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2005 DIGILAW 875 (AP)

Markapudi Krishna Rao v. State Of A. P.

2005-09-15

P.LAKSHMANA REDDY

body2005
( 1 ) THIS revision is filed against the conviction and sentence recorded against the revision petitioner in C. C. No. 71 of 1996, dated 7-4-1998 on the file of V metropolitan Magistrate, Vijayawada which was confirmed in Crl. A. No. 56 of 1998, dated 2-1-2003 on the file of VII Additional sessions Judge (Fast Track Court), Krishna at Vijayawada. ( 2 ) THE relevant facts in brief are as follows : ( 3 ) THE Sub-Inspector of Police, I Traffic police Station, Vijayawada filed this case against the revision petitioner-accused alleging that on 6-3-1996 at about 5. 10 p. m. , the accused drove the A. P. S. R. T. C bus bearing no. AAZ-8765 with high speed in a rash and negligent manner near Ashok pillar without blowing horn on N. H. 9 road and dashed against the cyclist going ahead of the bus on account of which the cyclist fell down and the rear tyres of the bus dragged him to a distance causing grievous injuries and later died and the same was witnessed by the traffic police constable who was on duty near the scene of offence and thereby committed an offence punishable under section 304-A I. P. C. ( 4 ) ON the said allegations, the learned magistrate took the case on file and after observing all formalities, conducted trial and during the trial, the prosecution examined the traffic constable who reported the matter to the police as PW-1 besides examining 8 more witnesses as PWs. 2 to 9 and exhibited Exs. P-1 to P-13. No evidence was adduced on behalf of the accused, but he described the incriminating evidence found against him as false. Considering the evidence adduced on behalf of the prosecution and denial of the accused the learned Magistrate placing reliance on the evidence of PWs. 1, 3 and 6 found the accused guilty of the offence punishable under Section 304-A i. P. C. , convicted him and sentenced him to suffer simple imprisonment for a period of six months and to pay a fine of Rs. 5,000/- in default to suffer simple imprisonment for three more months. 1, 3 and 6 found the accused guilty of the offence punishable under Section 304-A i. P. C. , convicted him and sentenced him to suffer simple imprisonment for a period of six months and to pay a fine of Rs. 5,000/- in default to suffer simple imprisonment for three more months. ( 5 ) AGGRIEVED by the same, the accused preferred an appeal before the metropolitan Sessions Judge, Vijayawada who made over the same to the VII additional Sessions Judge (Fast Track court), Krishna at Vijayawada who after due hearing confirmed the conviction and sentence passed by the trial Court. ( 6 ) AGGRIEVED by the same, the present revision is filed contending that the judgments of the Courts below are contrary to law, weight of evidence and probabilities of the case and the Courts below miserably failed in arriving to a correct conclusion on the evidence adduced on behalf of the prosecution and also failed to reject the evidence of PW-1. The Courts below ought to have considered the evidence of PWs. 2, 3 and 4. The appellate Court without going into the validity of the evidence adduced on behalf of the prosecution in a stereo typed manner confirmed the judgment of the trial Court and the Courts below failed to notice the non-examination of Motor vehicle Inspector. The revision petitioner prayed for setting aside the conviction and sentence passed against him by allowing this revision. ( 7 ) DURING the course of hearing of the revision, the learned Counsel for the revision petitioner reiterated the contentions raised in the grounds of revision. He submitted that except PW-1, the police constable and PW-9, the investigating officer, all other witnesses turned hostile to the prosecution and that even according to prosecution PW-6 is an eyewitness to the accident and his evidence belies the evidence of PW-1. But the Courts below ignored the evidence of PW-6 and that the appellate court erroneously held that the evidence of pw-6 supported the case of the prosecution though PW-6 s evidence does not support the case of the prosecution. But the Courts below ignored the evidence of PW-6 and that the appellate court erroneously held that the evidence of pw-6 supported the case of the prosecution though PW-6 s evidence does not support the case of the prosecution. He further submitted that there are no crush injuries found on the deceased and that if really the deceased was hit by the bus from his behind and ran over the deceased, there should have been crush injuries and that on the other hand the injuries were found on the entire right side of the deceased which supports the evidence of PW-6 that the deceased himself fell down from the cycle on the rear side of the bus. He further submitted that there is discrepancy in the evidence of PWs. 1 and 9 regarding the distance from where PW-1 was standing to the place of accident. According to PW-1 he witnessed the accident from a distance of ten feet while according to investigating officer the distance was 25 feet. He further submitted that there is absolutely no evidence to prove the alleged rash and negligent act on the part of the driver of the bus and that the evidence of conductor pw-3 goes to show that it is only on account of cries from the passengers sitting rear side, the bus was stopped and then they got down and found the cyclist with injuries. He further submitted that the circumstantial evidence noted in the form of observation report clearly goes to show that there was no scope for PW-1 of witness the exact manner in which the accident took place and further the medical evidence also belies the solitary testimony of PW-1 and therefore, the appreciation of evidence by the Courts below is perverse and hence it warrants interference by this Court. ( 8 ) ON the other hand, the learned public Prosecutor supported the judgments of the Courts below. ( 8 ) ON the other hand, the learned public Prosecutor supported the judgments of the Courts below. He submitted that pw-1 is the traffic constable and he immediately rushed to the scene of offence and took the injured to the Hospital and that his presence at the scene of offence is spoken to by the conductor and that there was no reason for PW-1 to speak false against the accused and therefore the courts below rightly placed reliance on the evidence of PW-1 and rightly held that the revision petitioner guilty of offence punishable under Section 304-A I. P. C. and hence there is no need for interference by this Court. ( 9 ) THE point that arises for determination in this revision is : whether the conviction and sentence recorded against the revision petitioner by the Courts below are sustainable in law? point : ( 10 ) AS seen from the evidence adduced on behalf of the prosecution, PW-1 is the traffic constable, PW-2 is the alleged cbconut vendor at the place of offence. PW-3 is the conductor of the bus, PW-4 is also another coconut vendor at the place of accident. PW-5 is the doctor who conducted autopsy over the deadbody of the deceased. PW-6 is the owner of the tea stall situated on the north of the place of the accident. PW-7 is the son of the deceased. PW-8 is one of the panchayatdars for the observation panchanama and also one of the alleged mediators to the inquest. PW-9 is the Assistant Sub-Inspector of police of Traffic Police Station who investigated and registered the case at about 6. 30 p. m. , on the report given by pw-1 and investigated. PWs. 2, 3, 4 and 6 were treated hostile by the prosecution. According to the prosecution, PWs. 1 to 4 and 6 are the eye-witnesses to the incident and out of them only the police constable spoke about the alleged rash and negligent driving on the part of the accused. The other witnesses did not state anything against the accused. On the other hand, the evidence of PW-3-conductor and PW-6-tea stall owner indirectly supported the accused. 1 to 4 and 6 are the eye-witnesses to the incident and out of them only the police constable spoke about the alleged rash and negligent driving on the part of the accused. The other witnesses did not state anything against the accused. On the other hand, the evidence of PW-3-conductor and PW-6-tea stall owner indirectly supported the accused. Because according to PW-3 on reaching near Ashok pillar while he was issuing tickets in the bus, he heard cries from the back side of the bus and immediately the accused stopped the bus and then he got down and saw the cyclist lying with injuries. Similarly, PW-6, the tea stall owner stated that the accident occurred in front of his tea stall and at that time the deceased was going on bicycle from western side towards East and at the same time one bus came from the same side and the deceased could not control his speed and fell down on the road and the bus ran over him. He did not speak any rash and negligent act on the part of the driver of the bus. So, the only evidence available for the prosecution to prove the rash and negligent act on the part of the driver of the bus is the evidence of traffic constable PW-1. It is true that the presence of PW-1 at the Ashok pillar controlling the traffic at the time of accident cannot be disputed in view of the evidence of PW-3 the conductor that after he got down, he saw the traffic constable near the injured. Merely because the traffic constable was present controlling the traffic near Ashok pillar by itself is not sufficient to hold that he could witness the exact manner in which the accident took place. So the evidence of PW-1 is to be scrutinized with reference to the circumstantial and medical evidence because it is not safe to place reliance on the solitary testimony unless it is corroborated either by oral evidence or the circumstantial evidence especially when the independent evidence of PW-6 belies the version of PW-1. In the instant case, as seen from the observation report Ex. P-8 and the sketch map Ex. P-12 the road at the accident place is of 60 feet wide with foot-path on both sides and the bus was going from West to East. In the instant case, as seen from the observation report Ex. P-8 and the sketch map Ex. P-12 the road at the accident place is of 60 feet wide with foot-path on both sides and the bus was going from West to East. The distance between the northern side footpath and the rear tyre of the bus was 13 feet and the Ashok pillar is on the south-East side of the bus at a distance of 20. 6 feet from the right front tyre of the bus and the distance between rear right side tyre of the bus and the Ashok pillar was 25 feet. The cycle in which the deceased was riding was at a distance of 20 feet from the left rear tyre on the western side and to the north of that place, there is a hotel of PW-6-Krishna besides choultry and temple etc. There were no skid marks or tyre marks on the road. From the observations noted in the observation report it is clear that the driver stopped the bus within a distance of 20 to 25 feet. Admittedly, the place of accident is near traffic point where constable was regulating the traffic. If really, the driver was driving the bus with high speed of 40 to 50 kms. per hour as stated by PW-1 it would not have been possible for the driver to stop the bus within a short distance of 25 to 30 feet without applying the brakes. The very fact that there were no tyre marks or skid marks indicate that the driver did not apply sudden brakes and yet he could stop the bus within a distance of 30 feet. This circumstance clearly belies the evidence of pw-1 that the driver was driving the bus with high speed of 40 to 50 kms. per hour. It is improbable also to believe that the driver could drove the bus at the speed of 40 to 50 kms. per hour while approaching the traffic point where the traffic constable was regulating the traffic. As seen from the observations, it is clear that the accident took place while overtaking the cyclist because the driver took the bus to a distance of 10 to 12 feet from the northern side footpath as obviously the cyclist was riding the cycle on the northern side of the road. As seen from the observations, it is clear that the accident took place while overtaking the cyclist because the driver took the bus to a distance of 10 to 12 feet from the northern side footpath as obviously the cyclist was riding the cycle on the northern side of the road. As seen from the post-mortem report the injuries found on the deceased were on the entire right side from top to bottom. It indicates that the deceased came into contact with the bus on his right side. It is also the case of the prosecution that the left rear tyres of the bus hit the deceased. So if really the deceased was hit from his behind from the front portion of the bus, there should have been hit marks on the front bumper of the bus and also hit marks on the back of the bicycle. There is no such evidence produced in this case. Further, PW-6 categorically says that while the bus was overtaking the cyclist, the cyclist fell down on account of his own fault and then the bus hit the deceased. In view of the injuries found on the right side from top to bottom, the version of pw-6 appears to be probable than the evidence of PW-1. When the accident took place after the front tyres of the bus passed the deceased, there was no scope for the traffic constable to observe the accident as the bus intervenes in between the cyclist and the traffic constable. It is only PW-6 whose hotel is situated exactly on the North of the place of the accident who can witness the accident. So, PW-6 s evidence, who is an independent witness, is to be given preference over the evidence of police constable-PW-1. When the evidence of PW-6 contradicts the evidence of PW-1 and when PW-6 says that the accident took place only on account of the fault of the deceased, the Courts below grossly erred in believing the evidence of PW-1 that the driver was driving the bus with high speed without blowing horn and then hitting the deceased from his behind without proper scrutiny. People may lie but not the circumstances. In accident cases top priority is to be given to the circumstantial evidence and the oral evidence is to be tested with reference to the circumstantial evidence. People may lie but not the circumstances. In accident cases top priority is to be given to the circumstantial evidence and the oral evidence is to be tested with reference to the circumstantial evidence. The Courts below failed to take into consideration the circumstantial evidence depicted in the observation report and the sketch. The very fact that the deceased was hit by rear tyres of the bus belies the evidence of PW-1. At any rate, it creates any amount of doubt whether there was any fault on the part of the driver of the bus. The evidence of conductor-PW-3 also goes to show that it was only when the rear side passengers raised cries, the driver stopped the bus. This evidence also supports the version that only the rear tyres of the bus hit the deceased and not the front portion of the bus. So when the deceased was hit by rear tyres of the bus, the driver of the bus cannot be found fault with. In my considered view the prosecution failed to prove beyond reasonable doubt that the accident took place on account of the rash and negligent act of the driver of the bus and the Courts below failed to scrutinize the evidence with reference to the circumstantial evidence and the medical evidence and simply placed reliance on the solitary evidence of PW-1. Curiously enough the appellate Court observed that the evidence of PW-6 also supports the case of the prosecution. When the evidence of PW-6 is to be effect that on account of the fault of the deceased, he fell down, it is not known as to how the evidence of PW-6 supports the case of the prosecution. The trial Court also observed that the evidence of PWs. 1, 3 and 6 supports the case of the prosecution. The Courts below did not properly read the evidence of PWs. 3 and 6 who did not state anything against the accused and they did not say that there was rash and negligent driving on the part of the driver and the driver was at fault for the accident. On the other hand, their evidence clearly goes to show that it was only on account of the fault of the deceased, he fell down near the rear tyres of the bus. On the other hand, their evidence clearly goes to show that it was only on account of the fault of the deceased, he fell down near the rear tyres of the bus. Therefore, it is clear that the appreciation of evidence by the Courts below is perverse and it resulted in miscarriage of justice. Hence, there is a need for interference by this Court. The conviction and sentence recorded against the revision petitioner are not sustainable in law and are liable to be set aside. Thus, this point is found accordingly. ( 11 ) IN the result, the criminal revision case is allowed. The conviction and sentence recorded against the revision petitioner in c. C. No. 71 of 1996, dated 7-4-1998 on the file of V Metropolitan Magistrate, Vijayawada which was confirmed in Crl. A. No. 56 of 1998 dated 2-1-2003 on the file of VII Additional sessions Judge (Fast Track Court), Krishna at Vijayawada are hereby set aside. The revision petitioner shall be set at liberty forthwith if he is not required in any other case and his bail bonds shall stand cancelled. The fine amount, if any, already paid by the revision petitioner shall be refunded to him.