Smt N.Saraswathi

1

IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS:

NARASANNAPETA

Present: Smt. N.SARASWATHI,

Judl. Magistrate of I Class, Narasannapeta

Monday, the 3rd day of April, 2017

Calendar Case No.165/2016

Between:

State represented by The Sub inspector of Police Narasannapeta Police Station. ….Complainant. And:

A1- Amballa Purnachandrarao, s/o. Venkata Narayana, age 41 years, Turpukapu by caste, Kothakota village of Sarubujjili Mandal, Srikakulam District. (A2 is separated and numbered as CC 223/2016) ….Accused

This case is coming on 31-3-2017 for final hearing before me in the presence of Asst. public prosecutor for the state, and of Sri G.Satyanarayana, Advocate for the accused no.1, upon perusing the material papers on record, this court delivers the following:

JUDGMENT

1.The accused arraigned before this court for the charge under sections 304-A of Indian Penal Code.

2. The SI of Police, Narasannapeta filed a report u/s 173 Cr.PC.

with the following averments in brief.

3. On 12-5-2015 at about 15-00 hours while the deceased and others were on work at V.N.puram site, the deceased went for drinking of water which is abetting to the concrete mixing miller by which time the sareee of the deceased was caught by the Mixture, due to that she fell down 2 and received injuries and she was shifted to C.H.C.Narasannapeta. Basing on the written report of PW1, PW5 registered the case in cr.no.75/2015 u/sec. 304-A IPC and issued FIR later he conducted further investigation and after completion of investigation PW6 laid charge sheet.

4.Considering the material on record this court took cognizance under sections 304-A of IPC.

5. On appearance of accused copies of documents were furnished as envisaged U/s 207 Cr.P.C.

6. Accused was examined U/s 251 Cr.P.C for the offence u/s.

304-A of Indian Penal Code, for which the substance of accusation was read over and explained the same to accused in Telugu. On understanding the same accused pleaded not guilty and claimed to be tried.

7.To bring home guilt of the accused the prosecution examined

PW.1 Neelam Salayya, PW.2 Tarra Govindarao, PW.3 Korlana

Chakradarudu, PW.4 Dr. H.Arunakumari, PW.5 B.Nagabusanarao, ASI,

PW.6 N.Lakshmana, S.I of Police and Ex.P1 to Ex.P10 marked.

8. After closure of the prosecution evidence, accused was examined u/s.313(1)(b) for the incriminating material available against him. On understanding the same, the accused denounced the incriminating material and reported no defence evidence.

9. Heard arguments of both sides.

3

10.Now the point for determination:-

1. Whether Deceased Neelam Anandamma died in the

accident occurred on 12-5-2015?

2. Whether accused is responsible for the death of deceased ?

3. Whether prosecution did prove guilt of accused for the offence under section 304-A IPC beyond all reasonable doubts?

11. POINT NO.1

Whether Deceased Neelam Anandamma died in the accident

occurred on 12-5-2015?

The case of the prosecution is that deceased .The case of the prosecution is that deceased died as her saree caught by the concrete mixture of the accused. P.W.1 testifies that in the year 2015 he along with others while doing labour works at V.N.Puram site in t he meanwhile deceased went for drinking of water, her saree was caught hold by concrete mixture , as a result she fell down and received injuries. His report to the police is exhibited as ExP1. He further testifies that he was present at the time of inquest conducted over the body of the deceased.

P.W.3 testifies that he acted as Panchayatdar and his signature on Inquest

Report is exhibited as Ex P4.

12. The evidence of PW.1, PW3 corroborates that deceased died.

Ex.P1 is report, Ex.P6 is First Information Report,Ex.P7 is the altered

F.I.R. Ex.P10 is the Inquest report, Ex.P 5 is the Postmortem Certificate are supporting the evidence of PW.1, PW3 in respect of the death of deceased.

Moreover the said fact is undisputed. Accordingly this point is answered.

4

13.POINTS No.2 and 3

Whether accused is responsible for the death of accused ?

Whether prosecution did prove guilt of accused for the offence under section 304-A IPC beyond all reasonable doubts?

The prosecution alleges that due to the negligence of the accused deceased died. PW5 testifies that on 12-5-2015 he received report from PW1 and same was registered as case in cr.no.72/2015 u/sec. 174 of

IPC and issued FIR. P.W.6 testifies that during his course of investigation he found the investigation of his S.I.of Police and during his course of investigation he altered the section of law from 174 of IPC to 304 A IPC and issued FIR and later went to scene of offence and prepared scene observation report , Rough sketch and also he conducted inquest over the body of the deceased. He further testifies that he issued 41 A CrPC notice to the accused A2 and produced the accused before the court for Judicial custody, and after completion of investigation he laid charge sheet.

14.The doctor examined as PW4, she testifies that she conducted autopsy over the body of the deceased on 13-5-2015 at about 3-45 PM and issued P.M. Certificate. It is exhibited as Ex.P5.

15.INJURY: According to medical terminology, Injury means wound or trauma; harm or hurt; usually applied to damage inflicted on the body by an external force. In other words, as was observed in Mrs. Veeda

Menezes vs Yusuf Khan And Anr, 1966 AIR 1773=1966 SCR 123, the expression "harm" has not been defined in the 'Indian Penal Code: in its 5 dictionary meaning it connotes hurt, injury; damage; impairment, moral wrong or evil. There is no warrant for the contention raised that the expression "harm" in s. 95 does not include physical injury. The expression "harm" is used in many sections of the Indian Penal Code. In ss. 81, 87, 88, 89, 91, 92, 100, 104 and 106 the expression can only mean physical injury.

In s. 93 it means an injurious mental reaction. In s. 415 it means injury to a person in body, mind, reputation or property. In ss. 469 and 499 harm, it is plain from the context, is to the reputation of the aggrieved party.

16.Generally in Accident cases:-

The provisions of section apply to cases where there is no intention to cause death, and no knowledge that the act done in all probability would cause death. Section 304-A IPC postulate a rash and negligent act entailing death of another. A man, as started in Kenni, may bring about an event without having adverted to it at all; he may not have forcing that his actions would have this consequence and it will come to him as a surprise. The event may be harmless or harmful ; if harmful the question arises whether there is legal liability for it. In tort (as common law) this is decided by considering whether or not a reasonable man in the same circumstances would have realized the prospect of harm and would have stopped or changed his course so as to avoid it. If a reasonable man would not, then there is no liability and the harm must lye where it false.

But if the reasonable man would have avoided the harm then there is liability and the perpetrator of the harm is said to be guilty of negligence.

6

17.The world negligence denotes and should be used only to denote, such blameworthy inadvertence; and the man who through his negligence as brought harm upon another a legal obligation to make reparation for it to the victim of the injury who may sue him in tort for damages.

18.Whether negligence involves a mental element, or whether it is conduct assessed by reference to an impersonal standard is arguable.

What is or is not negligent involves a consideration of that which a reasonable man would or would not have done in the circumstances; this does not invariably rule out of consideration subjective factors such as a person's knowledge, physical condition or age. A statutory provision may be sue-pharised as to require consideration of the defendant's negligence or maturity in order to determine whether it was negligent for him to have acted as he did.

19.There are two parts of section 304-A IPC. The part relates to causing of death of any person by any rash act of the accused. The second part comes in operation when the death is caused due to negligent act; but in both cases, it should not amount to culpable homicide. The prosecution as either to prove the first part or the second part but there may be cases where the both the parts may come in operation simultaneously if the evidence suggests that the act of the accused was not only rash but also negligent which resulted in the death of someone.

7

20.Criminal rashness is hazardy a dangerous or wanton act with the knowledge that it is so and that it may cause an injury but without intention, to cause injury or knowledge that it will probably be caused. The criminality lies in taking the risk of doing such an act with recklessness or being indifferent as to the consequence. Reckless driving or driving in a manner dangerous to public is rashness. In order to see whether it is so the condition of the road, the amount of traffic at the time and number of persons frequently moving about on a road or expected to be on the road, are some of the factors to be taken into consideration in assessing the rashness or negligence of the driver.

21.It is the duty of every man who drives a vehicle on the public way, to drive it with such a care and caution as to prevent , as far as possible, any injury to anyone. Criminal negligence is gross and culpable neglect or failure to exercise with reasonable care and proper care to guard against injury either to the public generally or to an individual in particular as non exercise of this imperative duty on the part of the accused amount to culpable neglect.

State of Himachal Pradesh vs. Mohinder Singh (1989) 2 crimes 151.

Where accused intentionally drove his tractor in such a manner that it ran over the deceased causing his death. Evidence sufficiently proved the guilt of the accused and it was held and the accused would be liable under section 302 not of under section 304-A.

8

22.Here in this case the prosecution alleges that due to the negligence of the accused deceased died but no witness stated negligence of the accused. The PW1 who is the eye witness to the case simply testifies that he along with deceased while doing work, deceased saree was caught hold by the mixture due to that she fell down and received injuries. On perusal of evidence, it clears that the saree of the deceased was caught hold by the mixture and due to that deceased died.

23. PW2 testifies that he was called by Narasannapeta police to to act as mediator. He further testifies that he along with one M.Subbinaidu went to the Police station, there police taken them to the accident place , his signature is exhibited as Ex.P3 on Scene Observation Report. During the course of cross examination he admitted he doesn't know the content of the Report.

24.On perusal of the evidences of prosecution witnesses, it reveals that no witness stated that the negligence of accused at the time of construction of building. The section applies only to such acts which are rash and negligent and or directly the cause of death of another person. In other words, a rash act is primarily an over hasty act as opposed to a deliberate act but done without due care and caution. Intentionally or knowingly inflicted violence directly of wilfully caused is excluded u/sec.

304-A IPC in other words, the said section does not apply to a case in which there has been voluntary commission of an offence against a person.

Thus, where bodily injury is intentionally inflicted and the victim dies , the 9 offence will be one of simple or grievous hurt if the intention or knowledge which is an ingredient of culpable homicide is wanton. This section does not apply to a case in which there has been the voluntary commission of an offence against the person.

25.The standard of proof in criminal cases is not the same as in the civil. Importantly, in criminal cases the burden of proving the guilt of an accused is upon the prosecution. It must standard by itself. Essentially accused need not establish his case beyond all reasonable doubt. Of course, in some cases where the burden of proof relating to a fact in issue in a case is on the accused, the standard of proof required of him is not the same as is required from the prosecution. This proposition of law is no more res-integra. Upon such proof as is adduced, if there is a real and reasonable doubt as to his guilt, the accused is entitled to the benefit of doubt. The law always requires that the conviction should be certain and not doubtful. If the evidence on record establishes the truth of the charge and satisfies the reason and judgment of the court such evidence must be taken to have proved the charge beyond all reasonable doubt justifying conviction.

26.In order to establish a charge of negligence under section 304-

A IPC it must be established that incident was the direct result of the negligence of the accused. Here in this case no witness stated about the negligence of the accused. Hence, the prosecution failed to prove that accused is responsible for the incident. Except the evidence of 10

Investigating officer, no evidence on record that accused are responsible for the death of the deceased. Further it is not safe to attribute the evidence against the accused basing on the sole evidence of investigating officer without any corroboration either from eye witness or independent witness. Conviction can not be placed on mere assumptions and presumptions. There must be legal evidence to convict accused, and the burden lies on the prosecution to prove guilt of the accused persons with cogent and convincing reasons.

27.The material on record clearly shows that PW.1 gave his report. This court is of opinion merely because the prosecution is able to prove the report at any stretch of imagination, it cannot be said that the report itself established the case of the prosecution. When the content of the report is supported by the maker of the statement, the said report can be taken as corroborative piece of evidence. The evidence of PW1 has been shaken during the course of cross examination. For this reason this court is of opinion that the prosecution not established the guilt of the accused.

There must be legal evidence to convict accused, and the burden lies on the prosecution to prove guilt of the accused persons with cogent and convincing reasons.

28.In the light of above discussion, it is held that prosecution miserably failed to establish the guilt against accused for the offence Under

Sections 304-A of IPC beyond all reasonable doubts.

11

29.Result:-

In the result, the accused A1 is found not guilty for the offence under section 304-A of IPC and he is acquitted U/s 255(1) Cr.P.C.

The bail bonds of the accused and that of his sureties shall stands canceled.

Directly typed to my dictation corrected and pronounced by me in open court on this the 3rd day of April, 2017.

JUDICIAL MAGISTRATE OF I CLASS

NARASANNAPETA.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence:

PW.1 Neelam Salayya, NIL PW.2 Tarra Govindarao, PW.3 Korlana Chakradarudu, PW.4 Dr. H.Arunakumari, PW.5 B.Nagabusanarao, ASI, PW.6 N.Lakshmana, S.I of Police

Exhibits Marked

For Prosecution:

Ex.P1: Report given to police dt. 12-5-2015 Ex.P2: sec.161 CrPC statement dt.13-5-2015 Ex.P3: signature on the scene observation report dt.13-5-2015 Ex.P4: signature on the inquest report dt.13-5-2015 Ex.P5: post mortem report dt.13-5-2015 Ex.P6: First information report dt.12-5-2015 Ex.P7: Altered First information report dt.13-5-2015 Ex.P8: scene observation report dt.13-5-2015 Ex.P9: rough sketch dt.13-5-2015 Ex.P10: inquest report dt.13-5-2015 For Defence: - Nil. MATERIAL OBJECTS: -NIL.

JUDICIAL MAGISTRATE OF I CLASS,

NARASANNAPETA.

In the result the suit is decreed with costs granting a decree for recovery of RS.30780 with interest at the rate of 12 percent per annum from t he date of the suit to till the date of decree and future interest at the rate of 6 percent per annum on the principal adjudged amount till the date of realization from the defendant.

In the result the suit is decreed with costs granting a decree for recovery of Rs.76,975 with interest at the rate of 12 percent per annum from the date of the suit to till the date of decree and future interest at the rate of 6 percent per annum on the principal adjudged amount till the date of realization from the defendant

The accused is found not guilty for the offence under sections 498-A of

Indian Penal Code and they are acquitted U/s 248 (1) Criminal Procedure

Code . The bail bonds of accused and that of their sureties shall stands canceled. The MO1 Bamboo stick shall be destroyed after lapse of appeal time.

Sd/ XXXXX Judl. Magistrate of I Class, Narasannapeta.