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2003 DIGILAW 753 (AP)

Kutcharlapati Krishnam Raju v. State Of A. P.

2003-06-16

S.R.K.PRASAD

body2003
S. R. K. PRASAD, J. ( 1 ) THIS Criminal revision case is directed against the judgment in Crl. A. No. 160 of 1999 on the file of the Sessions Judge, Vizianagaram. ( 2 ) THE factual matrix that arises for consideration can be briefly stated as follows. The accused is a resident of Vizianagaram. He was working as a driver in S. R. Motor Transport. On 28. 4. 1997 he was driving lorry bearing No. AHP 6978. In the said lorry Pandiri Suryarao, Chippada Ramesh, B. Neelakanteswararao and Annapurna also were travelling. When the lorry reached Pedatadivada junction, it dashed against a stationed lorry bearing No. AND 3393 at about 0. 30 hrs i. e. , early hours of 29. 4. 1997. As a result of the said accident Pandiri Suryarao died instantaneously and Ramesh and Neelakanteswararao sustained grievous injuries. Thereupon, the crime was investigated by the I Town Police Station, Vizianagaram and a case was registered in Cr. No. 42 of 1997. The accused was charged for the offences under Sections 304-A, 338 and 337 IPC. After the trial was completed and on appreciation of evidence on record the learned Magistrate found that the driver of the lorry belonging to transport company was guilty of the offence and convicted him under Section 304-A IPC as well as Section 338 IPC. For the offence under Section 304-A IPC he was sentenced to undergo S. I. for one year and to pay fine of Rs. 500/-, in default to suffer S. I. for one month. For the offence under Section 338 IPC he was sentenced to suffer S. I. for six months and to ay fine of Rs. 500/-, in default to suffer S. I. for one month. Both the sentences were directed to run concurrently. Aggrieved by the same the petitioner herein carried the matter in appeal before the Sessions Judge, Vizianagaram in Crl. A. No. 160 of 1999. The learned Sessions Judge confirmed the conviction and sentence awarded by the trial Court. Aggrieved by the same the accused invoked the revisional jurisdiction of this Court. ( 3 ) THE learned counsel for the petitioner contends that the evidence of P. W. 2 does not corroborate the evidence of any other witness and hence the same is wholly unreliable. The learned Sessions Judge confirmed the conviction and sentence awarded by the trial Court. Aggrieved by the same the accused invoked the revisional jurisdiction of this Court. ( 3 ) THE learned counsel for the petitioner contends that the evidence of P. W. 2 does not corroborate the evidence of any other witness and hence the same is wholly unreliable. In support of his contention he relied on a decision of the Supreme Court in V. THEVAR v. STATE OF MADRAS. Secondly, he contends that the accident had occurred on account of judgment of error. In support of the above contention he relied on another judgment of the Supreme Court in SYAD AKBAR v. STATE OF KARNATAKA. The learned counsel thirdly contends that the stationed vehicle has no parking lights and in order to avoid collision with the vehicle coming in the opposite direction the petitioner-accused turned the vehicle to the extreme left and dashed against the stationed vehicle. The learned counsel elaborates that in order to avoid major accident he had committed a minor accident and as such the provisions under Section 81 IPC are attracted. He placed reliance on the commentary illustrated under Section 81 IPC by Dr. Sri Hari Singh Gour in Penal Law of India, 11th edition volume No. 1 at page 598. The learned counsel lastly contends that the Court erred in taking into consideration of the statement of the accused under Section 313 Cr. P. C. as the same cannot be considered as evidence against the accused and hence the judgment of the trial Court is perverse and as such the same is liable to be set aside. ( 4 ) THE learned Public Prosecutor placed reliance on the evidence of prosecution witnesses and contends that both the Courts below recorded concurrent findings that the petitioner herein was responsible for the accident and was guilty of the offence, which did not warrant any interference. The learned Public Prosecutor further contends that the lower Court reached the above conclusion after considering all the aspects of the matter and the plea of the accused and as such sought dismissal of the revision case. ( 5 ) ADVERTING to the similar contentions, the Supreme Court framed certain guidelines for evaluating the witness s testimony in its judgment reported in Thevar s case (supra 1 ). ( 5 ) ADVERTING to the similar contentions, the Supreme Court framed certain guidelines for evaluating the witness s testimony in its judgment reported in Thevar s case (supra 1 ). While framing the guidelines the Supreme Court had considered the English law as well as the provisions of the Evidence Act. The relevant portion of the judgment reads as under. In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act, has categorically laid it down that "no particular number of witnesses shall, in any case, be required for the proof of any fact". The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act 1972, there have been a number of statutes as set out in sarkar s Law of Evidence - 9th Edition, at pages 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in S. 134 quoted above. The section enshrines the well recognized maxim that evidence has to be weighed and not counted . Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in poof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well-established rule of law that the Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely: 1. Wholly reliable. 2. Wholly unreliable. 3. Neither wholly reliable nor wholly unreliable. In the first category of proof, the court should have no difficulty incoming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the oourt has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are not such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution. ( 6 ) IT is seen from the above judgment that witnesses have been categorized as wholly reliable, wholly unreliable, neither wholly reliable nor wholly unreliable. The manner of considering their evidence and reaching the conclusion has been clearly laid as also the exceptional circumstances whereunder the evidence of single witness can be accepted like the cases of sexual offences and of the testimony of an approver where there is no necessity to insist upon corroboration. It is clear from the principles laid down by the Supreme Court if the testimony of a single witness is reliable, the Court cannot turn it down. It is also clearly stated that the statute does not contemplate any particular number of witnesses to prove a case. The Court can act on even a single testimony of a sole witness. It is well settled that F. I. R. is not be all and end in all. The earliest version is mentioned in the F. I. R. but the witness has given his own version. Ultimately, the Court found three important circumstances viz. , the accused driving the vehicle, collision of the said vehicle with the stationed vehicle and turning the vehicle to the left side of the road in order to avoid collision with the lorry coming in the opposite direction. P. W. 2 is an injured witness who spoke about the accident. Ultimately, the Court found three important circumstances viz. , the accused driving the vehicle, collision of the said vehicle with the stationed vehicle and turning the vehicle to the left side of the road in order to avoid collision with the lorry coming in the opposite direction. P. W. 2 is an injured witness who spoke about the accident. He is the best person to speak about the accident. He stated that they were cautioning the driver not to drive the vehicle at high speed, which the driver ignored. It is well settled that on the basis of the speed of the vehicle it cannot be concluded that there is rash and negligent driving. It is one of the factors which may be attributed to the cause of the accident. Both the Courts below weighed with the evidence of P. W. 2. No motive is attributed to him to speak falsehood. ( 7 ) COMING to the second contention that there is judgment of error, the learned counsel for the petitioner relied on a decision of the Supreme Court in Syed Akbar s case (supra 2) wherein after considering the relevant case laws the Apex Court observed as under. As a rule, mere proof that an event has happened or an accident has occurred, the cause of which is unknown, is not evidence of negligence. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. To emphasise the point, it maybe reiterated that in such cases, the event or accident must be of a kind which does not happen in the ordinary course of things if those who have the management and control use due care. But, according to some decisions, satisfaction of this condition alone is not sufficient for res ipsa to come into play and it has to be further satisfied that the event which caused the accident was within the defendant s control. But, according to some decisions, satisfaction of this condition alone is not sufficient for res ipsa to come into play and it has to be further satisfied that the event which caused the accident was within the defendant s control. The reason for this second requirement is that where the defendant has control of the thing which caused the injury, he is in a better position than the plaintiff to explain how the accident occurred. Instances, of such special kind of accidents which "tell their own story" of being offsprings of negligence, are furnished by cases, such as where a motor vehicle hurts somebody there or traveling in the vehicle; one car ramming another from behind, or even a head-on-collision on the wrong side of the road. (See per Lord Normand in Barkway v. South Wales Transport Co. (1950) 1 All ER 392 at p. 399 Cream v. Smith (1961) 8all ER 349 Richley v. Faull (1965) 1 WLR 1454. Thus, for the application of the maxim res ipsa loquitur no less important a requirement is that the res must not only bespeak negligence, but pin it on the defendant. It was further held as under. From the above conspectus, two liens of approach in regard to the application and effect of the maxim res ipsa loquitur are discernible. According to the first, where the maxim applies, it operates as an exception to the general rule that the burden of proof of the alleged negligence is, in the first instance, on the plaintiff. In this view, if the nature of an accident is such that the mere happening of it is evidence of negligence, such as, where a motor vehicle without apparent cause leaves the highway or overturns or in fair visibility runs into an obstacle; or brushes the branches of an overhanging tree, resulting in injury, or where there is a duty on the defendant to exercise care, and the circumstances in which the injury complained of happened are such that with the exercise of the requisite care no risk would in the ordinary course ensue, the burden shifts or is in the first instance, on the defendant to disprove his liability. Such shifting or casting of the burden on the defendant from the constituent circumstances of the accident itself, which bespeak negligence of the defendant. This is the view taken in several decisions of English Courts. Such shifting or casting of the burden on the defendant from the constituent circumstances of the accident itself, which bespeak negligence of the defendant. This is the view taken in several decisions of English Courts. (For instance, See Burke v. Manchester, Sheffield and Lincolnshire Rly Co. (1870) 22 Lt 442; Moore v. Fox (R) and Sons (1956) 1qb 596. Also see Paras 70, 79 and 80 of Halsbury s Laws of England, Third Edition, Vol. 28, and the rulings mentioned in the Foot Notes thereunder ). It was thus evident that the accident happened due to an error of judgment, and not negligence or want of driving skill on the part of the accused. An error of judgment of the kind, such as the one in the instant case which comes to light only on post-accident reflection but could not be foreseen by the accused in that fragmented moment before the accident, is not a sure index of negligence, particularly, when in taking and executing that decision the accused was acting with the knowledge and in the belief that this was the best course to be adopted in the circumstances for everyone s safety. . . As in Horabin, here also, the accused had swerved the vehicle to the extreme right side of the road, not only to avoid collision with the ill fated child but also to avoid the risk of the vehicle falling into deep ditches on ether side of the road, and the resultant possibility of far greater harm to the passengers in the bus. . . After going through the English transaction of the evidence of the witnesses, furnished by the counsel, and closely analyzing the happening and its circumstances in the light of arguments advanced on both sides we are of opinion that the prosecution had failed to prove beyond reasonable doubt that the appellant had caused the death of the child by negligent or rash driving. All happened in fraction of a moment and even if the worst was assumed against the appellant, the highest that could be said was that a misjudgment on his part too slight to be branded as culpable negligence, could well account for the accident resulting in the death of the child. ( 8 ) IN the case on hand both the Courts are under the misapprehension that the accused has to raise his pleas during Section 313 examination. ( 8 ) IN the case on hand both the Courts are under the misapprehension that the accused has to raise his pleas during Section 313 examination. Section 313 Cr. P. C. reads as under. Section 313: Power to examine the accused:1. In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the court,- a. May, at any stage, without previously warning the accused, put such questions to him as the Court considers necessarily; b. Shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under Clause (b ). 2. No oath shall be administered to the accused when he is examined under sub-section (1)3. The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. 4. The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for, or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he ahs committed. ( 9 ) IT is clear from Section 313 (3) Cr. P. C. that the accused shall not render himself liable for punishment by refusing to answer such questions or giving false answers to the lower Court. Hence, the learned counsel was rightly contended that the court below ought not to have commented that the accused ought to have raised his pleas during Section 313 examination. The court could have ignored it. Further, the burden of proof always lies on prosecution to prove the case beyond reasonable doubt and there is no legal presumption of shifting the burden soon after completion of prosecution case except in cases where statute provides the same. The accused is certainly entitled to canvas his pleas from the material placed on record. He can always ask the Court to evaluate the evidence and arrive at the truth by considering the available pleas that can be culled out from the prosecution evidence. The accused is certainly entitled to canvas his pleas from the material placed on record. He can always ask the Court to evaluate the evidence and arrive at the truth by considering the available pleas that can be culled out from the prosecution evidence. That is the reason why in a criminal case Court has to weigh the evidence by analyzing the probabilities and credibility of the witnesses. It is always open to the accused to show from the circumstances and the evidence placed before the Court that there is judgment of error. The only circumstance canvassed by the learned counsel in support of the above plea is that he swerved the vehicle towards left side where stationed vehicle was parked since he could not notice its parking as it was parked without switching on the light indicating that it was parked. There is some force in the above contention. ( 10 ) NOW, coming to the contention of the learned counsel that the facts and circumstances attract the provisions under Section 81 of the IPC, it is necessary to have a look at the above provisions, which read thus: Section 81: Act likely to cause harm but done without criminal intent and to prevent other harm- Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property. Explanation - It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm. Illustrationsa) A, the captain of a steam vessel, suddenly and without any fault or negligence o his part, finds himself in such a position that, before he can stop his vessel, he must inevitably run down a boat B, with twenty or thirty passengers onboard, unless he changes the course of his vessel, and that, by changing his course, he must incur risk of running down a boat (c) with only two passengers on board, which he may possible clear. Here, if A alters his course without any intention to run down the boat C and in good faith for the purpose of avoiding the danger to the passengers in the boat B, he is not guilty of an offence, though he may rundown the boat C by doing an act which he knew was likely to cause that effect, if it be sound as a matter of fact that the danger which he intended to a void was such as to excuse him in incurring the risk of running down C. B) A, in a great fire, pulls down houses in order to prevent the conflagration from spreading. He does this with the intention in good faith of saving human life property. Here, if it be found that the harm to be prevented was of such nature and so imminent as to excuse A s act, A is not guilty of the offence. It recognizes the doctrine of self-preservation. It gives legislative sanction to the doctrine of salvage common in the law of all nations. In fact it is a doctrine of necessity which has, since the sacrifice of Iphigenia, found ready recognition in all mundane transactions. It sanctions doing of an evil so that good may come. It permits the infliction of a lesser evil in order to avert a greater evil. The only thing that is required is that the act done should be without criminal intention. The Supreme Court in BASDEO v. STATE OF PEPSU made a distinction in between intention and knowledge and observed that motive is something which prompts a man to form an intention. Intention is a state of mind consisting of desire that certain consequences shall follow from party s physical act. The distinction in between motive, intention and knowledge can be stated in the language of Supreme Court in Baseo s case (supra 3) as follows. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things. ( 11 ) IN Dr. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things. ( 11 ) IN Dr. Hari Singh Gour s Penal Law of India 11th Edition Volume No. 1 at note 9 page No. 606 it was stated as under. As has been already remarked, this section is grounded on the wide doctrine of necessity. It is the universal law that all good involves some expectancy of an abundant harvest is probably appealing to the same law of necessity as led Agamemnon to make the sacrifice of Iphigenia. The captain who capsizes a boat to save his own, a person who dismantles houses to arrest the progress of fire, appeal to the same law of necessity as those who deal blow for blow, or even take away another s life to save their own. Necessity vincit legem. How for the Indian Legislature has though fit to sanction this doctrine will be manifested from this section. It places no limit on the extent of the injury that may be caused and the question may be whether this injury may extent to the slaughter of a fellow being to assuage hunger. Such a question arose in England and it forms the leading case on the point. . . . It laid down that the law does not recognize in man the absolute necessity of preserving his life and that as regards morality, it recognizes the duty of sacrificing it for the sake of saving another life. It is further admitted that there was in this case no such excuse unless the killing was justified by what has been called necessity. But the temptation to the act which existed there was not what the law has ever called necessity, nor is it to be regretted. It was also observed in the said case that to preserve one s life is generally speaking a duty, but it may be the plainest and highest duty to sacrifice it. War is full of instances in which it is a man s duty not to live but to die. It was also observed in the said case that to preserve one s life is generally speaking a duty, but it may be the plainest and highest duty to sacrifice it. War is full of instances in which it is a man s duty not to live but to die. The duty in the case of shipwreck, of a captain to his crew, of the crew to the passengers of soldiers to women and children. These duties impose on men the moral necessity not of the preservation, but of the sacrifice of their lives for others. ( 12 ) THE illustrations under Section 81 IPC also make it clear that in order to avoid major harm a minor harm can be caused without any intention. The accused is entitled to invoke the principle laid down under the maxim vincit legem which has been met with approval under Section 81 IPC. This aspect has not been considered or adverted to by both the Courts below. In that view of the matter, this Court is inclined to exercise its revisional jurisdiction for consideration of the above aspect. In the instant case, the petitioner-accused gave dash to the stationed vehicle while preventing head on collision in between his vehicle and the vehicle coming in the opposite direction. Had there been a collision, it would have caused more damage and loss of lives. Further, nobody expects a vehicle to be stationed on the road itself. As already stated, there may be error of judgment as he has been driving the vehicle at speed, which is not prohibited on a national high way, and the speed of the vehicle is not specified or limited under any statute. ( 13 ) FOR the aforesaid reasons, this Court is of the view that this is a case where the principles of doctrine of necessity and error of judgment apply as adumbrated under Section 81 IPC and the accused is entitled to canvass the same and seek acquittal. In the circumstances, I hold that the petitioner is entitled for the benefit under the above provision. Hence, the conviction awarded and sentence imposed by the trial Court and confirmed by the appellate Court are set aside. The fine amount, if any paid, is ordered to be refunded. The criminal revision case is accordingly allowed.