RAJASHEKAR v. STATE BY R T NAGAR TRAFFIC P.S

referred to by their rank before the trial Court.

3. A complaint came to be filed by one Smt Sagayi Rosary, alleging that on 11.08.2014 night, she and her husband i.e deceased Jayasheelan travelled in train from Madurai to Bengaluru. They reached Bengaluru railway station at 6 a.m of 12.08.2014. In order to go to her daughter's house, they were travelling in auto rickshaw bearing registration No.KA-50–7186. They were 3 CRL.RP NO.1241 OF 2019 proceeding from Jayamahal side towards Mathadahalli of RT Nagar. At around 6.40 a.m, they were near Doordarshan Road. A military truck bearing registration No.03D15 1294K ('military truck' for short) came from RT Nagar side in a rash or negligent manner. In order to go towards the office, the driver of the military truck suddenly took a right turn and dashed against the autorickshaw. As a result of the impact, the auto turned turtle, complainant and her husband fell out of the autorickshaw on the road. The right front tyre of the military truck ran over the head of Jayasheelan and he died on the spot. Complainant also sustained severe injuries. She came to know the name of driver of the military truck as Rajasekhar.

4. Based on the complaint, the concerned police registered the case and took up investigation and charge sheet came to be filed against the driver of the military truck as accused No.1, driver of autorickshaw as accused No.2 and also owner of the autorickshaw as accused No.3. While the allegations against accused Nos.1 and 2 4 CRL.RP NO.1241 OF 2019 are that they were rash or negligent in driving the respective vehicles resulting the accident, allegations against accused No.3 is that the vehicle was not covered by a valid policy of insurance, fitness certificate, as well as he allowed a person having no driving license to drive the autorickshaw.

5. Accused No.3 pleaded guilty to the charges levelled against him and paid the fine.

6. Accused Nos.1 and 2 pleaded not guilty and claimed trial.

7. In order to prove the allegations against accused Nos.1 and 2, prosecution examined in all 13 witnesses as PW-1 to 13 and relied upon Ex.P1 to 15.

8. During the course of their statement, accused Nos.1 and 2 have denied the incriminating evidence.

9. However, they have not led any defence evidence either by stepping into the witness box or examining any witnesses. 5 CRL.RP NO.1241 OF 2019

10. Vide the impugned judgment and order, the trial Court acquitted accused No.2 and convicted accused No.1 and sentenced him as under. "To undergo S.I for a period of one month with fine of Rs.500/-. In default of payment of fine to undergo S.I for a period of one month for the offence p/u/s 279 IPC. To undergo S.I for a period of one year with fine of Rs.10,000/-. In default of payment of fine to undergo S.I for a period of six months for the offence p/u/s 304-A IPC."

11. Accused No.1 challenged his conviction and sentence before Sessions Court Crl.A.No.190/2018. However, it came to be dismissed by upholding the judgment and order of the trial Court.

12. Being aggrieved by the same, accused No.1 is before this Court, contenting that the trial Court as well as the Sessions Court have erred in holding that the allegations against him are proved beyond reasonable doubt. They have failed to appreciate the evidence of PWs-1 and 2 that accused No.1 gave hand signal before 6 CRL.RP NO.1241 OF 2019 taking U-turn and it was accused No.2 who lost control over the autorickshaw and dashed against the military truck. PW-3, who is an independent witness has stated that he could not say at whose fault the accident took place. Both Courts have erred in relying upon the testimony of PW-4, who is the wife of deceased and highly interested witness. She has identified accused No.1 before the Court whereas in statement and complaint, there is no reference of her having identified the driver of the military truck.

12.1 The trial Court has not provided opportunity to accused No.1 to cross-examine PW-4. Due to the inadvertence of the learned counsel for accused No.1, no application was filed for recalling PW-4. The Court below have erred in relying upon the evidence of PW-5, who is an auto driver by profession, who has been pressurized by their association to speak against accused No.1. The Investigating Officer has not collected scraps of dried blood from the spot. Since accused No.2 was not possessing valid driving license, the Courts below have 7 CRL.RP NO.1241 OF 2019 not examined whether he was knowing driving and was responsible for causing the accident. The Sessions Court has not considered citations relied upon by accused No.1. Viewed from any angle, the impugned judgment and order of the trial Court and Sessions Court are not sustainable and pray to allow the petition, acquit accused No.1.

13. In support of his arguments, learned counsel for appellant has relied upon the following decisions: (i) Chandrasegar Vs. Madras(Chandrasegar)1 State (ii) Ladu Kishore Choudhury Vs. State of Orissa (Ladu Kishore Choudhury)2 (iii) K.Srinivas Vs. State of Karnataka (K.Srinivas)3 (iv) Suruvu Parshaiah Vs. State of A.P (Suruvu Parshaiah)4 (v) State of Rajasthan Vs. Bhagwan (Bhagwan)5 (vi) Satish Kumar Vs. State of Haryana (Satish Kumar)6 1 I (1995) CCR 146 2 2000 Crl.L.J.3617 3 2002 Crl.L.J.3865 4 2006 Crl.L.J.824 5 2008 Crl.L.J(NOC).897 (RAJ) 6 2008 Crl.L.J(NOC).598 (P & H) 8 CRL.RP NO.1241 OF 2019

14. On the other hand, the learned High Court Government Pleader supported the judgment and order of both trial Court as well as the Sessions Court and sought for dismissal of the petition.

15. Heard elaborate arguments of both sides and perused the record.

16. Though initially charge sheet was filed against accused Nos.1 and 2, alleging that both were responsible for causing the accident, based on the evidence placed on the record, the trial Court has come to the conclusion that it is accused No.1 alone who was responsible for the accident and acquitted accused No.2. The State has not challenged his acquittal and consequently it has become final. Therefore, what is required to be examine is whether there is sufficient material to connect accused No.1 with the crime in question.

17. It is not in dispute that the military truck bearing registration No.03-D-151294 and autorikshaw bearing registration No.KA-50-7186 are involved in the 9 CRL.RP NO.1241 OF 2019 accident. The evidence placed on record prove the fact that complainant who is examined as PW-4 and her husband i.e., deceased Jayasheelan were travelling in autorikshaw bearing registration No.KA-50-7186. Accused No.2 was the driver of autorickshaw. It is pertinent to note that accused No.1 is an employee of military and at the time of accident he was driving the military truck. For obvious reasons, though PW-1 and 2, who are employees of military have failed to depose that accident was caused due to the rash or negligent driving of the military truck, their evidence prove that accused No.1 was driving the military truck when the accident took place.

18. PW-3 M Narayana is an eye witness to the incident. He is an independent witness not connected either to accused Nos.1 and 2 or to the complainant. He is a Theatre Director. At the time of accident, he was travelling in an autorikshaw. He has deposed that accident occurred due to the rash or negligent driving of military truck. Though he has failed to identify accused 10 CRL.RP NO.1241 OF 2019 No.1 as the driver of the military truck, his evidence proved the fact that accident occurred due to the rash or negligent driving of military truck.

19. PW-4, Sagai Rosary is the injured and witness to the incident. She is the wife of deceased Jayasheelan, who was also travelling along with her autorickshaw. She has clearly deposed that the driver of the military truck drove it in a rash or negligent manner and dashed against the autorickshaw, in which she and her husband were traveling and her husband died at the spot and she sustained grievous injuries. She has specifically stated that the driver of the autorickshaw was driving it in a moderate speed. Though in the complaint, there is no reference to her having seen the driver of the military truck at the spot, but she has stated that she came to know the name of the driver of the military truck as Rajashekhar. Before the Court she has identified accused No.1 as the driver of the military truck. Though this part of her evidence is not taken into consideration, 11 CRL.RP NO.1241 OF 2019 her evidence prove the fact that accident occurred due to the rash or negligence driving of military truck.

20. It is pertinent to note that PW-4 Sagai Rosary is a resident of Madurai. She was examined in chief on

17.05.2016. On that day the learned counsel for accused sought adjournment. Taking into consideration the fact that the complainant is a resident of Madurai and it will be difficult for her to come to give evidence again, the trial Court refused to grant adjournment. Having regard to the fact that the offence are concerning the traffic violation and the learned counsel for accused was aware of the fact that witness is coming from Madurai, he ought to have cross-examined the witness on the same day.

21. Anyhow, though, at the first instance, the trial Court refused to grant adjournment to the learned counsel for accused for cross-examination of PW-4, later on the application filed by learned counsel for accused No.1, on 06.02.2017, the trial Court has recalled PW-4 for cross-examination by accused No.1. On this day also, the learned counsel for accused has sought adjournment. 12 CRL.RP NO.1241 OF 2019 Once again on the ground that the witness is coming from Madurai and there are no justifiable grounds for seeking adjournment, the trial Court refused to grant adjournment and taken the cross-examination of PW-4 as Nil. From the conduct of learned counsel for accused No.1, it is evident that despite being aware of all these facts, he has intentionally not chosen to cross-examine PW-4 and therefore it is not open to the accused No.1 to say that he was not provided with opportunity to cross- examine PW-4.

22. PW-5, Suresh is also an eye witness to the incident. He is also an auto driver by profession. His evidence also prove the fact that at the time of accident, he was proceeding behind the autorickshaw in which complainant and the deceased were travelling. He has deposed in unequivocal terms that accident occurred due to the rash or negligent driving of the military truck and that the driver of the military truck suddenly took a right turn without giving any indication, as a result of which the front bumper of the military truck dashed against the 13 CRL.RP NO.1241 OF 2019 autorickshaw and both inmates fell out of autorickshaw and the front right tire of the military truck passed over the deceased killing him instantly. He has identified accused Nos.1 and 2 as the drivers of military truck and autorickshaw respectively.

23. The evidence of PW-5 prove that the accident occurred due to the rash or negligent driving of military truck by accused No.1. Even where the evidence of PW-4 is not in taken into consideration, then also based on the testimony of PW-3 and 5, the prosecution has proved that accident occurred due to rash or negligent driving of military truck by accused No.1. Of course the evidence of PW-4 is admissible and she being the inmate of the autorickshaw and injured was very much present at the spot and she has deposed in unequivocal terms that accident occurred due to the rash or negligent driving of military truck by accused No.1.

24. Despite cross-examining the prosecution witnesses, the accused No.1 has failed to prove that accident occurred due to the rash or negligent driving of 14 CRL.RP NO.1241 OF 2019 autorickshaw by accused No.2. One more important aspect that is noteworthy is that accused No.1 has not chosen to enter the witness box and depose as to how exactly the accident took place. This fact was within his special knowledge and having disputing the prosecution case, he would have been a better person to speak as to the manner in which the accident occurred. However, accused No.1 has also not taken the pain to give evidence and thereby lost an opportunity to prove his defence.

25. Having regard to the facts and circumstances of the present case, the decisions relied upon by accused No.1 are not applicable.

26. After examining the oral and documentary evidence placed on record, the trial Court has come to a correct conclusion that accident occurred due to the rash or negligent driving of the military truck by accused No.1. The Session Court also after re-appreciation of the oral and documentary evidence has rightly dismissed the appeal filed by accused No.1. This Court finds no 15 CRL.RP NO.1241 OF 2019 justifiable grounds to interfere with the well reasoned Judgment and order of the trial Court as well as the Session Court. In the result, the petition fails and accordingly the following: ORDER (i) Petition filed by the accused under Section 397 r/w 401 Cr.P.C is dismissed. (ii) Consequently, the judgment and order dated 08.01.2018 in C.C.No.837/2015 on file of MMTC-VI, Bengaluru and judgment and order dated 06.09.2019 in Crl.A.No.190/2018 on the file of LXIX Addl.City Civil and Sessions Judge are confirmed. (iii) The Registry is directed to send back the trial Court and Sessions Court records along with copy of this order forthwith. RR Sd/- JUDGE