CC 120/2013 1
IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS,
Spl.Mobile Court, Anantapuramu
Present:- Smt.A.Geetha Vani,
Spl. Judl. Ist Class Magistrate, Proh. & Excise Cases, Anantapuramu.
FAC/Spl.Mobile Court
Monday, this the 23rd day of November, 2015
C.C.120/2013
BETWEEN.
State Rep. by Sub Inspector of Police, Traffic Police Station, Anantapuramu.
........... COMPLAINANT.
AND
S.Basha, aged 36 Years, S/o.S.Dasthagiri Sab, R/o.D.no.13/3/719, Khaja Nagar, Anantapur. Driver of APE Auto bearing No.AP-02-TA-0105.
......... ACCUSED.
This case is coming on this day for final hearing before me in the presence of A.P.P for the State and Sri.M.Narayana Swamy Advocate for the accused, and upon hearing both sides and having perused the material on record, this court delivered the following: :: JUDGEMENT ::
Case is U/Sec. 338 IPC, Sec.134 (a) & (b) of M.V.Act.
1]The Sub Inspector of Police, Traffic Police Station, Anantapuramu has laid charge sheet against the accused in Cr.No.55/2012 for the offence punishable under section 338 Indian Penal Code, section 134 (a) (b) Motor
Vehicle Act.
2]The contents of the charge sheet is as follows :
Defacto complainant K.Manisha is the resident of R.K.Nagar,
Anantapuramu. On 02-08-2012 morning defacto complainant K.Manisha and
K.Sridhar went to Dharmavaram on motor cycle bearing No.AP-21-G-6983 to tie Raakhi to K.Sridhar's brother-in-law. On the same day evening at about 4:00 pm both of them left Dharmavaram on motorcycle to Anantapur. At about 5:30 pm at Anantapur while they were proceeding at Sri Satya Sai Junior
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College for girls on Anantapur-Dharmavaram road, the accused S.Basha being driver of Ape auto bearing No.AP-02-TA-0105 was coming from Anantapur Town side by driving in a rash and negligent manner with high speed and dashed against the motor cycle, resulting which the complainant K.Manisha and
K.Sridhar fell down and sustained injuries. Dudekula Vannurvali witnessed the same and rushed to the injured and injured were shifted to YSR hospital,
Anantapur in 108 ambulance van for treatment. Accused stopped his auto and fled away.
Basing on the complaint of K.Manisha, V.B.Williams Sub Inspector of Police registered a case in Cr.No.55/2012 u/s.337 Indian Penal Code and visited scene of offence and drawn a rough sketch and drafted police proceedings about the damages of vehicle of K.Sridhar.
On 13-08-2012 V.B.Williams Sub Inspector of Police arrested the accused on sent to judicial custody and obtained wound certificates of the injured as injury No.2 sustained by K.Sridhar as grievous in nature.
Further after the incident the accused failed to provide medical aid to the injured and failed to inform the same in nearby police station. Hence
Charge sheet is filed against accused for the offence punishable u/s.338 Indian
Penal Code, Section 134 (a) and (b) Motor Vehicle Act.
3]The cognizance was taken by the Hon'ble Addl. Judicial First Class
Magistrate, Anantapuramu against the accused for the offence under section
338 Indian Penal Code, 134 (a) & (b) r/w 187 Motor Vehicle Act and numbered as CC.971/2012 and issued summons to the accused.
4]On appearance of the accused all relevant case records were furnished to him, as required under section 207 of Cr.PC.
5] During the course of examination as per orders of Hon'ble District & Sessions Judge, Anantapuramu the case was transfered to this court and re-numbered as C.C.120/2013.
6]The accused was examined under section 251 Cr.P.C.
for the offence punishable under section 338 Indian Penal Code, section 134 (a) and (b) Motor Vehicle Act by explaining the substance of accusation
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leveled against him, for which he denied the same and pleaded not guilty and claimed to be tried according to law.
7]During the course of Trial, the Prosecution examined all the witnesses as PW1 to PW6 and got marked Exs.P1 to P7 on its behalf.
8]After closure of prosecution evidence, the accused was examined under section 313 Cr.P.C as there is incriminating material found against him from the evidence of Prosecution Witnesses and read over and explained the contents to him in Telugu for which he denied the same and reported no defence evidence.
9]On defense side, no one examined and no documents marked.
10] Heard arguments. 11]Now the point for determination is : 1 Whether the accused S.Basha drove the crime vehicle APE Auto bearing No.AP-02-TA-0105 in a rash or negligent manner at high speed, as a result, K.Manisha and K.Sridhar sustained grievous injuries or not ?
2 Whether the Prosecution proved the guilty of the accused under section 338 Indian Penal Code, section 134 (a) and (b) Motor Vehicle Act beyond all reasonable doubts ?
POINTS 1 and 2 :
12] The learned Asst. Public Prosecutor argued that PW1 and PW2 are injured cum eye-witnesses to the incident, they supported the case of the
Prosecution. PW3 and PW4 are the eye-witnesses unfortunately did not support the case of the Prosecution. PW5 is the doctor who treated PW1 and PW2 and issued wound certificates under Ex.P4 and P5. PW6 Investigating Officer supported the case of the Prosecution. Hence prayed to convict the accused.
On the other hand the learned counsel for the accused argued that there is inordinate delay in lodging the report to the police. The delay is not properly explained by the Investigating agency. Due to rash and negligent driving of PW2, he himself dashed against auto which was stationed towards left side of the road, as a result, PW2 and PW1 fell down and sustained injuries on their own and there is no negligence on the part of the accused. Further
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PW1 and PW2 did not mention in their report Ex.P1 and did not state in their 161 Cr.P.C statement about the identity particulars of the accused. Further it is said to that PW2 sustained grievous injuries but the Prosecution did not file any
X-ray report to substantiate the same. Hence prayed to acquit the accused.
13]The Prosecution to establish the case adduced the evidence of all the listed witnesses as PW1 to PW6 and got marked Exs.P1 to P7 on its behalf.
Prosecution examined defacto complainant K.Manisha as PW1. PW1 K.Manisha deposed that on 2-8-2012 at about 4:30 pm herself and her husband PW2 left
Dharmavaram on their motorbike and at 5:30 pm when they were proceeding at Satya Sai Junior college situated at Anantapuramu-Dharmavaram road, one auto bearing No.AP-02-TA-0105 came in opposite direction in a rash and negligent manner with high speed and dashed against their motorcycle, as a result they both fell down along with the motor bike. She sustained minor dumb injuries and PW2 sustained fracture injury on his left leg from knee portion to thigh portion. PW2 also sustained bleeding injury above the left eye.
PW3 who was present there witnessed the incident, PW3 and some others came to them and called 108 ambulance and shifted them to YSR hospital,
Anantapuramu. PW1 deposed that as her husband sustained grievous injuries she was taking care of him, she gave a police report on 07-08-2012. She deposed that she can identify the accused.
In the cross examination PW1 deposed that at the time of accident it was raining lightly. There were no vehicles in front of their vehicle. She has no idea whether any vehicle was coming in the opposite direction. They fell down towards left side of the road. She denied that they were going at a high speed. She mentioned name of PW3 in the complaint as well as in his statement. She denied that she has not mentioned the identity particulars of the driver in her complaint as well as in her statement. She has no prior acquaintance with the accused. She denied that while driving the vehicle her husband without observing dashed against auto which was stationed. She denied that in order to claim the insurance she has filed this present case.
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14]PW2 K.Sridhar deposed that on 2-8-2012 at about 4:30 pm himself along with PW1 left Dharmavaram on their motor bike AP -21 G 6983 at about 5:30 pm when they were proceeding at Satyasai Junior college situated at Anantapuram - Dharmavaram road, one auto bearing No.AP 02 TA 0105 came in their opposite direction in a rash and negligent manner with high speed and dashed against their motorcycle, as a result, they both fell down along with their motor bike. PW1 sustained minor dumb injury on her left hand and left leg from knee portion to thigh portion. He sustained bleeding injury above the left eye. PW3 who was present there witnessed the incident along with some others and came to them and called 108 ambulance and shifted them to YSR hospital
Anantapuramu. He deposed that he can identify the accused.
In the cross examination PW2 deposed that at the time of accident it was raining lightly. He has mentioned the name of Vali in his statement.
He has mentioned the identity particulars of the accused in his statement. He has not stated specifically regarding the damage of the vehicle in his statement. He denied that the auto was stationed left side of the road with indications and he further denied that he was driving the vehicle at a high speed and due to his negligence the accident occurred. He further denied that in order to claim the insurance only, he filed the present case, after a lapse of five days.
15] PW3 D.Vannur Vali deposed that he does not know PW1 and PW2.
He does not know the accused who was present in the court hall.
16] PW4 Nagendra deposed that he does not know PW1 and PW2. He does not know the accused who was present in the court hall.
17]PW5 Dr.K.Mohan Reddy deposed that on 02-08-2012 at 6:30 pm he examined PW1 and found Abrasion injuries on left elbow and opined that the above said injury is simple in nature and accordingly he issued wound certificate as Ex.P4. On the same day he also examined PW2 and found
Segmental commimum fracture sharp femur left side, Lacerated injury on the left side of forehead and he opined that first injury of PW2 is grievous in nature and second injury is simple in nature and accordingly he issued wound
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certificate as Ex.P5.
In the cross examination he deposed that he does not remember whether he informed to police, as it is road traffic accident case. He deposed that in case of grievous injury X-ray report will be obtained. In Ex.P4 and P5 it is not mentioned that X-ray report was obtained. Age and colour of injury is not mentioned in Ex.P4 and Ex.P5. He added that as it a fractured injury age and colour is not required.
18]PW6 V.B.Williams deposed that previously he worked as Sub
Inspector of Police, Traffic Police Station, Anantapuramu. On 07-08-2012 at 5:30 pm while he was present in the Police Station, PW1 present a written report, basing on that he registered a case and issued FIR Ex.P6 and examined
PW1 in Police Station itself. Then he proceeded to YSR hospital Anantapuramu along with PW1 and examined PW2 who was admitted in the hospital. From there he visited scene of offence and prepared the rough sketch of the same.
Ex.P7 and there he secured PW3 and examined him and recorded his statement. Then himself and PW1 proceeded to Bose Mechanic shop and examined Scooter of injured persons PW1 and PW2 and noted the damages of vehicles. On 13-08-2012 at 11:30 am PW4 produced accused along with records of crime vehicle. On enquiry he arrested the accused and produced him
before the court for remand. During the course of investigation, he obtained
wound certificate of PW1 and PW2 and after completion of investigation he filed charge sheet u/s.338 Indian Penal Code and section 134 (a) and (b) of Motor
Vehicle Act.
In cross examination of PW6 he admitted that the date of accident is 02-08-2012 at 5:30 pm and the date of report is 07-08-2012 at 12:30 pm and up to presentation of report he did not receive any Medical Admit intimation from the hospital. Further PW6 admitted that in Ex.P1 the descriptive particulars of the accused are not there and only auto number is there. Further he admitted that PW1 to PW3 did not state before him with regard to name, address and identity particulars of the accused. Further deposed that accident took place at left side road and as per his investigation
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there was no damage to crime vehicle and he did not prepare any proceedings in this regard. PW6 admitted that he did not prepare any scene observation mahazar in this case and deposed that he does not know whether on the date of accident it was raining and without observing the auto which was parked by the left side of the road PW1 dashed the auto from backside and sustained injuries.
On perusal of evidences of PW1 to PW6, PW1 and PW2 are said to be injured cum eye-witnesses to the alleged incident admittedly they have given police report on 07/08/2012 at 12:30 pm and as per their evidences the incident occurred 02/08/2012 at 4:30 pm. The explanation given by PW1 for lodging report to police on 07/08/2012 is that as she was looking after the welfare of her husband PW2 who sustained grievous injuries she could not lodge police report immediately after the incident. On perusal of the FIR Ex.P6 the delay in column No.8 is mentioned as "complainant looked after the welfare of her husband ie., injured at private hospital, today she came to Police Station and lodged a complaint", hence delay. On perusal of evidence of PW5
Dr.K.Mohan Reddy who is doctor of MS. Ortho, YSR Memorial Hospital,
Anantapuramu in Ex.P4 and P5 admitted that it is a Road Traffic Accident and he did not send medical admit intimation to a nearby police station. Admittedly as there is a delay of 5 days, this court opines that there is inordinate delay in lodging the report. Though PW1 deposed that she was taking care of her husband, she would have taken steps to lodge a report to police. In this regard, this court relied upon the Judgment of Hon'ble Apex Court :
Thulia Kali ...Petitioner
Vs
The State of Tamil Nadu ...Respondent
on 25th February, 1972
Equivalent citations : 1973 AIR 501, 1972 SCC (3) 393
Citation info : D 1983 SC 1081 (18)
CITATION INFO : 1983 SC 1081 (18) ACT : Criminal Trial ---First Information
Report--Thulia Kali Vs State of Tamil Nadu on 25th February 1972 ---- Delay in
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lodging the FIR quite often results in embellishment which is a creature of after though. On account of delay the report not only gets the benefit the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is therefore essential that the delay in lodging of the FIR should be satisfactorily explained-----
In the present case also there is no satisfactory explanation with regard to delay in lodging FIR.
Further on perusal of the evidences of PW1 and PW2, they deposed in their chief examinations that they can identify the driver of the auto who caused accident. On perusal of Ex.P1 and 161 Cr.P.C statement of PW1 and
PW2 they did not mention the identity particulars of the accused in their respective statements. That the identification of the accused before the court for the first time is a weak piece of evidence. At this juncture this court relied upon the decision.
2010 (3) ALT (Crl.) 169 (A.P)
IN THE HIGH COURT OF JUDICATURE,
ANDHRA PRADESH AT HYDERABAD
B.CHANDRA KUMAR, J.
Criminal Revision Case No.1816 of 2004 - Decided on 01-07-2010
K.Rajaiah V.
State of A.P. rep by Public Prosecutor
On perusal of the above citation in Para No.18 the hon'ble High Court referred a Judgment of Apex Court ie., the case between
State of Maharastra through CBI
VS
Sukh dev Singh @ Sukha (5) AIR 1992 Vol. 3 SCC 700
"It would be extremely risky to place implicit reliance on identification made for the first time in court after a long lapse of time but it has to be kept in mind that this principle will apply to case of total strangers".
In the present case also PW1 and PW2 are total strangers with the case and they did not mention either in Ex.P1 or in 161 Cr.P.C statement about the identity particulars of the accused but they deposed that they identify the accused in the court hall.
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Further on perusal of evidence of PW5 Dr.K.Mohan Reddy who noted a fractured injury of PW2 but there is no X-ray report in this regard. It is the duty of the Investigating Officer to collect the documents which are related to prove the offence but in the present case Investigating agency failed to collect the X-ray report.
As per section 338 of Indian Penal Code :
Causing grievous hurt by act endangering life or personal
safety of others:- “Whoever causes grievous hurt to any person by doing any
act so rashly or negligently as to endanger human life, or the
personal safety of others, shall be punished with imprisonment
of either description for a term which may extend to two years,
or with fine which may extent to one thousand rupees, or with
both”.
19] As per Sec 338 Indian Penal Code, Prosecution has to prove that on the date of alleged accident, the accused drove the crime vehicle in a rash or negligent manner, at high speed, as a result, PW1 and PW2 sustained simple and grievous injuries. In order to prove the same the Prosecution adduced the evidence of six witnesses as PW1 to PW6. PW1 and PW2 are wife and husband who are said to be injured cum eye-witnesses to the alleged incident. PW1 and
PW2 deposed that the crime vehicle came in the their opposite direction in high speed in a rash and negligent manner and dashed their motor cycle as a result both of them fell down and sustained injuries and PW3 who was present there witnessed the incident and PW3 and some others went to them and called 108 ambulance and shifted them to YSR hospital, Anantapuramu, but PW3 who is said to be eye-witness to the alleged incident did not corroborate with PW1 and
PW2 and did not support the Prosecution version. Hence this court is of the opinion that the Prosecution failed to prove either rash or negligent manner of driving by the accused and also failed to prove that the accused only drove the crime vehicle at the time of accident. Hence benefit of doubt goes to the accused.
20]In view of the above discussion, this court is of the opinion that the Prosecution failed to prove the case beyond all reasonable doubts. Hence
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accused is entitled for acquittal. Accordingly points for determination are answered.
21] In the result, the accused is found not guilty for the offence punishable under section 338 Indian Penal Code, section 134 (a) and (b) Motor Vehicle Act and the accused is acquitted U/S 255(1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as required under section 437 A of Cr.P.C. The unmarked case property, if any, shall be destroyed after appeal time is over. [Typed by Personal Assistant to my dictation, corrected and
pronounced by me in open court, this the 23rd day of November, 2015].
Spl.Judl.Magistrate Ist Class, Proh & Excise Cases, FAC/Spl.Mobile Court. Anantapuramu.
Appendix of Evidence Witnesses Examined
Prosecution Defence
PW1: K.Manisha.Nil PW2: K.Sridhar. PW3: Dudekula Vannurvali. PW4: Sake Nagendra. PW5: Dr.Kethi Reddy Mohan Reddy. PW6: V.B.Williams Sub Inspector of Police.
Exhibits marked for
Prosecution. Defence
Ex.P1:Complaint of PW1. Nil Ex.P2:161 Cr.P.C statement of PW3. Ex.P3:161 Cr.P.C statement of PW4. Ex.P4:Wound certificate of PW1. Ex.P5:Wound certificate of PW2. Ex.P6:First Information Report. Ex.P7:Rough Sketch of scene of offence. M.Os marked on behalf of
Prosecution Defence
Nil Nil
Spl.JFCM, FAC/Spl.Mobile Court
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CALENDAR AND JUDGMENT IN
C.C.NO.120/2013
Dates of
Offence Report of Apprehension Released on Commen Close of Sentence Complaint of accused bail cement of trial or trial Order 02/08/1207/08/1213/08/1213/08/1219/06/1406/10/1523/11/15
Calander and Judgment in C.C.255/2013 on the file of FAC/Judl. Magistrate of First Class, Spl.Mobile Court, Anantapuramu. Spl.Judicial Magistrate of First Class, Anantapuramu.
Complainant : Sub Inspector of Police, Traffic Police Station, Anantapuramu District. Cr.No.:55/2012.
S.No. Name of the Father’s Name Age Calling Religion Residence accused 01S.Basha S.Dasthagiri Sab36 Driver Hindur/o.D.No.13/3/719, Years Khaja Nagar, Anantapur.
Offence : under section 338 Indian Penal Code, section 134 (a) and (b) Motor Vehicle Act
Finding : Found not guilty.
Sentence : Judgment pronounced (VSJ). In the result, the accused is found not guilty for the offence punishable under section 338 Indian Penal Code, section 134 (a) and (b) Motor Vehicle Act and the accused is acquitted U/S 255(1) Cr.P.C. The bail bonds of the accused shall be in force for a period of six months as required under section 437 A of Cr.P.C. The unmarked case property, if any, shall be destroyed after appeal time is over.
Spl.Judl.Magistrate of Ist Class, Proh. & Excise Cases, FAC/Spl.Mobile Court, Anantapuramu.
To
The Hon'ble Ist Addl.District & Sessions Judge, Anantapuramu, The Superintendent of Police, Anantapuramu.