Ameer Ahamed vs The State of Karnataka

Anand Byrareddy, J.—The petition coming on for admission, is considered for final disposal, having regard to the unusual circumstances under which the present petitioner has been found guilty and convicted for the offences punishable under Sections 279 and 304-A of the Indian Penal Code, 1860 (hereinafter referred to as ''the IPC'', for brevity).

The allegations against the petitioner are that, on 14.01.2009 at about 10.40 a.m., the petitioner who was a conductor of a bus belonging to the Bangalore Metropolitan Transport Corporation bearing No. KA-50 F-13 had collided into the bus bearing No. KA-01-F-1484 when there was no driver in the said bus. It is alleged that he drove the bus in a North-Southerly direction in reverse and he drove it at speed and in a rash and negligent manner and thereby had dashed into another bus bearing No. KA-01 F 1244 and which was said to have been parked, as a result of which a pedestrian was caught between the two buses and was injured and succumbed to the injuries. This incident occurred in the Shivajinagar Bus Stand. Incidentally, the petitioner did not possess a driving licence to drive the bus. A complaint was filed on the same day against the accused, on the strength of which a case has been registered against the petitioner in Crime No. 6/2009 for offences punishable under Sections 279, 304-A of the IPC. After investigation, a charge-sheet was filed. Thereafter, the plea of the accused having been recorded for the offences punishable as aforesaid read with Section 3(1) and 181 of the Motor Vehicles Act, 1988 (hereinafter referred to as ''the MV Act'', for brevity), the accused had pleaded not guilty and claimed to be tried. The prosecution examined nine witnesses PWs 1 to 9 and got marked seven documents Exhibits P-1 to P-7. The statement of the accused was recorded as required u/s 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''the Cr.P.C. for brevity), whereby he had denied the allegations. Arguments having been heard, the Trial Court found the petitioner guilty of the offences punishable under Sections 279 and 304-A IPC as well as Section 3(1) read with Section 181 of the MV Act and sentenced the petitioner to undergo rigorous imprisonment for one month and to pay a fine of Rs. 1,000/- for the offence punishable u/s 279 IPC and also found him guilty for the offence punishable u/s 304-A IPC and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 5,000/-. He has also been held guilty for the offences punishable u/s 3(1) read with Section 181 of the MV Act and has been directed to pay a fine of Rs. 500/-. Being aggrieved, an appeal had been preferred and the Lower Appellate Court framed the following points for consideration:

"1. Whether the appellant accused proves that, the judgment of conviction and sentence passed by the Court below against him is capricious, perverse and it is illegal and is against the provisions of law and is liable to be set aside?

What Order"

The court held the same in the negative. It is that which is under challenge in the present petition.

The learned counsel for the petitioner would contend that the entire case of the prosecution rests on the evidence of PW-1 who was the driver of the bus bearing No. KA-01 F-1484 which was the bus which was parked on Platform No. 11 of the Shivajinagar Bus Stand and the petitioner was said to be the conductor of the offending bus which had reversed into the said parked bus and the deceased having been caught between two vehicles, had succumbed to the injuries. The said witness has only alleged that the petitioner had driven the bus and that it had been reversed at speed into the parked bus of which the said witness was the driver. Though he was not the actual eyewitness to the accident, on the said allegation, the prosecution has sought to build up a case. It is not the case of the prosecution that in either of the buses there were any other passengers who were witness to the alleged conduct of the present petitioner. The petitioner had no occasion to drive any bus. In the absence of any eye-witness who had actually seen the petitioner driving the bus, when there was no need or occasion for him to take the step of moving the bus, there was no substance in the case of the prosecution. PW-1 admittedly was not present when the accident occurred. According to him, he was in a Toilet and when he came out, he saw that there was an accident. He had further admitted in his cross-examination that it is quite possible for the bus to move on its own if it was parked on an incline, if the gear had not been engaged properly, if the hand brake was not on. Therefore, to attribute the accident to the petitioner, there was no categorical evidence of any witness.

PW-2, the driver of the very bus which was characterized as the offending bus also, had not witnessed the petitioner actually driving the bus and has merely supported the case of the prosecution and failed to corroborate the evidence of PW-1. The very statements of the witness would disclose this.

Further, PW-3 is said to be the conductor of the bus which/was stationary and his evidence is purely circumstantial. He had also not witnessed the accident occur, who came on the scene later, after hearing commotion.

PW-5 was said to be the conductor of the other bus which was characterized as the offending bus. He was also away and was not on the scene when the accident occurred and only came thereafter.

Therefore, on the basis of the evidence of these witnesses, to hold that the petitioner had got into the driver''s seat of the offending bus and had reversed it at the spot, whereby it had dashed into another parked bus and the deceased had been caught between the two vehicles, is on the basis of the complaint made by PW-1 who had not actually seen the petitioner driving any bus or the actual occurrence of the accident. In the absence of any eye-witness or other categorical evidence to indicate that the petitioner was instrumental in causing the accident, the courts below having found the petitioner guilty, is without any basis and therefore seeks that the petition be allowed and the judgments of the courts below be set-aside.

Insofar as the above contentions are concerned, the learned Government Pleader however seeks to justify the judgments of the courts below.

In confirming the conviction of the Trial Court, the Appellate Court after extracting the gist of the evidence tendered by the several witnesses had held that PWs 1 to 9 had consistently stated about the accident caused by the accused and about the death of the victim and has held that there is no reason to disbelieve the witness, as there are no material inconsistencies to disbelieve the prosecution story. It is further held that the petitioner was a conductor of a bus and there was no material to indicate that he had a driving licence to drive the bus and has accordingly held that the Trial Court has rightly arrived at its findings in convicting the petitioner.

While it is also to be noticed that the Appellate Court, while recording the gist of the evidence tendered by the witnesses, has observed that PW-1 had not actually witnessed the accident. It is further recorded that PW-2 claimed that he saw the bus moving in reverse and dashing into another bus and the deceased being caught between two buses. In cross-examination though he maintained that the accused who was a conductor had driven the bus in the reverse direction, he has further clarified that he did not complain about the conduct of the accused. There was no mahazar drawn or conducted on the spot and he had signed the mahazar at the Police Station and he has further stated that there were about 7 to 8 passengers in the bus at the time of the accident. This is significant. If there were passengers in the bus, they were the best persons to speak about the conduct of the petitioner. This is significantly not forthcoming.

No witness has been examined other than the drivers and the conductors of the Corporation. Therefore, PW-2 has not actually seen the petitioner drive the bus and was apparently a surmise. Though PW-3 in turn has also stated that he was standing at the spot when the accident occurred but has not categorically stated that he had seen the petitioner driving the bus. PW-4, the Traffic Controller admittedly was not at the spot and he came there after hearing the commotion after the accident occurred. PW-5, the conductor of the bus though has stated that when he came out of the toilet, he saw the petitioner sitting in the driver''s seat and when questioned as to why he was sitting on the driver''s seat, he is said to have replied that there was a traffic jam and hence, instead of moving the bus forward, he has moved the bus backward, not realising that it was in the reverse gear, as a result of which the accident had occurred. However, it is noticed that PW-1 and PW-5 who were the driver and conductor of the particular bus respectively, had both gone into the toilet and it is only after they heard a loud noise they had come out. The evidence of PW-1 is to that effect. Therefore, the evidence of PW-5 is directly contradictory to the evidence of PW-1 and cannot be accepted, as it is evident that he came along with PW-1 after the accident had occurred and they did not see as to who had caused the accident. It is only to foist the case on the present petitioner that such a statement has been made is evident from the contradictory statements made by PW-1 and PW-5. PW-6 was the Motor Vehicle Inspector. His evidence is not material. PW-7 who was an Assistant Traffic Inspector is also a formal witness as is the case of PW-8, a Traffic Inspector and PW-9, a Police Sub-Inspector. Therefore, for the prosecution to have established that the petitioner who was the conductor and not licenced to drive a bus had got into the driver''s seat of the offending bus and had reversed it at speed, resulting in the bus colliding with a stationery bus and the deceased having been caught between the two vehicles having succumbed to injuries, was required to be established by producing material evidence which would prove the case of the prosecution beyond all reasonable doubt.

Given the circumstance that the several witnesses had not actually seen the accident occur and have not categorically stated that the petitioner was indeed the driver of the offending bus except PW-5 whose evidence is contradicted by PW-1 who has stated that PW-1 and 5 had both gone to the toilet and came out after they heard the loud noise and therefore, the evidence of PW-5 is apparently to implicate the petitioner in the absence of any other categorical and cogent evidence. Significantly, the statement that there were seven to eight passengers inside the bus as stated by PW-2 would take on significance. It was necessary for the prosecution to at least have examined one of those passengers to have clearly implicated the petitioner. That is not forthcoming.

Therefore, both the courts below were not justified in placing reliance only on the evidence of these witnesses in holding that the case had been proved against the petitioner beyond all reasonable doubt. The case sought to be made out is certainly doubtful. Therefore, the petition is allowed. The judgments of the courts below are set aside. The petitioner is acquitted. The fine amount if any paid, shall be refunded.