1 CC.No.115 OF 2016 Page 1 of 18
FAIR COPY
IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS
AT BODHAN
PRESENT:- SRI GOUSE PASHA MD,
JUDICIAL FIRST CLASS MAGISTRATE,
BODHAN.
DATED, THIS THE 16 th DAY OF AUGUST, 2022
C.C.No.115 OF 2016
BETWEEN:-
The State of Telangana Rep. by P.S.Bodhan Town. …COMPLAINANT
AND
Mohd. Rafiuddin, S/o.Wahiduddin, aged 40 years, Muslim by Caste, Occ: Driver of Xylo Vehicle bearing No.MH12GZ-9200, R/o.H.No.8-14/4, Renjal Village and Mandal, Nizamabad District.
...ACCUSED
This case coming before me on 11-08-2022 for final hearing in the presence of the learned A.P.P.O for the complainant and of Sri Wajeed
Hussain, the learned counsel for the accused and the matter having stood over till this day for consideration, this Court delivered the following:-
:: J U D G M E N T ::
1.The then Sub Inspector of Police, Bodhan Town P.S. filed the charge sheet in Crime No.70 of 2016 for the offence punishable U/s.304-A IPC and
Section 158 R/w 177 of Motor Vehicles Act, Sec.146 R/w.196 M.V.Act and
Sec.3 R/w 181 of M.V. Act against the accused.
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2.The brief allegations in the charge sheet are as follows:-
That on 27.02.2016 at 10.00 A.M. the defacto complainant/Shaik Feroz lodged police report stating that on 26.02.2016 at 7.30 P.M. his father namely
Chand Pasha while coming from Officers Club, Bodhan towards his house on his bicycle and when he reached in front of TTD Kalyanamandapam met with an accident with an Xylo vehicle bearing No.MH.12.GZ.200 and sustained bleeding injuries on head and other parts of his body. On receiving the said information through Lw.6/Devender, the complainant and others rushed to the spot and found it to be correct. On enquiry, they came to know the name of the accused/driver. Meanwhile, the father of the complainant was shifted to
Bodhan Hospital and from there to Nizamabad and admitted in Bombay
Nursing Home for better treatment. On the same day at about 11.30 pm while he is under going treatment, he took his last breath.
3.Basing on the above report filed by the LW.1 / Shaik Feroz, the LW.13
Ch.Venkanna, the then Inspector of Police, Bodhan registered this case and issued FIR and entrusted the investigation to LW.14 M.Prabhakar, the then S.I.
of Police, Bodhan. During course of investigation, the LW.14 examined and recorded the statement of Lws.1 to 6. Thereafter, the LW.14 held inquest over the dead body of deceased in the presence of the Lws.7 and 8. LW.11 Medical
Officer conducted autopsy over the dead body of deceased and issued PME report. Thereafter, the LW.14 visited the scene of offence and conducted 3 CC.No.115 OF 2016 Page 3 of 18 scene of offence panchanama in the presence of same mediators Lws.9 and 10 and drawn rough sketch map. On 09.03.2016 at 1.00 P.M. the accused surrendered himself before LW.15 and confessed to have committed the offence and failed to produce relevant documents of crime vehicle and his driving license. LW.12 Motor Vehicles Inspector, Bodhan inspected the crime vehicle and opined that the accident occurred not due to any mechanical defects of the vehicle. After completion of investigation, the LW.14
M.Prabhakar, the then S.I. of Police, Bodhan filed the charge-sheet against the accused.
4.This court took cognizance for the offence U/s.304-A IPC and Section 158 R/w 177 of Motor Vehicles Act, Sec.146 R/w 196 M.V.Act against the accused on 16.05.2016. The copies of documents were furnished to the accused as required U/Sec.207 of Cr.P.C. and when he was examined
U/Sec.251 of Cr.P.C. for which the accused pleaded not guilty and claimed to be tried for the offences U/s.304-A of IPC and Section 158 R/w 177 of Motor
Vehicles Act, Sec.146 R/w. 196 M.V.Act. Hence the substance of accusations for the offences U/s.304-A of IPC and Section 158 R/w 177 of Motor Vehicles
Act, Sec.146 R/w. 196 M.V.Act were read over and explained to the accused in vernacular language.
5.In order to bring home the guilt of the accused, the prosecution examined the PWs.1 to 9 and the Ex.P-1 to P-8 are marked. No witnesses are 4 CC.No.115 OF 2016 Page 4 of 18 examined and no documents are marked on behalf of the accused. The learned APPO has given up the Lws.9, 11 to 13 prosecution evidence and closed the evidence of Lw.2 on report filed by the police.
6.After completion of the prosecution evidence, the accused was examined U/Sec.313 of Cr.P.C. with reference to the prosecution evidence appeared against him, for which the accused denied the incriminating evidence of the prosecution and reported no defence evidence.
7.Heard, the arguments from both sides and perused the case record.
8.Now the points for determination are:-
(i) Whether the prosecution proved its case beyond reasonable doubts for the offences U/s.304-A of IPC against the accused ?
(ii) Whether the prosecution proved its case beyond reasonable doubts for the offences U/sec.158 R/w 177 of Motor Vehicles Act, Sec.146 R/w. 196 of Motor Vehicles Act against the accused and Sec.3 R/w 181 of M.V. Act?
9. POINT No.(i):- In order to prove its case, the prosecution examined the
Pws.1/Shaik Feroz who is defacto complainant and elder son of deceased,
Pw.2 is the witness and second son of deceased, PW.3 to Pw.5 are the eye witnesses, Pw.6 is the panch for scene of crime, Pw.7 and Pw.8 are the panch for inquest panchanama and Pw.9 is the Investigation Officer in this case.
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10. In order to prove the case of the prosecution for the offence U/s.304-
A of IPC, the prosecution must establish the ingredients, that (1) the deceased must be killed in the road accident occurred on 26-02-2016 at TTD Kalyana
Mandapam, Bodhan, (2) rash or negligent driving of the accused must be established by the prosecution while driving the Xylo Vehicle and the accused caused the rash act and the death of the deceased, (3) the identity of the accused must be established by the prosecution beyond reasonable doubts.
Further, in order to prove the offences U/sec.146 R/w 196 and 181 of Motor
Vehicles Act, the prosecution must establish the ingredients that the accused must drove the crime vehicle without having valid license, registration certificate and insurance at the relevant time of the accident.
11. In order to prove the death of the deceased in the road accident, the prosecution relied upon the oral evidence of the Pws.1 to 4, Pw.6 and the investigation officer PW.9. According to the PW.1 who is the defacto complainant and elder son of the deceased Chand Pasha has deposed that at about 4 years ago while he was present at Basara village meanwhile he received a phone call from Pw.3 stating that his father met with an accident with one Xylo car. Immediately his younger brother went to the spot and shifted his father to the Govt. Hospital, Bodhan from there to Bombay Nursing home at Nizamabad for better treatment and he was sucumbed to injuries while he was under going treatment. Thereafter he wentto police station and 6 CC.No.115 OF 2016 Page 6 of 18 lodged a complamnnt before police. During his cross examination he deposed that he studies uoto 5th class and he do not know reading and writing telugu language. He categorically admitted that one police personal scribeed the
Ex.P1. He deposed that police did not record a statement from time to time.
He denied to the suggest that no accident took place with Xylo car and deposing false in order to claim compensation.
12.During the evidence of Pw.2 who is the son of deceased and younger brother of Pw.1 deposed that at about 10 years back an accident took place of his father while he was coming from Lions club towards Bodhan. He deposed that one Xylo Car came behind his father/deceased and dashed against his father. Due to which his father fell down on road and sustained injuries on his backside of head and bleeding through nose, ears and mouth and severe injuries on both knees. Immediately his father was shifted to Govt.
Hospital, Bodhan for treatment and for the better treatment he shifted to
Nizamabad Govt. Hospital and while on the way to Nizamabad hospital his father on the way succumbed to death. He came to know about the accident of his father through elder brother. He deposed that police have examined him and recorded his statement. During course of cross examination of Pw.2 he deposed that he was examined on the second day of alleged incident. He deposed that he was not present at the time of incident but he came to know through to his elder brother about the accident of his father. He deposed that 7 CC.No.115 OF 2016 Page 7 of 18 his elder brother has filed MVOP before the Hon’ble VII ADJ court, Bodhan for claiming compensation on account of death of their father. He denied to the suggestion that in order to claim compensation he has implicated the crime vehicle in this case falsely and deposing false in support of police, in fact no such accident took place and as his father used to centring work along with him and during such works roof fell on head of his father due to which his father succumbed to death.
13.Pw.3 deposed that he know Shaik Chand / deceased and Pw.1 but he do not know Pw.2. He deposed that himself and the deceased used to work as attenders in officers club, Bodhan. He deposed that on 26.02.2016 after finishing of his duty himself and deceased / Shaik Chand were proceeding towards Ambedkar Chowrasta and while they were taking turn one vehicle came at high speed and while the deceased / Shaik Chand was crossing at
Vasu school the said vehicle dashed against Chand Pasha. He deposed that he has witnessed the accident and the deceased sustained injuries on his head, legs and severe bleeding from his mouth. He deposed that immediately he made a call to the son of deceased and informed about the accident.
Thereafter they rushed to Govt. Hospital, Bodhan and advise of doctors shifted the deceased to Govt Hospital, Nizamabad for better treatment. He deposed that Police examined and recorded his statement. The learned APPO declared the witness as hostile and sought permission for cross examination 8 CC.No.115 OF 2016 Page 8 of 18 and during cross examination by Learned APPO the Pw.3 deposed that registration number of crime vehicle is 9200 and it is a Xylo Car. He admitted that he stated before police the accident was occurred due to rash and negligent act and the name of driver as Rafi and stated that due to the dash of Rafi by the vehicle the deceased succumbed to death. During cross of PW.3 he deposed that he cannot say who are the President and Secretary of
Officer’s Club, Bodhan and thereafter denied the suggestions putforth to him.
14.Pw.4 deposed that Previously he used to work at officer’s Club, Bodhan as Attender. He do not remember the date, but on one day at about 7.30 PM after completion of work, he along with Chand Pasha and Vijay were proceeding to their respective houses. Chand Pasha was proceeding ahead him. When said Chand Pasha crossing the turning near Vasu College, one car came in speed manner and dashed against the said Chand Pasha. Due to which, the Chand Pasha fell down on the ground and sustained severe injuries and blood was oozing from his ear, nose and mouth. Immediately, they shifted Chand Pasha to Govt. Area Hospital, Bodhan and the doctors advised to shift Chand Pasha to Nizamabad for better treatment. He informed about the accident of Chand Pasha to his family members before proceeding to
Nizamabad. The family members of Chand Pasha arrived to Govt. Hospital,
Bodhan and shifted him to Nizamabad Govt. Hospital for medical treatment.
Thereafter, He left to his home. On the same day of accident at 11.30 pm. he 9 CC.No.115 OF 2016 Page 9 of 18 received phone call stating that the Chand Pasha died. Later, on the next day morning police examined him and recorded his statement. He can not say the registration bearing number of crime vehicle. He can not identify the driver of the said crime vehicle, even if shown to him. During cross he deposed that he has informed about the accident of Chand Pasha after shifting the injured to the Govt. Area Hospital, Bodhan and he further stated that he stated before police whatever he has witnesses.
15.Pw.5 deposed that On one day while he was proceeding from Rudrur towards Bodhan and when reached near Venkateshwara Theatre, Bodhan he observed that one white colour vehicle was stationed. He also observed that crowd was gathered there and on enquiry with them he came to know tht an accident took place. He can not say the brand and make of vehicle, but he can say the colour of vehicle which is white. During cross of PW.5 by learned
APPO he has declared to be hostile. He denied to suggestion that he has stated before the police that the name of accused as Rafi and stated that he cannot say the exact make and brand of vehicle including registration number as it was occurred in dark night and the accident was occurred in the night hours. During cross examination by counsel for accused he admitted that he does not know any facts of the case. He further deposed that the police did not examine him and not recorded his statement.
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16.Pw.6 deposed that He know Lw.9 V.Sridhar Reddy. On 22.02.2016 police called him and Lw.9 V.Sridhar Reddy to the place of accident i.e., near
TTD Kalyana Mandapam at Varni road. He know one accident took place at that spot. He do not found any vehicle at that spot. In his presence police drawn some diagrams at that spot of accident. Later, they shifted the injured
Chand Pasha to Govt. Hospital, Bodhan and from there again shifted to Govt.
Hospital, Nizamabad due to head injury for better medical treatment. Police asked him to put the signature on the diagram paper prepared by police and accordingly he put his signature thereon. He put his signature on above said paper in the police station. Lw.9 V.Sridhar Reddy was also present along with him. During cross of PW.6, he admitted that he is not the eye witness to the accident and also he has not witnessed when the injured (deceased) was shifted to Nizamabad hospital.
17.The Pws.7 and 8 who are the panch witnesses for inquest panchanama have not supported the case of prosecution and they denied to have acted as panch witnesses.
18.Pw.9 deposed that on 27.02.2016 at 10.00 am on receipt of report from
PW.1, LW.13 Ch.Venkanna, the then Inspector of Police, Bodhan registered a case in Cr.No.70/2016 U/s.304-A IPC and issued FIR to all concerned.
Thereafter, he took up further investigation and he examined and recorded 11 CC.No.115 OF 2016 Page 11 of 18 the statement of PW.1. later, he proceeded to the Govt. Hospital, Bodhan, where he examined and recorded the statements of Lw.2,Pw.2 to 5. He secured the presence of Pws.7 and 8 and held inquest over the dead body of deceased Shaik chand Pasha and subjected the dead body for Post Mortem
Examination. Lw.11 Medical Officer held PME over the dead body of deceased and issue PME report opining the cause of death was due to “intracranial hemorrhage / bleed secondary to road traffic accident”, thereafter, he visited the scene of offence place situated in front of TTD Kalyana Mandapam on
Bodhan – Banswada road, where he secured the presence of Lw.9 V Sridhar
Reddy and Pw.6 and conducted scene of offence panchanama and drawn rough sketch. On 09.03.2016 the accused voluntarily surrendered before him, as such, he effected his arrest and released him on bail after obtaining sufficient sureties. The accused failed to produce relevant documents of crime vehicle and his driving license. Lw.12 MVI, Bodhan inspected the crime vehicle and issued report opining that the accident was occurred not due to any mechanical defects of the vehicle. After completion of entire investigation, he filed charge sheet, he can identify the signature of LW.13
Ex.P4 is FIR, Ex.P5 is the inquest panchanama. Ex.P6 is the scene of offence panchanama with rough sketch. Ex.P7 is PME report. Ex.P8 is MVI report.
19.During cross examination, PW.9 denied the suggestions without examining any of the witnesses cited in the list of witnesses, he recorded 12 CC.No.115 OF 2016 Page 12 of 18 their statements according to his own version and that he has prepared the
Ex.P6 in the police station itself without visiting the scene of offence place and that he has obtained the signatures of panch witnesses Pws.7 and 8 on
Ex.P5 in the police station itself. He further denied the suggestions that in order to help the family members of deceased in order to claiming of compensation by way of MVOP, he has filed this case false case against the accused. He also denied to suggestion that the accused is no way concerned with this case and he has been falsely implicated in this case and that no such alleged offence took place and that he falsely implicated the accused in this case and filed false charge sheet and that he has obtained the Ex.P8 report from MVI without there being any proper inspection of crime vehicle by M.V.I.
20.On combined perusal of the evidence of the Pws.1 to 4 and 6 to 9 coupled with documentary evidence Exs.P1, P5 to P8 and considering the cross examination, it clearly establishes that the deceased Chand Pasha met with an accident on 26-02-2016 and he was shifted to Govt. Hospital, Bodhan for medical treatment and on the advise of medical officer while shifting the injured Chand Pasha to Govt. Hospital, Nizamabad for better treatment, he succumbed to injuries. Admittedly, the Medical Officer is not examined before this court by the prosecution. Therefore, this court came to safe conclusion that the deceased was succumbed to the injuries in the Road Traffic Accident.
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21. Now coming to the aspect of the identity of the accused and driving of the Xylo vehicle No.MH.12.GZ.9200 by the accused at the relevant point of time i.e. on 26-02-2016 at 7.30 P.M. in front of TTD Kalyana Mandapam,
Bodhan. In order to prove this aspect, the prosecution relied upon the testimony of the eye witnesses and injured i.e. the Pws.3 and 4. The PW.3 though not supported the case of the prosecution in chief examination and in cross examination by the learned APPO he deposed supporting the case of the prosecution by stating that he can say the registration number of crime vehicle and it is 9200 and it was xylo car and that he has stated before police that the name of driver as Rafi. By the above evidence in the cross examination of the PW.3 and not supporting the case of the prosecution in the chief examination and thereafter admitting the case of prosecution in the cross examination by the learned APPO coupled with his testimony before this court he failed to state the complete registration number of crime vehicle.
Hence, the evidence of the PW.3 is doubtful in proving the identity of the accused and also his driving of the car at the relevant point of time. Further,
PW.4 in chief examination he stated that he cannot say the registration number of crime vehicle and that he cannot identify the driver of crime vehicle, if shown to him. Further, he has failed to state the registration number of crime vehicle in his entire evidence stated that he cannot identify the accused person.
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22. Admittedly, no Test of Identification Parade was conducted against the accused to prove his identity. No driving license or Registration Certificate is seized to show that the crime vehicle is involved in this accident. The Pws.3 and 4 never deposed in their evidence as to identifying the accused including the physical features and descriptive particulars of the accused. Pws.3 to 5 in their 161 Cr.P.C. statements stated about the vehicle number but during their chief examinations before this court, they did not say about the registration number of vehicle. The prosecution has not filed any document to show that crime vehicle is belongs to accused. There is lot of variation of vehicle number in the charge sheet, FIR, depositions and statements corresponding to each other. No whisper about the identity of accused to show the nexus between the crime and accused. Therefore, there is no other go except to record the benefit of doubt in favour of the accused in respect of the identity of the accused. For the reasons stated that the prosecution failed to prove the identity of the accused person at the relevant point of time. Accordingly, the
Point No.(i) is answered against the prosecution and in favour of the accused.
23. POINT No.(ii):- So far as the ofences under Section 158 R/w 177 of
Motor Vehicles Act, Sec.146 R/w.196 M.V.Act and Sec.3 R/w 181 of M.V. Act are concerned, the prosecution relied upon the oral evidence of the PW.9 who is the investigation officer. In order to prove the identity of the crime car bearing No.MH.12.GZ.9200, the investigation officer has not seized the crime 15 CC.No.115 OF 2016 Page 15 of 18 vehicle. Further, the prosecution failed to examine the Motor Vehicle
Inspector who inspected the crime vehicle and furnished report to prove the case of the prosecution and not collected any documents pertaining to the said xylo car from the Regional Transport Office as to know who is the original owner of the crime vehicle and in whose name it was registered and if so whether it was insured or not. Admittedly, the involvement of the accused is not proved in the commission of the offence and the confession made to the police officer is irrelevant. It is well established principle of criminal law that the burden or proof always rests on the prosecution, that too beyond reasonable doubt. To prove the ingredients of Sections 158 R/w 177 of Motor
Vehicles Act, Sec.146 R/w.196 M.V.Act and Sec.3 R/w 181 of Motor Vehicles
Act, first of all the accident must be occurred and subsequently driving license and insurance to be established by the prosecution. Therefore, this court is of the opinion that the involvement of the accused and driving the crime vehicle at the relevant point of time are not established by the prosecution. Therefore, the benefit of doubt is extended to the accused.
Accordingly, the Point No.(ii) is answered against the prosecution and in favour of the accused.
24. In view of the above facts and circumstances and reasons stated above, this court came to a conclusion that though the prosecution established the accident and death of deceased, but failed to connect the 16 CC.No.115 OF 2016 Page 16 of 18 rash or negligent driving of the crime vehicle by the accused person and caused death of deceased. The prosecution further failed to prove that the accused drove the crime vehicle without having registration certificate, driving license and insurance. Hence, the accused is entitled for acquittal.
Accordingly, the points are answered.
25.IN THE RESULT, this court found the accused is not guilty for the offences U/s.304-A of IPC, Section 158 R/w 177 of Motor Vehicles Act, Sec.146
R/w.196 M.V.Act and Sec.3 R/w 181 of M.V. Act and he is acquitted
U/Sec.255(1) of Cr.P.C. The bail bonds of the accused are cancelled subject to
Sec.437-A of Cr.P.C. for a period of six months.
Typed to my dictation, corrected and pronounced by me in the open court on this the 16th day of August, 2022.
JUDICIAL FIRST CLASS MAGISTRATE,
BODHAN.
APPENDIX OF EVIDENCE
(WITNESSES EXAMINED ON BEHALF OF)
FOR PROSECUTION: FOR ACCUSED: PW-1 Shaik Feroz -NONE- PW-2 Shaik Anwar PW-3 M.Vijay Kumar PW-4 S.Devendar PW-5 M.A.Khader PW-6 P.Ravinder Goud PW-7 Mohd. Younus Patel PW-8 Md.Sana Patel PW-9 M.Prabhakar, IO 17 CC.No.115 OF 2016 Page 17 of 18
EXHIBITS MARKED
FOR PROSECUTION:FOR ACCUSED:
Ex.P1: Police report -NIL - Ex.P2: Signature of PW.7 on inquest panchanama Ex.P3: Signature of PW.8 on inquest panchanama Ex.P4: F.I.R. Ex.P5: Inquest panchanama Ex.P6: Scene of offence panchanama Ex.P7: PME report Ex.P8: MVI report
JUDICIAL FIRST CLASS MAGISTRATE,
BODHAN.
18 CC.No.115 OF 2016 Page 18 of 18
CALENDAR AND JUDGMENT
IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS
AT BODHAN.
C.C. No.115 OF 2016
1. Complainant : State, SI of Police, P.S.Bodhan Town.
2. Cr.No. & Nature of Offence : Cr.No.70/2016 U/s.304-A of IPC & M.V.Act
3. Name of the accused :
Mohd. Rafiuddin, S/o.Wahiduddin, aged 40 years, Muslim by Caste, Occ: Driver of Xylo Vehicle bearing No.MH12GZ-9200, R/o.H.No.8-14/4, Renjal Village and Mandal, Nizamabad District.
D A T E S:
1.OFFENCE26-02-2016
2.COMPLAINT27-02-2016
3.APPREHENSION OF ACCUSED09-03-2016
4.COMMENCEMENT OF TRIAL12-12-2019
5.CLOSURE OF TRIAL21-07-2022
6.JUDGMENT16-08-2022
7.PLEA OF THE ACCUSEDNot Guilty
4.SENTENCE OR ORDER: IN THE RESULT, this court found the accused is not guilty for the offences U/s.304-A of IPC, Section 158 R/w 177 of
Motor Vehicles Act, Sec.146 R/w.196 M.V.Act and Sec.3 R/w 181 of M.V. Act and he is acquitted U/Sec.255(1) of Cr.P.C. The bail bonds of the accused are cancelled subject to Sec.437-A of Cr.P.C. for a period of six months.
5.REMARKS : -Nil-
JUDICIAL MAGISTRATE OF FIRST CLASS
BODHAN.