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IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS,
BANSWADA.
Present:- Sri.K.SUDHAKAR,
Judicial Magistrate of First Class,
Banswada.
Dated this the 23 th day of November, 2023.
C.C.No. 190 of 20 17 .
Between :-
The State through the Sub-Inspector of Police, Banswada Police Station in Crime No.97 of 2017.
...Complainant.
V/s.
Shaik Afzal S/o Hymad, Age: 39 years, Caste: Muslim, Occ: Driver of auto bearing No.TS01-UA-2847, R/o Burgul Village of Nizamsagar Mandal, Dist. Kamareddy.
...Accused.
This case is coming before me on 20.11.2023 for final hearing in the presence of Learned Assistant Public Prosecutor for the state and of Sri.Azeem Arshad, Counsel for accused, upon perusing the material papers on record, on hearing both sides and having stood over for consideration till this day, this Court delivered the following :- :: J U D G M E N T ::
The above named accused has been brought before this Court for the trail of the offence punishable U/Sec.304-A of I.P.C.
2. The brief facts of the charge sheet as follows :
(a). On 30.03.2017 at 13:00 hours, the Pw.1/K.Srinivas came to the police station and lodged a report, wherein he stated that his nephew by name D.Laxmandas/Pw.2 is staying at Banswada along with his family members in a rented house. On 30.03.2017 at about 11:30 hours D.Laxman das/Pw.2 informed him through phone that when deceased i.e., Master D.Advaith, who is the son of P.w.2, was returning
Date: 23-11-2023. J.F.C.M., Banswada.
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to his house after completing the darshan at the Venkateshwara Temple in
Banswada, on the way near to the Hussain Kirana shop at main road of Banswada, one auto driver, who was coming from Koyyagutta village side towards banswada in his auto, drove his auto bearing No.TS01-UA-2847 in a rash and negligent at high speed and struck the deceased, due to which deceased sustained severe injuries over his chest and legs. Then, immediately the deceased/ Master D.Advaith age:4 years was referred to the Nizamabad Govt. Hospital and when the deceased/
Master D.Advaith was shifting to Nizamabad Govt. hospital for treatment, the deceased succumbed to his injuries before reaching to the hospital. Hence, he requested to take necessary action against the auto driver.
(b). Basing on his report, the Pw.12/Sub-Inspector of Police, P.S. Banswada registered a case in crime No. 97 of 2017 for the offence U/s.304-A of IPC and took up the investigation. During the course of investigation, the Pw.12/Sub-Inspector of
Police, P.S. Banswada examined the Pw.1/K.Srinivas and recorded his statement.
Thereafter, he deputed the Pw.13/Head Constable of P.S. Banswada to conduct inquest panchanama over the dead body of deceased. Accordingly, the Pw.13/ Head
Constable of P.S. Banswada proceeded to Govt. Hospital, Nizamabad, where he examined and recorded the statements of Pws.2 to 6 .i.e..(D.Laxman Das,
D.Lavanya, D.Anjayya , D.Sarojana & Godugu Laxman) and also conducted inquest panchanama over the dead body of deceased in the presence of panch witnesses i.e., Pws.7 & 8(Mohd.Akhil and P.Narender). After the inquest panchanama, the Pw.3 handed over the dead body of deceased to Pw.11/Medical
Officer, who conducted an autopsy and issued a PME report.
(c). Thereafter, the Pw.12/Sub-Inspector of Police, P.S. Banswada visited the scene of offence and there he conducted a scene of offence panchanama in the presence of two panch witnesses i.e., Lw.9/Md. Razak and Pw.9 by drafting a rough sketch.
On requisition of Pw.12/Sub-Inspector of Police, P.S. Banswada, the
Date: 23-11-2023. J.F.C.M., Banswada.
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Pw.10/Asst.Motor Vehicle Inspector inspected the crime vehicle and issued accident report. On 12.04.2017 accused came to the police station and surrendered himself before the Pw.12/Sub-Inspector of Police, P.S. Banswada and voluntarily confessed to have committed this offence, then the Pw.12/Sub-Inspector of Police,
P.S. Banswada verified the driving license and other vehicle documents of the crime vehicle and found them correct and valid. Thereon, Pw.12/Sub-Inspector of
Police, P.S. Banswada issued a notice U/s. 41-A of Cr.p.c. to accused with an instruction to appear before this Court as and when he was summoned. After completing the entire investigation , the Pw.12/Sub-Inspector of Police, P.S.
Banswada filed the charge sheet against the accused for the offence U/Sec.304-A of
I.P.C.
3. Upon receipt of charge sheet, the case was taken on file against the accused for the offence punishable U/Sec.304-A of I.P.C. When the accused appeared before this Court, he received copies of case documents, as contemplated U/Sec.207 of
Cr.P.C. The accused was examined U/Sec.251 of Cr.P.C. and the Charge for the offence U/Sec.304-A of I.P.C., against the accused was read over and explained to him orally in his vernacular language, for which he pleaded not guilty and claimed to be tried. The prosecution examined P.ws-1 to 13 out of 14 listed witnesses and got marked Exs.P.1 to P.7. After completing the prosecution evidence, the accused was examined U/Sec.313 of Cr.P.C., by putting an available incriminating evidence against him , for which he denied the same and reported no defence evidence.
4.Heard both sides and perused the entire material on record .
5.Point for determination :
I. Whether the accused, being the driver of crime vehicle .i.e. auto Bearing No.TS01-UA-2847 , drove the crime vehicle in a rash or negligent manner and hit the deceased /D.Advaith on 30-03-2017 at about 09:30 hours, and caused the death of deceased /D.Advaith ?
Date: 23-11-2023. J.F.C.M., Banswada.
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II. Whether the prosecution has proved the guilt of accused for the offence punishable U/Sec.304-A of I.P.C., beyond all reasonable doubt?
6. POINT. Nos.I & II : It is a case of prosecution that on 30.03.2017 at about 9:30 am, when the deceased along with his grand father/Pw.4/D.Anjayya were returning to their house after the darshan at Venkateshwara Temple in Banswada, on the way near to the Hussain Kirana shop at main road, Banswada, accused being the driver of auto bearing No.TS01-UA-2847, drove his auto/crime vehicle in a rash and negligent manner at high speed and hit the deceased, due to which deceased sustained severe injuries over his chest and legs. Then immediately the deceased/D.Advaith was shifted to Government Hospital Banswada, where the doctors refered the deceased/D.Advaith to Nizamabad Hosiptal for the better treatement . When the deceased was shifting to Nizamabad Govt. hospital for better treatment, on the way deceased succumbed to his injuries.
7. The Pw.1 is the informant and uncle of P.w.2, the P.ws.2 & 3 are the parents of deceased/d.Advaith, the P.w.4 is the eye witness and grand father of deceased, the
P.w.5 is the grand mother of deceased, the P.w.6 is the maternal uncle of deceased, the P.ws.7 & 8 are the inquest panch witnesses, the P.w.9 is the panch witness for scene of offence panchanama, the P.w.10 is the AMVI, Kamareddy, Pw.11 is the
Medical Officer and P.ws. 12 & 13 are the Investigation Officers.
8. In order to prove the charged offence , the prosecution has to prove the essential ingredients of Section 304-A of IPC are that (1) There must be the death of a person; (2) The death must be caused by the act of the accused; (3) The death must be caused due to any rash or negligent act of accused; and (4) the act of the accused must not amounts to culpable homicide.
9. To prove the death of the deceased/D.Advaith, the prosecution has presented the ocular and documentry evidence. The P.w.1 who is the informant and uncle of
P.w.2, testified that on 30.03.2017 deceased’s father .i.e. P.w.2 made a phone call to
Date: 23-11-2023. J.F.C.M., Banswada.
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him and informed that his son namely Advaith/deceased met with an accident near right side to the Fire Office, Banswada and deceased was shifted to Govt. Area
Hospital, Banswada. Thereafter, for better treatment, the deceased was referred to
Govt. Hospital, Nizamabad. When he was about to go the hospital, the P.w.2 made a phone a call to him and informed that Advaith /deceased had already died . Ex.P1 is police report.
10. The Pw.2/D.Laxman Das who is father of deceased , testified that on 30.03.2017 his father/ P.w.4 and his Son /deceased went to Mandir at Banswada and after darshan, when they both were coming back to home, on the way at the main road of Bandagally in Banswada one auto driver drove his auto bearing No.
TS01-UA-2847 at high speed and hit his son/deceased, due to which deceased received severe injuries. Then he shifted his son/deceased to the Govt. Hospital,
Banswada and on the advise of doctors, he shifted the deceased again to Govt.
Hospital, Nizamabad for better treatment. The deceased Master Advaith had died while undergoing treatment at Govt. Hospital, Nizamabad.
11. The Pw.3/Smt.D.Lavanya who is the mother of deceased , testified that, on 30.03.2017, her father-in-law/P.w.4 and her son deceased went to the
Venkateshwara swamy temple in Banswada and when they were returning from the temple, one auto driver, drove his auto in a high speed and hit her son/deceased, due to which her son/deceased received severe injuries. At the time of accident, she was at her house in Banswada and one of the shop owners of her area informed about the accident, then she immediately went to the spot and shifted her son/deceased to the government hospital Banswada and from there they shifted her son/Advaith to the Nizamabad government hospital for the better treatment as per the advice of doctors. At the Nizamabad hospital her son died while undergoing treatment.
12. The Pw.4/D.Anjaiah who is the grand father of deceased and eye witness, deposed that on 30.03.2017, he along with his grand son/deceased and his grand
Date: 23-11-2023. J.F.C.M., Banswada.
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daughter went to Venkateshwara Temple in Banswada and when they were returning home, on the way at Bandagalli Road one auto driver drove his auto at high speed and hit his grand son/deceased, due to which his grand son/deceased received injuries over his face and chest. Then immediately he took the deceased to the govt. hospital Banswada and there doctors advised them to shift the deceased to
Nizamabad Govt. hospital. Then they shifted the deceased to govt. hospital
Nizamabad and there deceased had died while undergoing treatment.
13. The Pw.5/Smt.D.Saroja who is the grand mother of Deceased testified that , about 5 years back , the Pw.4 along with deceased went to the temple at Banswada and when they were returning home, on the way one auto came from the side of
Koyagutta Village and struck her grandson/deceased, due to which her grand son received injuries over his head and right leg. Then immediately her grand son was shifted to Govt. Hosopital, Banswada and thereafter, they shifted her grand son/deceased to the Nizamabad Govt. Hospital. At the govt. Hospital, Nizamabad, doctor examined her grand son/deceased and reported that he/deceased had died.
One of the shop owners informed her about the accident, when she was at her house.
14. The Pw.6/G. Laxman who is the maternal uncle of deceased , testified that , on 30-03-2017 he received a phone call from P.w.2, who informed him that one passenger Auto hit the deceased/Advaith i.e., his nephew at high speed, due to which his nephew/deceased received severe injuries and was shifted to the
Government Hospital, Nizamabad. Then, he immediately went to the Government
Hospital, Nizamabad where he found that his nephew had succumbed to his injuries. He found that his nephew/deceased received injuries all over his body.
15. Further to prove the death of the deceased/Advaith , the prosecution had presented the evidence of P.w.13/ Asst.Sub-Inspector of police , who deposed that on 30.03.2017 he went to the Nizamabad Govt. Hospital and there he conducted an
Date: 23-11-2023. J.F.C.M., Banswada.
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inquest panchanama over the dead body of deceased namely Anvith of 4 years in the presence of panch witnesses i.e., Pws. 7 & 8. During his inquest panchanama, he observed that deceased received injuries on his right side of fore head, left side of the stomach and left hand & leg fingers. The P.w.7/ Panch witness for inquest panchanama deposed that on 30-03-2017 at 02:30 P.M police conducted an inquest panchanama over the dead body of deceased in his presence and in the presence of
P.w.8/another panch. Ex.P.2 is the inquest panchanama . The P.w.8/another panch witness for inquest panchanama deposed that at about 5 years back on request of
P.w.2 he went to Government Hospital, Nizamabad, and there he found deceased at
Mortuary room and Police conducted an inquest panchanama in his presence.In the cross examination, the P.w.7 admitted that he did not remember on which part of the deceased’s dead body contains injuries. The P.w.8 admitted that he had not observed the injuries over the dead body of deceased.
16. The Pw.11/Dr. B.V.Nagamohan Rao testified that , on 30-03-2017 at 4:15 p.m., he received a requisition from P.S. Banswada to conduct autopsy over the dead body of Dasa Adwaith. Accordingly, he started the autopsy at 4:30 a.m., and found the following injuries : 1).Abrasion contusion measuring 4 X 3 cms on right temple region and 2 X 1 on right bony cheek 2).Grazed abarasion measruing 9 X 5 cms front Right side of front of abdomen. 3). Grazed abasrion of measuring 7
X 5 cms present over front of left side of abdomen. and 4). Grazed abrasion size 7
X 5 cms present over dorsum of left foot toes. The P.w.11 also found internal injuries as follows: 1.On reflection of scalp contusion 12 X 7 cms right temporo- parietal region, 2.Fractures skull vault present at right parietal region measuring 6 cms and fracture base of skull, 3.Diffuse subdural and sub arachnoid hemorrhage present all over the brain, The cause of death to the best of his knowledge & belief due to head injury. He concluded his autopsy at about 5.30 pm. After completion of autopsy he issued autopsy report/P.M.E., of deceased. Ex.P.5 is the
PME report.
Date: 23-11-2023. J.F.C.M., Banswada.
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17. Perused the evidence of Pws. 1 to 8, P.w.13 and P.w.11 and the documentry evidence like P.M.E report, Photographs of dead body of deceased and Inquest panchanama of deceased. The P.ws.2 & 3 stated that deceased received severe injuries and succumbed to his injuries while undergoing treatment , the P.w.4 stated that deceased sustained injuries over his face and chest and succumbed to his injuries while undergoing treatment , the P.w.5 stated that deceased received injuries over his head and right leg and succumbed to his injuries while undergoing treatment , the P.w.6 stated that he found that his nephew/deceased had died and also found injuries all over his body and the P.w.13 stated that during his inquest panchanama, he observed that the injuries over the right side of forehead, left side of the stomach and left hand & leg fingers on the dead body of deceased. The
Inquest panch witnesses P.ws.7 & 8 have supported the evidence of P.w.13 who conducted inquest panchanama and the counsel for accused had not elicited any contrary statements to disbelieve the presence of panch witnesses at the time of conducting inquest panchanama . The panch witnesses could not disclose the injuries over the dead body of deceased; however their evidence about their presence while conducting inquest panchanama is cogent and it cannot be discarded . The P.w.11/Medical officer deposed inter alia that deceased received injuries over right side of temple region & bony cheek and right side of front of abdomen and fracture skull vault and fracture base skull at right side of his parietal region.
Finally, the P.w.11 opined that deceased died due to head injury . The injuries of deceased mentioned in the inquest panchanama and P.M.E report are matching with the oral evidence of P.w.11/I.O and P.w.13/Medical officer. On the other hand, the defence counsel no where denied the death of deceased except conducting of inquest panchanama and autospy over the dead of deceased. The counsel for accused cross examined the P.w.13 and P.w.11 , but nothing contrary statements were elicited to disbelieve their evidence with respect to conducting an inquest panchanama and autospy over the dead body of deceased. The counsel for accused had not at all tried to disprove the death of deceased and basing on the oral
Date: 23-11-2023. J.F.C.M., Banswada.
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evidence of material witnesses and documentry evidence like P.M.E report,
Phoyographs of deceased’s corpse and Inquest panchanama, it can be concluded that prosecution had proved that Master Advaith/deceased died on 30-03-2017.
18. Having been proved the death of deceased, now the prosecution has to prove that on 30-03-2017 at about 09:30 hours accused drove his crime vehicle i.e. auto
Bearing No.TS01-UA-2847 in rash or negligent manner and hit the deceased, and caused the death of deceased. Perused the entire evidence of prosecution, there is only one eye witness/P.w.4 in this case to prove the rash or negligent act of accused. The P.w.4 who is the grand father of deceased , testified that , on 30.03.2017, he along with his grand son/deceased and his grand daughter went to
Venkateshwara Temple in Banswada and when they were returning home, at
Bandagalli Road one auto driver drove his auto at high speed and hit his grand son/deceased, due to which his grand son/deceased received injuries over his face and chest. Then immediately he took his grand son/deceased to the govt. hospital
Banswada and there doctors advised them to shift the deceased to Nizamabad hospital. Then they shifted the deceased to Govt. hospital Nizamabad and there deceased had died while undergoing treatment. Further , he/P.w.4 testified that he could identify the person who caused an accident with an auto to his grand son on the date of incident. Witness identified the accused in the open court stating that
Accused drove his auto at high speed and hit his grand son . During the cross examination, the P.w.4 admitted that Banswada to yellareddy road is a very busy road with heavy vehicles and further P.w.4 stated correct registration number of crime vehicle/auto as TS01-UA-2847.
19 . The Pw.7/panch witness for Inquest panchanama, deposed inter alia that at about 5 to 6 years back deceased’s father i.e., P.w.2 used to reside in the Complex opposite to his Hotel at Dalmalligucha, Banswada and on one day P.w.5 who is
Grand mother of deceased, along with deceased were coming from the Mandir and when they were crossing the road, at that time one auto which was coming from
Date: 23-11-2023. J.F.C.M., Banswada.
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Koyyagutta, hit the deceased, due to which deceased received severe injuries. Then the deceased was shifted to Government Hospital, Banswada and when the deceased was shifting to Government Hospital, Nizamabad for the better treatment, on the way the deceased had succumbed to his injuries.
20.Further to substantiate the evidence of P.w.4 , the prosecution presented the evidence of panch witnesses for crime scene panchanama to prove the scene of offence panchanama. The Pw.9/Panch witness for scene of offence panchanama, testified that the accident was occurred near Venkateshwara Temple in Banswada, and he was running a Kirana business near to the said Temple. The Police came to the accident spot and conducted a panchanama in his presence by drafting a rough sketch in his presence. After the completion of panchanama Police obtained his signature. Ex.P.3 is the scene of offence panchanama. In the cross examination, the
P.w.9 admitted that he could not say the exact boundaries of crime scene.
21. The Pw.10/Asst.Motor Vehicle inspector testified that, she received a requisition from SHO, Banswada on 29-04-2017 for the inspection of crime vehicle/Auto bearing No. TS 01 UA 2847. Accordingly he visited Banswada
Police station on 29.04.2017 and inspected the crime vehicle. During her inspection she found scratches on RHS head light, and side rack. The insurance copy of crime vehicle and driving license of the driver were produced. After her inspection, she issued MVI Report of crime vehicle opining that the accident was not occurred due to any mechanical defects. Ex.P4 is her inspection report. The counsel for accused contended through his sugggestions that P.w.10 has issued her M.V.I report without inspecting the crime vehicle and the said suggestion was denied by the witness/P.w.10. Except the denial suggestion about issuing false report by P.w.10, nothing contrary was elicited from the witness P.w.10.
22. The Pw.12/S.I of Police , P.S Banswada, testified that , on 30.03.2017 at 13:00 hours, he received a report from Pw.1/informant and basing on the said report/ Ex.P.1, he registered a case in Cr.No.97/2017 for the offence U/s. 304-A of
Date: 23-11-2023. J.F.C.M., Banswada.
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IPC and issued FIR. Thereafter, he examined and recorded the statement of Pw.1 and thereon he examined and recorded the statements of Pws. 2 to 6 and proceeded to the Govt. Hospital, Banswada and there he conducted inquest panchanama over the dead body of deceased in the presence of Pws.7 & 8/panch witnesses and handed over the dead body of the deceased . Later he proceeded to the scene of offence and there he conducted scene of offence panchanama in the presence of
Pw. 9 & Lw.9/Md. Razaq by drafting a rough sketch. Further he sent requisition to the MVI/Pw.10 for the examination of the crime vehicle. The Pw.11 conducted an autopsy over the dead body of the deceased . He/P.w.12 collected the MVI report,
PME report and inquest panchanama. After completion of entire investigation,
P.w.10 filed charge sheet against the accused for the offence U/s. 304-A of IPC.
Ex.P6 is the FIR, Ex.P7 is photos (05). He issued notice U/s. 41-A of Cr.p.c. on accused and released him. The crime vehicle bearing No. TS01-UA-2847. In the cross examination, the P.w12 admitted that he did not know whether P.ws.1 to 6 belongs to one family and other than Pw.s.1 to 6 , he had not examined any other person. He did not examine the owner of crime vehicle.
23. The Lrd.A.P.P submitted that P.w.4/eye witness clearly narrated the incident and identified the accused in the open court stating that accused drove the auto at high speed and hit his grand son , due to which his grand son/deceased received injuries and succumbed to his injuries. The P.w.4 also deposed the correct crime vehicle registration number i.e. Auto Br.No.TS01-UA-2847 . The P.w.10/A.MV.I inspected the crime vehicle and issued a report that accident was not occurred due to any any mechanical deffects . The P.M.E report, Photographs of dead body of deceased and inquest panchanama are clearly explaining the cause of death of deceased; which are corroborating the oral evidence of prosecution witnesses . It is purely rash and neglegent act of accused while driving the crime vehicle that caused fatal accident,wherin the deceased had died. Further he argued that death of deceased is proved and rash and negligent act of accused is also proved without any
Date: 23-11-2023. J.F.C.M., Banswada.
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inconsistency and ambiguity in the presented evidence. Therefore, prosecution has successfully established the guilt of accused for the offence under Section-304-A of
I.P.C and prayed this court to convict the accused.
24. Against the argument of Lrd.A.P.P , the defence counsel vehemently argued and submitted that the prosecution case agaisnt the accused is U/Sec.304-A of I.P.C and as per the report/Ex.P.1 of P.w.1 , the accident was occurred near to the hussain kirana shop, but as per the evidence of P.w.2, the accident was occurred at Fire office of Banswada. The distance from the hussain kiarana shop near banda galli area to Fire office at banswada is (01) Kilometer and there is an inconsistency in the evidence of prosecution witnesses with regard to the place of alleged accident.
There is no rash or negligent act on the part of accused , infact the police had falsely implicated the accused in this case for the insurance purpose by suppressing the actual facts of the case . The P.ws.1 to 6 all belongs to one family; which can be seen easily in the charge sheet and they all are interested witnesses. The
Investigation officer had not examined any independent witnesses other than the family members of deceased, suppressed the actual truth of the incident and faslely implicated the accused in this case. The evidence presented by the prosecution is not at all sufficient to prove the rash or negligent act of accused and the prosecution has not elicited the ingredients of rash or negligent act of accused from the prosecution witnesses. The rough sketch of scene of offence panchanama does not depicts any skid marks of crime vehicle to know that whether the crime vehicle was in speed or not. The concerned investigation officer had not investigated the case properly and not elicited the actual fact in issue, and the best reason known to him. The prosecution failed to prove the charged offence against the accused beyond all reasonable doubt and prayed this court to acquit the accused in the interest of justice.
25. On careful scrutiny of the entire evidence in the record, as per the prosecution case and evidence of prosecution witnesses before this court, the P.ws.1 to 3, 5 & 6
Date: 23-11-2023. J.F.C.M., Banswada.
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are not the eye witnesses to the alleged incident and the P.w.4 is only eye witness to the alleged accident . On perusing the evidence of P.w.4, he testified that on 30- 03-2017 when he along with deceased were returning home after the the darshan at venkateshwara temple in banswada, on the way at bandapalli road accused drove his auto Br.No. TS-01-UA-2847 at high speed and hit his grand son /deceased , due to which his grand son received inuries over his face and chest and had succumbed to his injuries while undergoing treatement at Nizamabad Hospital. Though the
P.w.7 was cited as inquest panch witness in the charge sheet, he deposed inter alia that on one day when P.w.5/Grand Mother of deceased along with her grand son/deceased were coming from mandir and crossing the road , at the time one auto which was coming from koyyagutta, hit the deceased, due to which he succumbed to his injuries . On perusing the scene of offence panchanama/Ex.P.3, which clearly explains that alleged accident was occurred on the state highway of
Road.No.6 and one C.C road which leads to venkateshwara temple, is situated at eastern side of crime scene, one tea hotel belongs to Md.Ghouse is situtaed at western side of crime scene, one road which leads towards banswada bustand, is situated at westeren side of crime scene and one road which leads to nizamsagar , is situated at southern side of crime scene.
26. The vehicles on the highway roads are usually on speed and the speed limit of vehicles is high on the highway roads. In the case on hand the prosecution had not elicited from P.w.4 atleast an approximate speed of crime vehicle ; however the driving at high speed is not in itself a negligent act. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result and that it may not always possible to determine with reference to the speed of a vehicle whether a person was driving rashly or negligently and that even when one is driving a vehicle at slow speed, but recklessly and negligently, it would amounts to rash and negligent driving within the language of U/Sec.279 of I.P.C. Mere driving of a vehicle at high speed or slow speed do not lead to an inference that negligent
Date: 23-11-2023. J.F.C.M., Banswada.
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or rash driving had caused the accident resulting in the death of deceased. Infact the speed is no criteria to establish the fact of rash or negligent driving of the vehicle.
In the case on hand , the evidence of P.w.4 is believable to an extent that accused drove the crime vehicle and hit the deceased , but when it is coming to the discussion about rash or negligent act of accused, the eye witness/P.w.4 has deposed simply as accused drove his auto TS01-UA-2847 at high speed and hit the deceased. In order to impose a criminal liability on the accused, the witnesses have to explain that how the driver of the crime vehicle had not taken sufficient care and caution or how the driver was careless, incautious, thoughtless and imprudent while driving the crime vehicle. The prosecution has failed to elicit the exact circumstances at the time of alleged accident and that how the accused was careless and not cautious from the P.w.4/eye witness according to his knowledge.
Therefore, it can be said that evidence of P.w.4 is suffering with ambiguity with respect to the driving of accused. The P.w.7/Inquest panch witness also stated that one auto hit the deceased when the deceased and his grand mother were crossing the road . Even if we presume that P.w.7 is the eye witness to the alleged accident, his evidence remained silent in all the aspects which depicts the rash or neglient act of auto driver and a simply statement like auto hit the deceased is not at all enough to come to the conclusion of rash or negligent act of auto driver.
27. Considering the facts of case on hand , this court is refering to the judgment of the Hon’ble Apex court in State of Karnataka Vs. Satish 1998(8) SCC 493 , wherein, the importance of the prosecution establishing guilt of the accused in a case of rash and negligent driving was discussed. It was held as follows:
"4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence or "rashness by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed. "High speed is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "highspeed in the facts and
Date: 23-11-2023. J.F.C.M., Banswada.
15/16 C.C. No.190 of 2017.
circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness or negligence “ could be drawn by invoking the maxim "res ipsa loquitur”.
28. In the case on hand the eye witness P.w.4 deposed that crime vehicle came at high speed and hit the deceased, but the prosecution has failed to bring on record material to establish as to what it meant by "highspeed in the facts and circumstances of the case. The prosecution remained silent and not took a pain to cull out the circumstance which amounts to rashness or negligence of accused and relied on the simply statement of high speed, Basing on the above discussion, it can be concluded that though the prosecution was able to prove that the deceased boy died due to hit by the auto being driven by the accused, it has miserably failed to prove that there is a rash and negligent act of driving on the part of the accused. A reasonable doubt arises as to there is any rash and negligent act on the part of the accused at the time of the accident. As seen from the evidence of Pw.4/eye witnesses and the benfit of doubt must be given to the accused. The points are accordingly answered.
29. In the result, accused is found not guilty for the offence punishable
U/Sec.304-A of I.P.C., and accordingly he is acquitted of the same U/Sec.255 (1) of
Cr.P.C. The bail bonds of the accused shall remain in force for a period of six months as contemplated U/Sec.437-A of Cr.P.C.
Typed on my dictation, corrected and pronounced by me in open Court on this, the 23rd day of November, 2023.
Judicial Magistrate of First Class,
Banswada.
Date: 23-11-2023. J.F.C.M., Banswada.
16/16 C.C. No.190 of 2017.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Prosecution : For Defence :
P.w.1 : K.Srinivas --None-- P.w.2 : Dasa Laxman Das P.w.3 : D.Lavanya P.w.4 : D.Anjaiah. P.w.5 : D.Saroja. P.w.6 : G.Laxman. P.w.7 : Mohd .Akheel Ahmed . P.w.8 : P.Narender. P.w.9 : Kunthala Naresh. P.w.10: M.Anitha P.w.11: Dr.B.V. Naga Mohan rao. P.w.12: B.Shivaraj. P.w.13: G.Prashanth reddy.
EXHIBITS MARKED FOR PROSECUTION
Ex.P.1 : Report of P.w.1.
Ex.P.2 : Inquest Panchanama.
Ex.P.3 : Scene of offence panchanama.
Ex.P.4 : Motor vehicle Inspection Report.
Ex.P.5 : P.M.E Report.
Ex.P.6 : F.I.R.
Ex.P.7 : (05) Photos
EXHIBITS MARKED FOR DEFENCE
--Nil--
MATERIAL OBJECTS MARKED
--Nil--
Judicial Magistrate of First Class,
Banswada.
Date: 23-11-2023. J.F.C.M., Banswada.
C.C.No.190 of 2017.
CALENDAR AND JUDGMENT (IN THE FORM OF P.D.F., IN C.D.)
IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS,
BANSWADA.
C.C.No. 190 of 20 17 .
1. Date of offence:30.03.2017.
2. Date of complaint:30.03.2017.
3. Date of apprehension:12.04.2017.
4. Date of release :12.04.2017.
5. Date of commencement of trial:27.12.2017.
6. Date of closure of trial:20.11.2023.
7. Date of Judgment:23.11.2023.
8. Explanation of delay or remarks:---
Complainant:
The State through the Sub-Inspector of Police, Banswada Police Station in Crime No.97 of 2017.
Description of accused:
Shaik Afzal S/o Hymad, Age: 39 years, Caste: Muslim, Occ: Driver of auto bearing No.TS01-UA-2847, R/o Burgul Village of Nizamsagar Mandal, Dist. Kamareddy.
Offence Under Section: U/Sec.304-A of I.P.C.
Finding: Found not guilty.
Sentence : Acquitted U/Sec.255 (1) of Cr.P.C.
Judicial Magistrate of First Class,
Banswada. To
The Hon’ble I Additional District and Sessions Judge, Kamareddy.
23-11-2023. J.M.F.C. Banswada
C.C.No.190 of 2017.
all the prosecution witnesses P.ws. 1 to 6 stated that deceased died in the accident and the death of the deceased is not in dispute and the defence counsel also not disputed anywhere in his cross examination about the death of deceased. The evidence of medical officer/P.w.11 who conducted autopsy over the dead body of deceased, clearly explained the injuries sustained by the deceased and reason for the death of deceased and his evidence is coroborated by his P.M.E report i.e.Ex.P.5. Though the inquest panch witnesses P.ws.7 & 8 stated as police conducted inquest panchanama in their presence and marked inquest panchanama as Ex.P.3 through them , they/P.ws.7 & 8 could not state injuries over the dead body of deceased in their evidence. The P.w.7 stated in his cross examinations as he did not remember on which part of body, the deceased received injury and P.w.8 stated that he did not observed the injuries over the dead body of deceased. Though the evidence of panch witnesses for inquest panchanama had not satisfied the contents of inquest panchanama, the oral evidence of the witnesses P.ws.1 to 6 & P.w.11/medical officer and the P.M.E report of deceased /Ex.P.5 and photographs showing the dead body of deceased.i.e.Ex.P.7 had proved the death of the decased.
23-11-2023. J.M.F.C. Banswada