The prosecution must prove beyond a reasonable doubt the elements of rash and negligent driving and the influence of alcohol, and failure to properly frame charges can vitiate the trial process.

JUDGMENT

BHARAT P.DESHPANDE, J. - This is an appeal filed by the State through Ponda Police Station thereby challenging the acquittal of the respondent dtd. 25/2/2011 in Criminal Case No. 61/S/2009/B for the offences punishable under Sec. 279, 304- A of Indian Penal Code (I.P.C., for short) and Sec. 134(a) and (b) of the Motor Vehicles Act, 1988 (M.V. Act, for short).

2. Vide order dtd. 10/8/2015 leave to file an appeal granted by this Court.

3. I have heard the learned Additional Public Prosecutor Shri Pravin Faldessai for the appellant and learned Counsel Shri Arun Bras De Sa for the respondent at length.

4. In nutshell, it is the case of the prosecution that on 26/8/2008, at around 13.10 hours near Curti, Khandepar Panchayat, Ponda, the respondent/accused being the driver of a passenger bus bearing No. KA-32-F-1248 of KRTC, drove said bus under the influence of alcohol while proceeding towards Usgao and in that process dashed against one pedestrian girl namely Manju Rajput aged 10 years near Librament Bar, who was walking on the left hand side of the road, causing the death of the said girl. The respondent/accused fled away from the spot without giving any medical assistance to the injured or without giving information to the authorities about the accident. Accordingly, on the same date an FIR was registered against the respondent/accused at Ponda Police Station. He was arrested and examined by the Medical Officer. After completion of the investigation, charge-sheet was filed bearing No. 122 of 2009 before the learned Magistrate at Ponda on 4/7/2009. After explaining the substance of the accusation, the matter was posted for trial. In all 16 witnesses were examined by the prosecution to prove charges levelled against the accused. Accused himself stepped into the witness box as Dw1 and deposed in his defence. The learned Magistrate by the impugned order dated 25/ 2/2011 observed that the prosecution has failed to prove that the accused drove said bus in a rash and negligent manner or he was under the influence of alcohol. Similarly, the learned Magistrate found that the accused was unaware as to what happened to the left rear side of his bus and therefore, he did not stop his bus. Finally, the learned Magistrate concluded that the prosecution has failed to prove charges levelled against the accused beyond all reasonable doubt and that is why he was acquitted.

5. Shri Pravin Faldessai, learned Additional Public Prosecutor submitted that the prosecution examined 16 witnesses which include the eyewitness, the panch witnesses, Police Officers, Doctors, second driver and conductor of the bus involved in the accident as well as the Depot Manager of the Karnataka State Transport Corporation. From the above evidence, the prosecution has clearly established that the deceased girl was walking by the edge of the road and the accused drove his bus in a rash and negligent manner and in that process dashed against the said girl thereby causing fatal injuries. He further submitted that the accident took place during broad daylight at 13.30 hours and specifically when the school children were proceeding to their residence after school was over. He then submitted that the spot of the accident is a busy place and the accused was supposed to drive the bus carefully knowing fully well that school children were moving after school was over and that the area is a busy area. The learned Additional Public Prosecutor further submitted that the panch witnesses, eyewitnesses, and Doctors observed that the accused was under influence of alcohol as the smell of alcohol was coming from his breath. Though he admitted that the blood sample of the accused was not collected immediately and there was some delay in referring the accused for medical examination which was done around 5.30 pm i.e. after 4 hours from the time of the accident, the Doctor who examined the accused found that his breath smelling of alcohol. He, therefore, submitted that the accused was