death of deceased must be caused by a rash or negligent of the accused person has to be proved by the prosecution that he drove the motor cycle in a rash or negligent manner which resulted in to death of the deceased.
31. The crux of the prosecution case is that in the year 2015 his brother-in-law proceeding on his bike when his brother-in-law reached near Bonakal over bridge met with an accident. As a result his brother-in-law succumbed to injuries and died in the accident and Pw.5 received injuries to that accident. Hence, the present complaint was lodged against the accused. To prove the alleged offence against the accused, PW2 supported 12 only to an extent of death of the accident and he did not not supported the other version of the prosecution.
32. The learned APP strongly argued that the Pw.5 who is eye witness in the incident deposed that he did not state about the place and time, manner in which the accused drove the vehicle as speed manner is to show the rash or negligence of the accused.
Hence, prayed the court to convict the accused for the charges levelled against him.
33. The prosecution ought to have examine the Motor vehicle inspector and also other material witnesses on record to establish the rash or negligent act of the accused in corroboration with Ex.P2. It is not doubt the offence of nature like the accident is depends upon the manner in which the person drove the vehicle on the road and there is a every chance of causing accidents at the fault of deceased person in some instances. Where the contributory negligence is involved and imposed penal liability on the part of the driver of one vehicle is not compound and not justified unless the prosecution placed the sufficient testimony to establish the alleged rash or negligent act of the accused. Where it comes it case on hand the prosecution did not made any effort to examine the witnesses for the reasons best known to them.
34. On careful perusal of the entire evidence on record it transpires that the prosecution establish the death of the deceased and also identified the driver of the said motor cycle.
but there is no cogent and reliable testimony to determine the rash or negligence of the accused. Moreover, there is no evidence in respect of the manner in which the accused drove the vehicle. Further the prosecution failed to examine the Motor Vehicle inspector who inspected the crime vehicle to know about any mechanical defects and also not examined the medical officer is the fatal to case of the prosecution.
35. The Hon'ble Apex Court held that “ it is wrong proposition that for any motor 13 accident negligence of the driver should be presumed” held in the case of Mohammed
Aynuddin Vs State 2000(7) SCC 72(Para 7). there must be a direct nexus between the death of the person and rash or negligence act of the accused. It must be proved by the prosecution beyond all reasonable doubts. Thus, where death is not direct result of rash or negligent act on the part of the accused and was not a proximate and sufficient cause without the intervention of the another act of negligence, the accused must be acquitted of the charge u/s 304-A IPC. Where it comes to the case on hand the prosecution failed to prove the rash or negligence of the accused as already discussed above.
36. The other principle observed by the Hon'ble Apex court that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence.
Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in the IPC that the vehicle is driven in a manner dangerous to public life.
37. It is needless to emphasize that however the suspicion is grave and strong that cannot takes place of proof. On the other hand, whenever there is a doubt and suspicion in the prosecution evidence, such benefit has to be given to the accused. In view of the above said discussion, it is inevitable to hold that the prosecution could not establish the offence punishable under section 304-A of I.P.C and Sec.181 of MV Act beyond all reasonable doubt. Therefore, the accused is entitled for acquittal.
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38. In the result, the accused is not found guilty for the offence U/s.304-A of IPC and
Ses.181 of MV Act, as such he is acquitted of the same U/s.255(1) of Cr.P.C. The accused is set at liberty in this case. The bail bonds of accused shall be in force for a period of six months as per Sec.437-A of Cr.P.C.
Typed to dictation to Stenographer on computer, corrected and pronounced by me in the open court on this the 09th day of September, 2022.
FAC.Addl. Judl. Magistrate of First Class, Madhira.
-APPENDIX OF EVIDENCE-
WITNESSES EXAMINED
For Prosecution: For Defence: Nil. PW.1: M.Gouse Pasha, MVI PW.2: D.Prudvi Raj PW.3: M.Jayamma PW.4: M.Vimala PW.5: V.Suresh PW.6: K.Srinivasa Rao PW.7: K.Srinivasa Rao PW.8: K.Thirupati Rao PW.9: V.Arjun PW.10: Ch.Prabhakar PW.11: D.Lachu, Investigating officer, PW.12: K.Kumaraswamy, Investigating Officer.
EXHIBITS MARKED FOR
Prosecution: Defence: Nil. Ex.P1: is MVIreport Ex.P2: is report. Ex.P3: is inquest panchanama Ex.P4: is CDF.
Material Objects: Nil.
FAC.Addl. Judl. Magistrate of First Class, Madhira.