Judgment:
ORDER
1. The instant appeal is preferred by the State to challenge the judgment dated 19-12-1991 in CC No. 3069 of 1988 passed by the I Addl. Chief Metropolitan Magistrate, Bangalore City, whereby he had acquitted the respondent.
2. This Court had appointed one Sri A. S. Bellary, learned Advocate as Amicus Curiae to represent the respondent in the above appeal as he had remained absent in spite of service of notice on him.
3. I heard the learned Government Pleader, Sri G. M. Sreenivasa Reddy appearing for the appellant-State and Sri A. S. Bellary, Advocate/Amicus Curiae appearing for the respondent.
4. The facts in brief of the case are as follows :
That on 25-12-1986 at about 6-40 p.m. the respondent being the driver of military truck bearing Registration No. 84D 55011 N driven the same after consuming alcohol and while he was driving on the road near Jayamahal Extention leading to M. R. Palya, he dashed against a Suvega bearing Registration No. MEA 6842 from behind and as a result of which the rider of the said Suvega by name, Venkatappa, suffered fatal injuries and that later the respondent had driven the said military truck further and further dashed against an autorickshaw bearing Registration No. CAK 1400 damaging the said autorickshaw. The same was parked near the bus-stand by its driver by name, Vijay kumar, P.W. 4 and that the respondent further drew his vehicle upto Mekhri Circle where he again dashed against the grill near the Mekhri Circle and further as against a wall. It is alleged that the respondent had driven the military truck in a rash and negligent manner having driven the same in an uncontrolled and zig-zag manner. Therefore, the jurisdictional police at J.C. Nagar P.S. had filed a charge-sheet as against the respondent for the offence under Ss. 279, 337, 304-A of IPC and further for the offence under S. 117 of the Motor Vehicles Act before the Addl. Chief Metropolitan Magistrate (hereinafter referred to for convenience as 'CMM Bangalore City').
5. In order to prove the guilt of the respondent, the prosecution had examined in all six witnesses and got marked 5 documents they are Ex. PI-Complaint, Ex. P2-Inquest, Ex. P3 IMV report, Ex. P4-Mahazar and Ex. P5-Accident Sketch. The learned CMM Bangalore City after holding an enquiry and on appreciation of evidence on record acquitted the respondent in passing the impugned judgment and it is as against the same the appellant-State had preferred the instant appeal to challenge the same.
6. The learned Government Pleader while urging the grounds in the appeal memorandum argued that the impugned judgment recording the acquittal of the respondent is contrary to the evidence on record both oral and documentary and, therefore, he prayed that the impugned judgment passed by the CMM Bangalore City is erroneous and is called for to be interfered with in the instant appeal. While taking me through the evidence of P.W. 2, the learned Government Pleader pointed out that P.W. 2 being an autorickshaw driver followed the military truck driven by the respondent in a zig-zag manner on the road at Jayamahal Extention leading to MR Palya. He further pointed out that P.W. 2 had deposed that he was an eye-witness for dashing of the said military truck driven by the respondent as against moped bearing Registration No. 6842 causing the fall of the rider and that because of the impact, the rider of the Suvega had fallen down from his vehicle and got stuck himself beneath the rear left side wheel of the military truck. He had also deposed that the military truck was driven in an uncontrolled way all through. Sri Reddy further pointed out that P.W. 2 had given a graphic account as to how the respondent had thereafter dashed against an autorickshaw bearing Registration No. CAK 1400 and further driven his vehicle without being stopped any where till he hit the grill and the compound wall at Mekhri Circle. Sri Reddy further submitted that P.W. 2 was also accompanied by P.W. 4, Vijaykumar, the driver of the auto No. CAK 1400 which was hit by the respondent as stated above to reach Mekhri Circle by following the military truck of the respondent and both of them had seen the truck of the respondent hitting the grill at Mekhri Circle and further dashing against the compound wall. Sri Reddy further pointed out P.Ws. 2 and 4 who had seen the respondent fully drunk and that it is they who held the respondent and taken him to the J. C. Nagar P.S. Sri Reddy argued that even P.W. 4 the driver of the other auto had also supported the case of the prosecution as he had clearly deposed that the respondent had dashed against his auto bearing Registration No. CAK 1400 that was parked near the bus stand and it is thereafter he joined P.W. 2 and chased the truck of the respondent in auto of P.W. 2. He further argued that there was no reason why P.Ws. 2 and 4 had to depose as against the respondent to implicate him falsely if he was not guilty of the offence charged against him. While taking me through the impugned judgment, the learned Government Pleader further argued that when the prosecution had proved the guilt of the accused beyond reasonable doubt there was no reason for the learned CMM Bangalore City to acquit the respondent in passing the impugned judgment, just because there was no medical evidence to corroborate the evidence of P.Ws. 2 and 4. Therefore, he prayed that the impugned judgment passed by the learned CMM Bangalore City be set aside and the respondent be punished in accordance with law.
7. The learned Amicus Curiae, Sri A. S. Bellary had strenuously argued that P.W. 2 was not a truthful witness to be believed. According to him this witness appeared to be interested witness only to implicate the respondent falsely and it is for that reason he had deposed what he had not stated before the Police according to his own evidence. He had drawn my attention to the evidence of P.W. 2 that in his statement before the Police he did not state that the military truck was driven by the respondent in zig-zag manner and he did not say in his statement before Police that the military truck had overtaken him at a particular point. He further argued that neither P.W. 2 nor P.W. 4 have deposed that the respondent had driven his vehicle in a rash and negligent manner. Yet another point he had canvassed before me, is that according to the case of the prosecution P.W. 4, the driver of the other auto bearing Registration No. CAK 1400 was injured, whereas in the evidence of P.W. 4 he had deposed that he was not at all injured. Sri Bellary further argued that the prosecution did not choose to examine the Doctor to prove that the rider of the moped bearing Registration No. MEA 6842 had suffered fatal injuries in the road accident and he succumbed to the said injuries. According to him when the prosecution did not choose to examine a material witness as that of the Doctor, adverse inference against the prosecution had to be drawn under Section 114 of the Evidence Act. Such an argument was advanced by Sri Bellary for the reason that the prosecution did not get the post-mortem report marked in the evidence by the medical officer, who had performed post-mortem and further issued the post-mortem report. According to Sri Bellary nothing prevented the prosecution to examine some other person to identify the post-mortem report issued by the concerned medical officer, even if it was the case that the concerned Medical Officer was not available for getting it marked. He further pointed out that for the reasons best known to the prosecution, they have not examined even the I.O. in the case. Therefore, Sri Bellary submitted that the prosecution had miserably failed to prove the guilt of the accused and in such a circumstance it was right on the part of the learned CMM Bangalore City to acquit the respondent. Therefore he prayed that the appeal be dismissed.
8. Now the point for my consideration is whether there is material evidence on record to hold that the respondent was guilty of the offence charged against him. To advert to the charge against the respondent, it is to be observed here that the respondent was charged against an offence under Sections 279, 337 and 304-A of IPC read with Section 117 of the Motor Vehicles Act. In support of the case of the prosecution, the prosecution had examined in all five witnesses. Out of the said five witnesses, it appears to me that P.Ws. 2, 4 and 5 are the material witnesses. P.W. 2 had clearly deposed that he was an autorickshaw driver bearing Registration No. MEV 2966 and while he was driving his auto at about 6.45 p.m. on 25-12-1986 he was going on the road at Jayamahal Extension and that on that day he started from Shivajinagar to go to M. R. Palya with passengers in his auto and that when he was so going on Jayamahal Road, he had seen the Military truck driven by the respondent in uncontrolled manner and in zig-zag way and that he had seen the military truck driven by the respondent hitting the moped bearing Registration No. MEA 6842 and because of that impact the rider of the said moped fallen down and he got stuck to the rear left wheel of the military truck. He further deposed that the respondent did not stop his vehicle but driven further and further hit an auto of P.W. 4 bearing Registration No. CAK 1400 and that the respondent once again did not stop his vehicle even at that point but driven it further towards Mekhri Circle and that P.W. 2 took with him the driver of the other auto by name Vijaykumar, examined as P.W. 4 and it is they both who chased the military truck driven by the respondent and when they reached the Mekhri Circle they had seen the respondent dashing against the grill and further the compound wall at Mekhri Circle. By going through the evidence of P.Ws. 2 and 4, I am impressed to hold that there is ring of truth in the evidence of these witnesses that the respondent had driven his military truck in a rash and negligent manner. The learned Amicus Curiae appearing for the respondent had taken pains to convince me that neither P.W. 2 nor P.W. 4 had spoken with regard to the rash and negligent manner of driving of the military truck by the respondent and according to him that was sufficient to hold that the respondent was not guilty of the charge against him. The said argument of the learned Amicus Curiae is difficult for me to appreciate in view of the fact that there is evidence of yet another witness, P.W. 5 who is the Motor Vehicles Inspector. In his evidence, P.W. 5 had deposed that at about 10.45 a.m. on 27-12-1986 he had inspected Luggage Lorry No. 84 D 55011, an autorickshaw No. CAK 1400 and Suvega bearing Registration No. MEA 6842 parked at the jurisdictional police station and he found on his inspection the following damages in the above three vehicles :
1) With reference to lorry :
a) Both end-parts and the middle part of the bumper were damaged.
b) Both mudguards were damaged and came out.
2) With reference to autorickshaw No. CAK 1400 :
a) The rear tail lamp on the right side was damaged. 3) With reference to moped No. 6842 : a) The front head-light glass and left handle grip and peddle grip were damaged as if they were rubbed.
He further deposed that on trial of all the above three vehicles on the road, the brake system of the vehicles were found well-in-order by him. He further opined that the accident had not taken place not because of the mechanical failure or the defects in the vehicles.
9. It is to be noted here that the said evidence of the Motor Vehicle Inspector, P.W. 5 was not at all challenged by the respondent since he didn't choose to cross-examine the said witness.
10. The further argument of the learned Amicus Curiae is that there is no evidence to hold that the respondent was guilty of the offence under Section 304-A, for causing the death of the rider of the moped in view of the fact that the post-mortem report was not marked by the prosecution by examining the concerned Medical Officer to prove that the death of the rider of the moped was because of the injury suffered by him in the road accident. I find some force in the said argument of the learned Amicus Curiae that there is no medical evidence to show that the moped rider died because of the injuries suffered by him in the accident. But, nevertheless in my considered view there is sufficient material to hold that the respondent was guilty of the offence under Section 279 for rash and negligent manner of driving of his military truck on the relevant point of time when he was driving his military truck on Jayamahal Road. It is in the evidence of P.Ws. 2 and 4 that the respondent had driven his military truck in uncontrolled way and he did not stop his vehicle in spite of the fact that he hit the moped at the first instance and again at the second to the auto CAK 1400 of P.W. 4. I should point out here that both P.Ws. 2 and 4 being the auto drivers had deposed in their own way as to how the respondent had driven his military truck on the relevant point of time causing the accident on three different points as stated above. No doubt P.Ws. 2 and 4 did not say in so many words that the respondent did drive his military truck in a rash and negligent manner. But, they did depose as to the manner in which the respondent had driven his vehicle on the fateful day. In the said circumstances, it appears to me that it is for the Court to appreciate whether the respondent in fact was driving his vehicle in a rash and negligent manner or not. The evidence given by P.Ws. 2 and 4 reposes confidence in me to hold that the respondent did drive his military truck in a rash and negligent manner or otherwise there was no reason for him to drive the vehicle in an uncontrolled way causing accidents in three different points consecutively. As pointed out, by the learned Government Pleader, I do not find any good reason why P.Ws. 2 and 4 being the drivers as that of the respondent should give false evidence to implicate falsely the respondent, on the other hand, I would rather see a situation of P.Ws. 2 and 4 supporting the respondent, for all the three of them fall in one category, 'Drivers'. But P.WS. 2 and 4 did not do that. In my view it cannot be reason. Therefore, it appears to me that P.Ws. 2 and 4 had given their evidence in a very natural way because they found the respondent guilty of rash and negligent manner of driving causing accidents at the first instance, to the moped and at the second to the auto of P.W. 4 and at the third to the grill and the compound wall at the Mekhri Circle, let apart it is a case of drunken-driving as deposed to by P.Ws. 2 and 4.
11. All the more, we have got the corroboration of the evidence of P.W. 2 and P.W. 4 in the evidence of P.W. 5, the Motor Vehicles Inspector as discussed above. In view of the fact that the prosecution had failed to prove that the rider of the moped had suffered the fatal injury due to the accident and further that the prosecution had failed to prove that P.W. 4 had suffered the injuries and further that the prosecution had not examined the Doctor to show that the respondent at the relevant point of time driving the vehicle, was drunk, I hold that the material evidence on record is not sufficient to hold that the respondent was guilty of offence under Sections 337, 304-A of IPC and under Section 117 of the Motor Vehicles Act, nevertheless, I hold that there is overwhelming evidence on record to prove that the respondent is guilty of the offence punishable under Section 279 of IPC as he had driven his military truck in a rash and negligent manner and it is because of that act he caused three accidents at three different points as stated above. The respondent being a military personnel would have been rule minded and in the instant case it appears to me that he was totally careless and callous in his duty to drive his military truck with care and caution required of him. Therefore, it appears to me that he should be punished for the offence under Section 279 of IPC without there being any, mercy shown to him. He appears to be a dare-devil, he did not care to appear before this Court even when notice of the instant appeal was served on him, I don't rule out that he is emboldened by the impugned judgment whereby he is acquitted of all the charges against him. I am conscious enough that the appellate Court should be slow in reversing the judgment of the trial Court recording acquittal as against the accused. I have given best of my thought to it, but when there are sufficient materials available on record and when I find that the impugned judgment passed by the trial Court is not at all based on material evidence on record, I am of considered view that it is just and proper for me to set aside the impugned judgment acquitting the respondent of all the offences charged against him. As a matter of fact, in the impugned judgment the learned CMM Bangalore City had gone to the extent of observing therein that if the evidence of those witnesses who were not secured by the prosecution had been available to the Court, there could not have been any chance for the accused to escape conviction. Such an observation was made by the learned CMM Bangalore City for the reason that he was holding that corroboration of the medical evidence is a must for recording conviction as against the respondent. I do understand that for want of medical evidence the respondent cannot be held guilty particularly for the offence under Sections 337 and 304-A of IPC and further offence under Section 117 of M.V. Act, nevertheless just because the medical evidence is not available, it does not mean that the respondent can go scot free if there are other evidence to hold him guilty particularly for the offence under Section 279 of IPC as observed by me as above.
12. In that view of the matter, I am but to set aside the impugned judgment of the learned CMM Bangalore City in acquitting the respondent of all the offences charged, for I hold that the respondent is guilty of the offence under section 279 of IPC, accordingly I convict the respondent for the said offence under Section 279 of IPC.
13. The punishment for the offence under Section 279 is imprisonment for six months or fine of Rs. 1,000/- or both. In view of the fact that the respondent is totally careless and callous unmindful to rules of driving, even not to stop his vehicle after causing accidents despite he being a member from the disciplined force, I am of the view that he should be awarded the maximum punishment for the above offence he had committed under Section 279 of IPC and, therefore, I convict and sentence him for S.I. for six months and further for the fine of Rs. 1,000/- and in default to pay the said fine he shall suffer further S.I. for two months.
The appeal, therefore, succeeds in part and allowed in part in the above terms.
The fee of Sri A. S. Bellary, the learned Advocate and Amicus Curiae is fixed at Rs. 750/-'
In view of the fact that the respondent is a military personnel, the office is directed to send a copy of this judgment to the Sub-Area Commander, Karnataka and Goa Area, Bangalore-560 001, for his information.
14. Appeal partly allowed.