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2002 DIGILAW 1485 (AP)

YEGITILA PANDU v. State Of A. P.

2002-12-19

B.SESHASAYANA REDDY

body2002
B. SESHASAYANA REDDY, J. ( 1 ) THIS criminal revision is directed against the judgment dated 13-2-2001 passed in Criminal Appeal No. 50 of 1999 on the file of the Sessions Judge, cuddapah, whereby the learned Sessions judge confirmed the conviction of the petitioner/accused for the offences under sections 337 and 304-A IPC, while modifying the sentence of imprisonment imposed for the offence under Section 337 ipc to fine and reducing the sentence of imprisonment for the offence under section 304-A IPC from 18 months to six months, passed in CC No. 38 of 1997 on the file of Judicial First Class Magistrate, badwel, Cuddapah. ( 2 ) THE prosecution case in brief is as follows: The petitioner/accused was driver of apsrtc bus bearing No. AP-9z-2990. P. W. 1 Kondareddi Venkatarami Reddy driver of the tractor / trolley bearing No. AP-04-T-4093/4094. On 1-3-1996 at about 6 a. m. the tractor/trolley driven by P. W. I was proceeding towards Siddavaram to danthalapalli. The tractor had a load of earth which was being carried to the fields of the owner of the tractor namely ramana Reddy, a journalist. Coolies were travelling on the trolley at that time. Deceased P. Kondaiah and deceased M. Thirupathiah, P. W. 2 T. Gurraiah, P. W. 3 mudium Santaiah, P. W. 4 Gin Anjaneyulu, p. W. 5 Katari Venkataiah, P. W. 6 Korivi peeraiah, P. W. 7 Nopuri Lakshmaiah p. W. 8 Tirupati Pedda Veeraiah were among the coolies travelling on the trolley. On reaching Chinna Naravagutta, the bus bearing No. AP-9z-2990 driven by the petitioner/accused came in high speed from opposite direction and dashed the front right side portion of the trolley and as a result the trolley went off the road and front tire disc of the trolley broke. P. Kondaiah and M. Thirupathaiah met with instantaneous death whereas P. Ws. l to 8 sustained injuries. P. W. 9 K. Subbamma who was travelling in the bus also sustained injuries. At about 8 a. m. P. W. I, driver of the tractor/trolley, took all the injured to porumamilla P. S. and presented. Ex. P-1 complaint before the SHO. P. W. 16 m. Prabhakar, Head Constable of porumamilla P. S. received Ex. P-1 complaint and registered a case in Cr. No. 12/96 under sections 337 and 304-A IPC and issued ex. P-11 FIR. He examined P. Ws. Ex. P-1 complaint before the SHO. P. W. 16 m. Prabhakar, Head Constable of porumamilla P. S. received Ex. P-1 complaint and registered a case in Cr. No. 12/96 under sections 337 and 304-A IPC and issued ex. P-11 FIR. He examined P. Ws. l to 5 and 8 and recorded their statements and sent the injured to Porumamilla Government hospital for treatment. He visited the scene of offence at 10 a. m. and conducted inquest on the dead bodies of P. Kondaiah and M. Thirupathaiah. After the inquest, the dead bodies were sent for post-mortem examination. P. W. 15 Dr. Muni Sekhar, medical Officer, Porumamilla examined p. Ws. 6 to 9 and L. W. 10 P. Ramaiah and issued Exs. P-5 to P-9 wound certificates. P. W. 17 Dr. S. K. Hussain, Civil Assistant surgeon, Cuddapah Government Hospital examined P. Ws. 2 to 5 and issued Ex. P-12 to 15 wound certificates. P. W. 15 conducted post-mortem examination on the dead body of deceased M. Tirupathaiah on 2-3-1996 at 10. 30 a. m. and issued Ex. P-10 postmortem report opining that the deceased died of injuries to vital organs like brain, lungs and bones. P. W. 18 S. Mahaboob basha, Circle Inspector of Police, Badvel took up investigation from P. W. 16 M. Prabhakar and examined P. W. 11 Pelluri ademma wife of deceased P. Kondaiah and P. W. 12 Mudium Venkatalakshumma wife of deceased M. Thirupathaiah and recorded their statements. He secured the presence of P. W. 10 Munam Anjaneyulu, conductor of the APSRTC bus bearing registration No. A. P. 9z 2990 and recorded his statement. The petitioner/accused surrendered himself on 1-3-1996 at 6. 30 p. m. before P. W. 18 who effected his arrest and produced him before the Court for being remanded to judicial custody. P. W. 18 sent requisition to the Motor Vehicle inspector to inspect the vehicles involved in the accident. After completing investigation p. W. 18 filed charge-sheet in the Court of judicial Magistrate of First Class, Badvel. The learned Magistrate took the charge-sheet on file as C. C. 38/97. On appearance of the accused and on furnishing copies of the documents to him, the learned Magistrate examined him under Section 251 Cr. P. C. putting substance of the acquisition levelled against him. The learned Magistrate took the charge-sheet on file as C. C. 38/97. On appearance of the accused and on furnishing copies of the documents to him, the learned Magistrate examined him under Section 251 Cr. P. C. putting substance of the acquisition levelled against him. The petitioner/accused pleaded not guilty for the offences under sections 337 and 304-A IPC and Section 187 of M. V. Act. In order to substantiate the case against the petitioner/accused, the prosecution examined P. Ws. l to 18 and marked Ex. P-1 to 15 on behalf of the petitioner/accused. Ex. D-1 was marked on behalf of the petitioner/accused. On considering the evidence and on hearing the prosecution and the petitioner/accused, the learned Magistrate found the petitioner/accused guilty for the offences under sections 337 and 304-A IPC and convicted him accordingly and sentenced him to suffer rigorous imprisonment for a period of six months and pay a fine of Rs. 300/- for the offence under Section 337 IPC; in default to suffer simple imprisonment for 45 days for the offence under Section 337 IPC; rigorous imprisonment for a period of 18 months and pay a fine of Rs. 300/- in default to suffer simple imprisonment for a period of 45 days for the offence under section 304-A IPC. Feeling aggrieved by the judgment of conviction and sentence, the petitioner/accused filed Crl. A. No. 50/ 99 on the file of Sessions Judge, Cuddapah. The learned Sessions Judge by his judgment dated 13-2-2001 while confirming the conviction of the petitioner/accused for the offences under Sections 337 and 304-A IPC modified the sentence of imprisonment for the offence under Section 337 IPC to fine and reduced the sentence of imprisonment of 18 months to six months for the offence under Section 304-A IPC. Hence, the petitioner/accused filed this revision. ( 3 ) THE learned Counsel for the petitioner drew my attention to the statements of the witnesses by submitting that there are glaring features in this case as the witnesses have not stated the manner of accident and therefore the petitioner/accused deserves acquittal. Learned Public prosecutor submits that the lower Court and the first appellate Court appreciated the evidence brought on record in right perspective and recorded conviction of the petitioner/accused for the offence under sections 304-A and 337 of IPC and therefore re-appreciation of the evidence is not warranted in this revision. Learned Public prosecutor submits that the lower Court and the first appellate Court appreciated the evidence brought on record in right perspective and recorded conviction of the petitioner/accused for the offence under sections 304-A and 337 of IPC and therefore re-appreciation of the evidence is not warranted in this revision. ( 4 ) IT has been held by the Supreme Court in State of Kerala v. Puttumana illath Jathavedan Namboodiri, JT 1999 (1) SC 456, that when there are glaring features and it appears that injustice has been done, the Court can re-appreciate the evidence. Rashness and negligence are not the same thing. Mere negligence cannot be construed to mean rashness. There are degrees of negligence and rashness and in order to amount criminal rashness or criminal negligence, one must find that the rashness has been such a degree as to amount to taking hazard, that hazard was of such a degree that the injury was most likely to be occasioned thereby. The prosecution must properly prove the rash and negligent act of the petitioner/accused. Simply lack of care which constitutes civil liability is not enough to prove a charge of homicide by negligence. For the purpose of criminal law, there are degrees of negligence and a very high degree of negligence is required to prove before a charge under Section 304-A ipc is established. A definite finding should be recorded by the learned Judge as to whether the version of the witness regarding high speed and negligent driving of the petitioner is acceptable to him or not. In the absence of such a definite finding no conviction under Section 304-A IPC can be maintained. ( 5 ) THE prosecution examined P. Ws. l to 18 and marked Exs. P-1 to P-15 in order to substantiate the case against the petitioner/ accused. P. W. I is the driver of the tractor/ trolley bearing Nos. AP 04 T 4093/4094. P. Ws. 2 to 8 were coolies travelling on the trollery at the time of the incident. They are the injured in the accident. P. W. 9 was a passenger in the APSRTC bus bearing No. A. P. 9z 2990. She also sustained injuries in the accident. P. W. 10 m. Anjaneyulu was the conductor of the bus bearing No. AP 9z 2990. P. W. 11 is the wife of deceased P. Kondaiah. They are the injured in the accident. P. W. 9 was a passenger in the APSRTC bus bearing No. A. P. 9z 2990. She also sustained injuries in the accident. P. W. 10 m. Anjaneyulu was the conductor of the bus bearing No. AP 9z 2990. P. W. 11 is the wife of deceased P. Kondaiah. P. W. 12 mudium Venkatalakshumma is the wife of deceased M. Tirupathaiah. The evidence of P. W. 11 and 12 are not much material as they speak of their relationship with deceased P. Kondaiah and deceased m. Tirupathaiah. P. W. 13 is the panch witness for the inquest held on the dead bodies of P. Kondaiah and M. Tirupathaiah. Ex. P-3 and 4 are the inquest reports. P. Ws. 15 and 17 are the Doctors who treated the injured and issued wound certificates. P. W. 16 is the Head Constable who registered a case in Cr. No. 12/96 and issued Ex. P-11 FIR, and sent all the injured to the hospital and held inquest on the dead bodies of the deceased. P. W. 15 is the post-mortem Doctor who conducted autopsy on the dead body of M. Tirupathaiah and issued Ex. P-10 post-mortem certificate. P. W. 15 is the Circle inspector of Police who took up investigation from P. W. 16 collected post-mortem report, wound certificates and motor vehicle inspector s report and filed charge-sheet. Of the witnesses examined, P. W. 10 who is the conductor of the bus did not support the prosecution and the prosecution declared him hostile and marked his 161 statement as Ex. P-2. P. W. 9 who is the passenger in the bus did not speak of the rash and negligent driving of the petitioner/accused. His evidence is that the bus and the tractor dashed against each other and thereby she sustained injury. Therefore, her evidence is of no avail to the prosecution. It is no more in dispute that P. Kondaiah and M. Tirupathaiah died of injuries received by them in the accident. It is also not in dispute that P. Ws. 1 to 8 sustained injuries in the accident. The road at the place of the accident is down-gradient. The bus driven by the petitioner/accused was proceeding up-gradient and whereas the tractor/trolley driven by P. W. I was coming down-gradient. This fact has been admitted by P. W. 1. It is also not in dispute that P. Ws. 1 to 8 sustained injuries in the accident. The road at the place of the accident is down-gradient. The bus driven by the petitioner/accused was proceeding up-gradient and whereas the tractor/trolley driven by P. W. I was coming down-gradient. This fact has been admitted by P. W. 1. It is useful to refer the relevant portion of the cross-examination of P. W. I and it is thus:"cross-EXAMINATION by the Counsel for the accused:- One Ramanareddy scribed the complaint. Said Ramanareddy is the tractor owner. He is also a journalist. After drafting the complaint he handed over to me and gave it to the police. I do not know the contents of the complaint. I do not know the number of the driver accused. I took treatment in the hospital. The road is running from East and West. My tractor is coming towards downwards and the bus is going on the upwards on the road. It is not true. . . . . . . . . . ". ( 6 ) SINCE the bus was proceeding up- gradient the version of the prosecution witness that it came in high speed and dashed the tractor/trolley appears to be incorrect. P. W. 2 did not speak of the high speed or rash and negligent driving of the petitioner/ accused. For better appreciation, i may refer to the evidence of P. W. 2 in his own words as it is thus:"examination in Chief: I am resident of siddavaram Agraharam. I live by cooli. I know P. W. 1 and accused. About 11/2 years back at 6 or 7 a. m. we labour were coming in a tractor driven by P. W. I towards dhanthalapalli. At that time one bus came in the opposite direction from Porumamilla and dashed against the tractor. I fell down from the tractor and lost consciousness. I regained consciousness at Porumamilla hospital. From there I was sent to Cuddapah hospital. I received injuries to the head and back and also to the leg. I came to know accused was driving the bus. I do not remember his face. Police has not examined me. " ( 7 ) P. W. 3 also did not speak of high speed or rash and negligent driving of the petitioner/accused. I received injuries to the head and back and also to the leg. I came to know accused was driving the bus. I do not remember his face. Police has not examined me. " ( 7 ) P. W. 3 also did not speak of high speed or rash and negligent driving of the petitioner/accused. It is the evidence of p. W. 4 that the bus came at high speed in opposite direction and dashed trolley and as a result the axle of the back wheel broke and the trolley fell down. He did not speak of rash and negligent driving of the petitioner/ accused. P. W. 5 testifies that the bus came in high speed and hit the trolley from the opposite direction. He further testifies that the bus ran over the trolley and the trolley fell down. It is not the case of the prosecution that the bus ran over the trolley. In the cross-examination he states that the trolley fell in culvert as the driver of the tractor screwed towards left. For better appreciation, I may refer to the cross-examination of P. W. 5 in his own words it is thus:"cross-EXAMINATION by the Counsel for the accused: Our tractor coming towards gradient. The bus is coming on the opposite direction. There is culvert on the left side of the road near the scene of offence. As the bus coming on opposite direction our tractor driver took the vehicle to the left. The trolly fell in the culvert. Some of us fell into the culvert. Some of them were in the trolly. Immediately after accident I fell unconscious. I do not know whether axle was broken. At Porumamilla hospital I regained consciousness. P. W. 6 testifies that the bus came all of a sudden and dashed the trolley. In the cross-examination he admits that he does not know as to how the accident took place. It is apposite to refer to the cross-examination of P. W. 6 in his own words and it is thus: "cross-examination by the Counsel for the accused: It is true the bus was coming on the opposite direction and climbing towards upwards. Our tractor is coming down. To the left of the road there is a canal. It is true the trolley fell in the canal. I fell down but I do not know where I fell down due to unconsciousness. Our tractor is coming down. To the left of the road there is a canal. It is true the trolley fell in the canal. I fell down but I do not know where I fell down due to unconsciousness. The tractor driver woke me up and took me into the jeep. I do not know how the accident took place. I was conscious till the accident. I came to know name of the accused at the hospital. I cannot say from whom I came to know the name of the accused. Police examined me at Porumamilla Hospital. I am illiterate. I did not give the numbers of the trolly, tractor and the bus to the police. I have not stated to the police about Krishna reddy taking us to the hospital in the jeep. . . . . . . . . " ( 8 ) P. W. 7 testifies that the bus came at high speed and dashed the trolley and so he fell down and lost the consciousness. He did not speak of the rash and negligent driving of the petitioner/accused. ( 9 ) P. W. 8 T. Pedda Veeraiah is one of the coolies travelling on the trolley and he is also one of the injured. He testifies that a bus coming from Porumamilla going towards Tekurpet dashed the tractor. He did not speak of rash and negligent driving of the petitioner/accused. P. W. 9 Podill subbamma is one of the passengers in the bus. She testifies that the bus and the tractor dashed each other and thereby she sustained injuries. She did not speak of rash and negligent driving of the petitioner/accused. As seen from the evidence of p. Ws. l to 8 the bus came from opposite direction. After considering the evidence of p. Ws. l to 8 the trial Court has given a finding that the accident occurred due to rash and negligent driving of the petitioner/accused. It is apposite to refer to the relevant portion of the judgment of the trial Court and it is thus:"p. W. 4 in his cross-examination admitted that the vehicles move slowly on up gradient and that the vehicles move towards in down gradient there will be free movement for the vehicles. From this it is clear that the accused was driving the bus at the time of offence with high speed. From this it is clear that the accused was driving the bus at the time of offence with high speed. It is common knowledge that vehicles going in down gradient normally moves little bit speedily. Therefore, the act of the accused certainly can be said to be negligent one. No reasonable man would drive vehicles while going in up gradient with high speed. The evidence of P. Ws. 4 to 6 clearly show that the accused is supposed to be more alert and more cautious while going in up gradient for the aforesaid reason. Vehicles coming in down gradient naturally moves little bit speedily. But from the evidence of P. Ws. 4 to 6 shows that he has not exercised the degree of the care which the person of ordinary sense and prudence under like circumstances and performances of like acts would have exercised. The act of the accused though not negligent perse it can be said that he acted negligently and also rashly. " ( 10 ) IT is evident from the aforesaid para of the trial Court judgment that the trial Court did not give a specific finding that the accident occurred due to rash and negligent driving of the petitioner/accused. The trial Court assumed that the petitioner/accused drew the bus at a high speed as the bus was proceeding up gradient. The conclusion arrived at by the trial Court is wholly unsustainable. ( 11 ) THE learned appellate Judge on reappraisal of the evidence has observed as follows:"so, from the above facts and circumstances, there is no dispute at all with regard to the sustaining of injuries by P. Ws. l to 6 and also causing of death of the deceased tirupathaiah and Kondaiah in the accident. It is clear from the evidence of P. Ws. l to 6 and also from the evidence of Doctors p. Ws. 14, 15 and 17 who issued wound certificates as Exs. P-5 to P-10 and Exs. P-12 to P-15 that the accident occurred due to the rash and negligent driving of the appellant who was the driver of the crime bus. The prosecution has established the identity of the accused who was responsible for the accident, through the evidence of the injured witnesses. P. W. 1 is the driver of the tractor. As per the evidence of P. W. 1 and also the recitals of Ex. The prosecution has established the identity of the accused who was responsible for the accident, through the evidence of the injured witnesses. P. W. 1 is the driver of the tractor. As per the evidence of P. W. 1 and also the recitals of Ex. P-1 corroboration the recitals of Ex. P-1, it is clearly shown that the accused drew the bus in a rash and negligent manner and dashed against the tractor on the right side of the tractor as a result of which the death of two persons was caused and P. Ws. 2 to 9 and L. W. 10 sustained injuries. " ( 12 ) AS seen from the judgment, the learned Sessions Judge has failed to note that none of the witnesses stated rash and negligent driving on the part of the petitioner/accused. Admittedly, the bus and the tractor collided each other. The petitioner/accused was the driver of the bus and P. W. 1 was the driver of the tractor/trolley at the time of the accident. The petitioner/accused presented a report detailing the account of the incident. P. W. 18 s. Mahaboob Basha, Inspector of Police admits of his receiving the report from the petitioner/accused. There are two reports regarding the incident. One report i. e. , Ex. P-1 submitted by the petitioner/accused. The investigating Officer did not make any effort to examine the contents of the report submitted by the petitioner/accused to know whether the account of the incident given by the petitioner/accused is true or false. There is a collision between the two vehicles. It may be due to the negligence of both the drivers or due to the negligence of any one of the drivers or due to contributory negligence of both the drivers. In these circumstances, the scene of offence panchanama and the rough sketch of the scene of offence play a vital role to throw light to know that as to whose negligence the accident occurred. No separate panchanama is prepared in this case. It is stated by P. W. 16 (Head constable) that he has not prepared any rough sketch or scene of offence panchanama. P. W. 18 states that the Head constable prepared rough sketch and he signed thereon. For better appreciation i may refer to the cross-examination of p. W. 18 and it is thus:"on 1-3-1996 itself our H. C. sent FIR in this case to the Court. P. W. 18 states that the Head constable prepared rough sketch and he signed thereon. For better appreciation i may refer to the cross-examination of p. W. 18 and it is thus:"on 1-3-1996 itself our H. C. sent FIR in this case to the Court. I did not ascertain the mode by which FIR was sent to the Court by our Head Constable. I got the photos of the scene of offence taken. As the photos faded away at the time of development, I could not file them. I have not mentioned this fact in my Part I C. D. Our H. C. prepared the rough sketch and i signed it. Since inquest report covered the observations made, I have not separately prepared the scene observation report. I found damages to both the crime vehicles. I have not assessed the damages caused to the crime vehicles, I left it to the M. V. Inspector. I have seized the driving licence, insurance bonds. I have not prepared any mahazar for seizure of insurance policy bond and driving licence. I do not remember whether I filed insurance bond and driving license into the Court. It is true that on seeing the C. D. one can say the material is placed before the Court by the police. I do not remember whether Ramana Reddy, a journalist, is the owner of the tractor and trailer. It is true that my Part I C. D. is silent with regard to owner of the tractor. Our head Constable scribed the complaint in this case. At the time of conclusion of inquest by H. C. , I reached to the scene of offence. I have not signed in Ex. P-3 and P-4. Soon after receipt of information I rushed to the hospital at the first instance, and afterwards I went to the scene of offence. By 3. 15 p. m. on 1-3-1996 I have taken part I c. D. from our Head Constable. Since the accused himself handed over a report, I have not separately recorded his statement. Only the first report is treated as complaint and any report subsequent to this complaint treated as only a statement. By 3. 15 p. m. on 1-3-1996 I have taken part I c. D. from our Head Constable. Since the accused himself handed over a report, I have not separately recorded his statement. Only the first report is treated as complaint and any report subsequent to this complaint treated as only a statement. I did not mention in my part I C. D. that the report given by the accused as to the offence is false but after due consideration of the facts revealed during my investigation I came to the conclusion that report given by the accused is false. It is true that there is a hook to the trolley which connects to the tractor. I cannot say if the hook is broken there is a possibility of overcoming. I cannot say if axel of tractor is broken the vehicle would not be within the control of the driver. The right side front portion of the bus hit the right side front portion of the tractor. It is not true to say that the driver of the tractor also will receive some injuries. I cannot say whether front disk of the tractor was broken in the accident, it is for the m. V. Inspector witness voluntarily says. It is true that in the complaint right side disk of the tractor was broken. It is not true to suggest that only due to breakage of tractor disk, the tractor hit the bus. I did not minutely observe whether the axel of trolley was broken. I have not found any channel on the left side of the tractor. It is true that generally we maintain cordial relationship with journalists. It is not true to say that since Ramana Reddy is a journalist and tractor belongs to him, though there is no fault on the part of the accused, I have foisted this false case against the accused. " ( 13 ) IT is explicit from the evidence of P. W. 18 that he did not prepare the rough sketch and the scene of offence panchanama. According to him, the description of the scene of offence has been mentioned in the inquest report. P. W. 13 is the panch witness for the inquest held on the dead bodies of P. Kondaiah and M. Thirupathaiah. Ex. P-3 and P-4 are the inquest reports. According to him, the description of the scene of offence has been mentioned in the inquest report. P. W. 13 is the panch witness for the inquest held on the dead bodies of P. Kondaiah and M. Thirupathaiah. Ex. P-3 and P-4 are the inquest reports. He did not speak of the details of the scene of offence panchanama. He did not even say that the police observed the scene in his presence. The position of the vehicles soon after the accident is not spoken by P. W. 13. Rough sketch said to be prepared by the Head constable is not marked as an exhibit. None has been examined to speak of the scene of offence Panchanama. As the accident occurred when the vehicles are proceeding in the opposite direction, unless one of the vehicles went on the wrong side, the question of occurring the accident does not arise. None of the witnesses examined by the prosecution testified that the bus driven by the petitioner/accused came on the wrong side of the road. In these circumstances, the rash and negligent driving of the petitioner/accused cannot be inferred. In view of the above reasons, i find that it is not possible to accept the findings of the Courts below that the petitioner/accused was driving the bus bearing No. AP-9z-2990 in a rash negligent manner at the time of the accident. ( 14 ) IN the result, this revision is allowed setting aside the conviction of the petitioner/accused for the offences under sections 304-A and 337 IPC and he is acquitted of the same. Fine amounts paid by him are ordered to be refunded.