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2012 DIGILAW 740 (KAR)

State v. Jaisingh

2012-09-03

K.N.KESHAVANARAYANA

body2012
JUDGMENT : K.N. Keshavanarayana, J. 1. In this appeal filed under Section 378(1) & (3) of Cr.P.C., the State has questioned the legality and correctness of the judgment and order dated 05.11.2004 passed by the Sessions Judge, Mandya, in Criminal Appeal No. 50/2002 allowing the said appeal and acquitting the respondent/accused of the charge levelled against him for offence punishable under Section 304-Aof IPC in reversal of the judgment and order dated 27.06.2002 passed by the Principal Civil Judge (Sr.Dn.) and JMFC, Srirangapatha in C.C. No. 27/1999. The respondent was chargesheeted by Srirangapatna police for the offences punishable under Sections 279, 337 and 304-A of IPC inter alia alleging that at about 4.30 pm on 04.03.1999, the accused, as driver of the bus bearing registration No. KA-09-F-2005 drove the said bus from Bangalore towards Mysore in a rash and negligent manner endangering human life and near Ganangoor Tittu, he dashed against the Ambassador Car bearing registration No. MYD-6305 coming from the opposite direction and caused the death of four inmates of the said car apart from injury to others. 2. The respondent/accused pleaded not guilty for the charges levelled against him. The prosecution examined PWs. 1 to 21 and relied on documentary evidence-Exs.P1 to P16. 3. As could be seen from the tenor of cross-examination of material witnesses, the defence of the accused was that, in the process of overtaking a mini lorry, which had been parked on the left side of the road in the direction in which the bus was proceeding, he took the bus to the right side of the road and even after seeing the same, the driver of the car proceeded further and dashed against the bus. Thus, according to the accused, the accident was due to the negligence of the driver of the car. 4. The learned Magistrate on assessment of the oral as well as documentary evidence held that the evidence of PWs. 1 to 3 & 5 who are eye-witnesses, being consistent and cogent as also the contents of spot mahazar and the sketch clearly establish that the accident was due to the rash and negligent driving of the bus by the accused and as a result of the collision, four inmates of the car died. 1 to 3 & 5 who are eye-witnesses, being consistent and cogent as also the contents of spot mahazar and the sketch clearly establish that the accident was due to the rash and negligent driving of the bus by the accused and as a result of the collision, four inmates of the car died. In the light of the said finding, the learned Magistrate convicted the accused for the offence punishable under Section 304-A of IPC and sentenced him to undergo rigorous imprisonment for one year and to pay fine of Rs. 2,000/- for the said offence. Aggrieved by the said judgment, the accused filed the appeal before the learned Sessions Judge, Mandya. 5. On re-appreciation of oral and documentary evidence, the learned Sessions Judge was of the opinion that the prosecution has failed to prove the guilt of the accused and consequently, the appeal was allowed, the judgment of conviction recorded by the trial Court was set aside, and the accused was acquitted of the charge levelled against him. Aggrieved by the said judgment of the Lower Appellate Court, the State is in appeal. 6. The learned Sessions Judge in the appeal reversed the said finding for the following reasons: i) PWs. 1 to 3 & 5 are closely related to the deceased persons, therefore, they are highly interested witnesses and their testimony cannot be relied on; ii) Nature of damages caused to the bus as well as to the car would suggest that the car hit the bus. iii) The witnesses have not spoken anything about the speed, about the number of vehicle that were moving on the road and also the distance at which the bus was sighted by them and also whether any effort was made by the driver of the car to avoid the accident. iv) The evidence of PWs. 1 to 3 & 5 is stereo type and therefore, no reliance can be placed on their evidence. v) As the evidence on record indicates that since eleven persons were travelling in the car, it was overloaded and on account of that, the driver could not control the vehicle, as such, it was the negligence on the part of the driver of the car, which was responsible for the accident. 7. Upon service of notice of this appeal, the respondent/accused entered his appearance through his advocate Sri. Sharanabasappa K. and Smt. Umadevi. 7. Upon service of notice of this appeal, the respondent/accused entered his appearance through his advocate Sri. Sharanabasappa K. and Smt. Umadevi. However, when the matter was listed for final hearing, none appeared on behalf of the respondent and there was no representation on his behalf. Therefore, this Court having regard to the fact that the appeal is already more than seven years old, appointed Sri. Mahesh Kiran Shetty, as Amicus Curiae to represent the respondent/accused. Heard both sides and perused the records secured from the trial Court. 8. Learned High Court Government Pleader contended that the judgment of the Lower Appellate Court is highly perverse and illegal for the reason that the learned Sessions Judge has failed to properly appreciate the oral evidence of PWs. 1 to 3 & 5 and has erroneously discarded their testimony on the ground that they are interested witnesses. He further contended that the findings recorded by the learned Sessions Judge that the car in question was over-loaded and this probabilises the defence theory that the accident was due to the negligence of the car driver is erroneous and this erroneous finding has been recorded as a result of improper reading of the evidence on record. He further contended that the finding of the learned Sessions Judge that the nature of the damage suffered by the car also probabilises the defence theory, is without any basis. He contended that the learned Sessions Judge in the judgment under appeal has not pointed-out as to how the findings recorded by the learned trial Judge are erroneous. Therefore, he contended that the judgment of the Lower Appellate Court is liable to be set aside and the judgment of the trial Court deserves to be restored. 9. On the other hand, Sri. Mahesh Kiran Shetty, learned Counsel, sought to justify the judgment of the Lower Appellate Court and contended that the learned Sessions Judge in exercise of his appellate power has re-appreciated the evidence and has found that the testimony of PWs. 1 to 3 and 5 is not convincing and acceptable for more than one reason and since the said finding of the learned Sessions Judge is just and reasonable, there are no reasons for interfering with the said finding. 1 to 3 and 5 is not convincing and acceptable for more than one reason and since the said finding of the learned Sessions Judge is just and reasonable, there are no reasons for interfering with the said finding. He further contended that the fact that 11 persons were travelling in the car is evident from the contents of the complaint lodged at the earliest point of time and therefore, the learned Sessions Judge is justified in holding that the car was over-loaded, as a result of which, the driver of the car lost control and he himself has rammed against the bus coming from the opposite direction. Therefore, he contended that the learned Sessions Judge is justified in holding that the accident was due to the negligence of the car driver and that the prosecution has failed to prove the negligence on the part of the driver of the bus. According to him, the findings recorded by the learned Sessions Judge does not suffer from any perversity or illegality warranting interference by this Court. Therefore, he sought for dismissal of the appeal. 10. In the facts and circumstance of the case, the points that arise for my consideration are, i) Whether the learned Sessions Judge is justified in reversing the judgment of the trial Court? ii) Whether the judgment of the Lower Appellate Court acquitting the respondent/accused suffers from any perversity or illegality warranting interference by this Court? 11. I have bestowed my anxious considerations to the submissions made on both sides. 12. As noticed supra, according to the case of the prosecution, the accident occurred as a result of collision between the KSRTC bus bearing registration No. KA-09-F-2005 driven by the respondent/accused and Ambassador Car bearing registration No. MYD-6305 at about 4.30 pm on 04.03.1999 near Ganangoor Tittu of Bangalore-Mysore State High Way. 13. As could be seen from the tenor of the cross-examination of the material witnesses by the Counsel for the accused during the trial, the respondent/accused has not disputed the fact that at the relevant point of time, he was the driver of the KSRTC bus involved in the accident. The accused has also not disputed the accident occurring as a result of collision between the bus driven by him and Ambassador Car which came from opposite direction. The accused has also not disputed the accident occurring as a result of collision between the bus driven by him and Ambassador Car which came from opposite direction. The fact that the accident occurred on the northern side of the road running East to West while the bus was proceeding from East to West is also not in serious dispute. In the cross-examination of PWs. 1 to 3 & 5, who are stated to be the eye-witnesses to the accident, it is suggested that a mini-lorry had been parked on the left side of the road running from East to West i.e.., from Bangalore side towards Mysore, the direction in which the bus was proceeding. It is further suggested to these witnesses that while the accused was overtaking the said mini-lorry, the car driver came at a high speed from the opposite direction and dashed against the bus. The suggestions put to PW. 1 in this regard reads as under: XXX XXX XXX The suggestion put to PW.2 in the cross-examination was to the following effect: XXX XXX XXX The suggestion put to PW.3 in the cross-examination is to the following effect: XXX XXX XXX The following is the suggestion put to PW.5 in the cross-examination:-- XXX XXX XXX Thus, the accused has not disputed the collision between the bus driven by him and the Ambassador car which came from the opposite direction and thereby resulting in the accident. 14. Ex. P.2 is the spot-mahazar and Ex. P. 14 is the rough sketch of the scene of occurrence drawn by the Investigating Officer during investigation. Perusal of the cross-examination of the material witnesses indicates that the accused has not disputed the correctness of the contents of Exs.P2 and P14. Of course, the two independent witnesses examined to prove Ex. P2-spot mahazar have not supported the case of the prosecution. Nevertheless, the Investigating Officer who stated to have drawn spot-mahazar and the sketch, in his evidence has reiterated the said fact. Though the Investigating Officer has been cross-examined, nothing is elicited to discredit his testimony with regard to the drawing of spot-mahazar and also the sketch. Merely because the two independent witnesses to the spot-mahazar have not supported the case of the prosecution and have been treated hostile, the testimony of the Investigating Officer examined as PW. 18 cannot be discarded. There are no reasons for PW. Merely because the two independent witnesses to the spot-mahazar have not supported the case of the prosecution and have been treated hostile, the testimony of the Investigating Officer examined as PW. 18 cannot be discarded. There are no reasons for PW. 18 to create documents with a view to get the conviction against the respondent/accused. Therefore, from the evidence of PW. 18, the contents of Ex. P.2 and Ex. P. 14 and have been proved satisfactorily. 15. As could be seen from these two documents, the width of the tar-road at the place of incident was 21 ft. and the mud-roads are 5 ft. wide on either side. The bus was travelling from East to West while the car came from West to East. The actual collision has occurred on the extreme edge of the tar-road on northern side. The bus, which ought to have proceeded on the southern side of the road while proceeding from East to West, appears to have gone to the extreme northern side i.e., on to the wrong side and has collided with the vehicle coming from opposite direction. The car driver was proceeding on the correct side namely on the northern side of the road while proceeding from West to East. The contents of spotmahazar as well as the sketch gains corroboration from the very suggestion put to the material witnesses during cross-examination as extracted above. Even according to the accused, in order to over-take a minilorry parked on the road, he moved the lorry on to the right side. It is based on the oral evidence of PWs. 1 to 3 & 5 as well as the contents of the spot-mahazar and the sketch, the learned Magistrate held that the prosecution has proved the guilt of the accused for the offence punishable under Section 304-A of IPC. 16. As noticed supra, during cross-examination of PWs. 1 to 3 & 5, there was no suggestion that they have not witnessed the accident, on the other hand, the suggestion was that all of them along with the deceased persons and others were travelling in one car. The learned Sessions Judge proceeded to hold that the car was overloaded only on the basis of the suggestions put to witnesses during the cross-examination. 17. Reading of evidence of PWs. The learned Sessions Judge proceeded to hold that the car was overloaded only on the basis of the suggestions put to witnesses during the cross-examination. 17. Reading of evidence of PWs. 1 to 3 and 5 as a whole indicates that they along with the deceased persons were travelling in two cars. PWs. 1 to 3 & 5 in their evidence before the trial Court have consistently stated that they in all about eleven persons were travelling from Mysore towards Mandya in two cars. They have also furnished the registration numbers of both the cars. The car bearing registration No. MYD-6305 was stated to be proceeding ahead while other car was going behind. In the car which met with accident, there were in all six persons including the driver, while remaining five persons were in the other car following the same. In the cross-examination of each of these witnesses, it has been suggested to them that all eleven persons were travelling in the same car. However, they have denied the said suggestions. Perusal of the judgment of the Lower Appellate Court does not indicate that the evidence of these witnesses that they were proceeding in two cars has not at all been even referred to. 18. No doubt in the complaint lodged by PW. 1 marked as Ex. P. 1, all the eleven persons were stated to be proceeding in the Ambassador car bearing registration No. MYD-6305. The said portion in Ex. P.1 has been marked as Ex.D 1. Rejection of the evidence of PWs. 1 to 3 & 5 by the learned Sessions Judge was not on the ground that PW. 1 in his complaint has not disclosed about they proceeding in two cars. There is no reference to the contents of Ex. P. 1 in the judgment of the Lower Appellate Court. Assuming for the purpose of argument that as stated in Ex.D1, 11 persons were travelling in Ambassador car, there is absolutely no circumstance to indicate that as a result of the over-load, the driver had lost control. As could be seen from Ex.D 1, seven persons were adults while four were small children. Therefore, there was no basis for the learned Sessions Judge to come to the conclusion that the car was over-loaded and as a result of the same, the car driver lost control over the vehicle. As could be seen from Ex.D 1, seven persons were adults while four were small children. Therefore, there was no basis for the learned Sessions Judge to come to the conclusion that the car was over-loaded and as a result of the same, the car driver lost control over the vehicle. No doubt, PWs.1 to 3 & 5 are close relatives, therefore, they may be termed as interested witnesses. It is well-settled law that the testimony of a witness cannot be discarded on the ground that he is closely related to the victim or that he is interested. However, the evidence of such witnesses will have to be closely scrutinized. 19. In a case of this nature, the possible witnesses would be the close relatives for the reason that all of them were stated to be proceeding in one or two cars. Therefore, on the ground that they are interested witnesses, their testimony could not be rejected. 20. In a prosecution under Section 304-A of IPC, the speed of the vehicle is not of much consequence. What is necessary to be found by the Courts is whether the prosecution has established that the accused person drove the vehicle in a rash and negligent manner so as to endanger the human life. Therefore, merely because the witnesses have not stated the speed in which the bus was driven and at what distance they noticed the bus coming from the opposite direction are not relevant factors, and for that reasons their testimony could not be discarded. Having regard to the fact that the accused had not disputed the occurrence of the accident as a result of the collision between the bus driven by him and the car which came from the opposite direction, the speed with which the accused drove the bus was certainly not a significant factor. Therefore, in my opinion, the learned Sessions Judge is not justified in discarding the testimony of PWs. 1 to 3 & 5. Reading of the evidence of PWs. 1 to 3 & 5 clearly establishes that the bus which came from the opposite direction moved on to the extreme right side i.e., to the wrong side and dashed against the car. Their evidence as to the manner in which the accident occurred gains corroboration from the contents of spot-mahazar and the sketch. 21. 1 to 3 & 5 clearly establishes that the bus which came from the opposite direction moved on to the extreme right side i.e., to the wrong side and dashed against the car. Their evidence as to the manner in which the accident occurred gains corroboration from the contents of spot-mahazar and the sketch. 21. Yet another reasoning adopted by the learned Sessions Judge appears to be highly fallacious. The learned Sessions Judge has opined that since the entire front portion of the car is completely damaged whereas only the right side front portion of the bus is damaged, it suggests that the car has hit the bus and not the bus hit the car. It is not forthcoming as to what is the basis for such kind of finding. As per the IMV report, the right front corner of the bus was severely damaged, whereas the front portion of the car as well as the top of the car was completely damaged. This shows the magnitude of the impact. If the car had hit the bus, the damage to the bus should have been to the entire width of the car and on the front portion of the bus. On the other hand, what appears to be that the front right side of the bus has hit the car and thereafter the car appears to have rolled. Other wise there was no reason for the top of the car being completely damaged. 22. According to the learned Sessions Judge, as the prosecution has not produced the photographs said to have been taken after the incident, it has suppressed the material evidence. In my opinion, the non-production of the photographs has not in any way affected the case of the prosecution as it would have only shown the nature of the damage suffered by both the vehicles. With regard to the nature and damage suffered by each vehicle, report of the Inspector of IMV is produced. Therefore, nonproduction of the photographs is of no consequence and on that ground the case of the prosecution could not have been doubted. In fact, the learned Magistrate, during the course of the judgment has noticed that the accused himself has produced a copy of the Kannada Newspaper in which the photograph of both the vehicles involved in the accident had been published. In fact, the learned Magistrate, during the course of the judgment has noticed that the accused himself has produced a copy of the Kannada Newspaper in which the photograph of both the vehicles involved in the accident had been published. The said photograph published in the newspaper, which is available in the case records, would indicate the manner in which the car has suffered the damage and this could be possible only by bus hitting the car and not vice -versa. 23. The expressions 'Rash and Negligence' have not been defined in the Penal Code. However, in catena of decisions, the Apex Court has explained the meaning of these expressions. Negligence is generally defined to be, "a breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of the human affairs would do or doing something which a prudent and reasonable man would not do." 24. In Balachandra Waman Pathe v. The State of Maharashtra reported in 1968 ACJ 38 , the Apex Court has explained the distinction between rash act and negligent act in para 11 as under: "11. An offence under Section 304-A Indian Penal Code may be committed either by doing a rash act or a negligent act. There is a distinction between a rash act and a negligent act. In the case of a rash act as observed by Staight, J. in Idu Beg's case [ILR 3 ALL. 776] the criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. Negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Again as explained in Nidamarti Negaghushanam's case [7 Mad. Negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Again as explained in Nidamarti Negaghushanam's case [7 Mad. H.C.R. 119], a culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and if he had he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection." 25. In Jacob Mathew v. State of Punjab and Another, reported in (2005) 6 SCC 1 , the Apex Court while considering the case on medical negligence has stated as to what constitutes negligence as a tort and as a crime in paras 12 to 14 as under: "12. The term "negligence" is used for the purpose of fastening the defendant with liability under the civil law and, at times, under the criminal law. It is contended on behalf of the respondents that in both the jurisdictions, negligence is negligence, and jurisprudentially no distinction can be drawn between negligence under civil law and negligence under criminal law. The submission so made cannot be countenanced inasmuch as it is based upon a total departure from the established terrain of thought running ever since the beginning of the emergence of the concept of negligence up to the modern times. Generally speaking, it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. To fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law. The essential ingredient of mens rea cannot be excluded from consideration when the charge in a criminal Court consists of criminal negligence. To fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law. The essential ingredient of mens rea cannot be excluded from consideration when the charge in a criminal Court consists of criminal negligence. In R. v. Lawrence [(1981) 1 ALL ER 974] Lord Diplock spoke in a Bench of five and the other Law Lords agreed with him. He reiterated his opinion in R. v. Caldwell [(1981) 1 ALL ER 961] and dealt with the concept of recklessness as constituting mens rea in criminal law. His Lordship warned against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being "subjective" or "objective", and said: (All ER p.982e-f) "Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so alight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting 'recklessly' if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such risk, he nevertheless goes on to do it." 13. The moral culpability of recklessness is not located in a desire to cause harm. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. There is, in other words, a disregard for the possible consequences. The consequences entailed in the risk may not be wanted, and indeed the actor may hope that they do not occur, but this hope nevertheless fails to inhibit the taking of the risk. Certain types of violation, called optimising violations, may be motivated by thrill-seeking. These are clearly reckless. 14. The consequences entailed in the risk may not be wanted, and indeed the actor may hope that they do not occur, but this hope nevertheless fails to inhibit the taking of the risk. Certain types of violation, called optimising violations, may be motivated by thrill-seeking. These are clearly reckless. 14. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. xxx" Again in the case of Rathnashalvan v. State of Karnataka reported in (2007) 3 SCC 474 , The Apex Court has considered as to what constitutes rashness and negligence within as occurring in Section 304-A IPC in paras 7 to 9 of the judgment as under: "7. Section 304-A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 304-A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused. 8. As noted above, "rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted. 9. The distinction has been very aptly pointed out by Holloway, J. in these words: "Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness (luxuria). Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and that if he had he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection." (See Nidamarti Nagabhushanam, In re (7 Mad HCR 119), Mad HCR pp. 119-20)). 26. The imputability arises from the neglect of the civic duty of circumspection." (See Nidamarti Nagabhushanam, In re (7 Mad HCR 119), Mad HCR pp. 119-20)). 26. In the case on hand, from the oral and documentary evidence it is clearly established that the accused as driver of the KSRTC bus, while proceeding from East to West instead of proceeding on the southern side of the road had gone on to the extreme northern side and has dashed against the car coming from the opposite direction. 27. Except suggesting to the witnesses that there was a mini-lorry parked on the left side of the road and therefore, he moved on to the right side of the road, the accused has not produced any evidence to substantiate such suggestions. Mere suggestions in the cross-examination are not substantive evidence. The accused did not come-out with any such kind of explanation during his examination under Section 313 of Cr.P.C. nor examined himself as a witness. Assuming for the purpose of argument that a mini-lorry had been parked on the left side of the road and therefore, the accused was required to move on to the right side of the road to pass the parked vehicle, it was necessary on his part to see as to whether his act of over-taking would cause endanger to the person or to the vehicle coming from the opposite direction or from any direction, and if any vehicle was coming from opposite direction, he could safely pass through the parked mini-lorry and he could venture of over-taking it. In this regard it is relevant to refer to Regulation-6 of the Rules of Road Regulations 1989 framed by the Central Government in exercise of its power under Section 118 of the M.V. Act, which came into force from 01.07.1989. According to this Regulation, 'the driver of a motor vehicle shall not pass a vehicle travelling in the same direction as himself, if his passing is likely to cause inconvenience or danger to other traffic proceeding in any direction". 28. In the case on hand, the accused without seeing as to whether he could safely over-take the parked mini-lorry and proceed further safely, appears to have taken the bus to the right side of the road and in the process, has hit the car, which was coming from the opposite direction by keeping to its correct side of the road. In the case on hand, the accused without seeing as to whether he could safely over-take the parked mini-lorry and proceed further safely, appears to have taken the bus to the right side of the road and in the process, has hit the car, which was coming from the opposite direction by keeping to its correct side of the road. Thus, the accused without taking proper care or a caution, when the mini-lorry was found parked in the left side of the road, unmindful of the car coming from the opposite direction, proceeded further and has dashed against the car which came from the opposite direction. The accused ought to have stopped the vehicle since the mini-lorry, according to him had been found parked on the left side of the road and he could not have expected the car which was coming from the opposite direction keeping to its correct side of the road to stop so as to enable the bus driver to over-take the mini-lorry and then proceed further. Thus, from the above, it is clear that the accused did not take such care and caution, which a prudent man required to take in the facts and circumstances of the case. Therefore, the facts and circumstances of the case clearly indicate that there was culpable rashness and negligence on the part of the accused and he did not act as a prudent and reasonable driver, in the said circumstances. Therefore, having regard to the evidence on record, the learned Sessions Judge is not justified in holding that the accident was due to the negligence of the car driver. There was absolutely no basis for such finding. The finding of the learned Sessions Judge that the prosecution has not proved the guilt of the accused is highly perverse as the learned Sessions Judge has discarded the testimony of the material witnesses on erroneous grounds. Therefore, the judgment of the Appellate Court reversing the judgment of conviction recorded by the trial Court is perverse and illegal. It suffers from several infirmities, therefore, it cannot be sustained. The learned Sessions Judge is not justified in acquitting the respondent/accused. 29. Having regard to the evidence on record, the learned Magistrate is justified in convicting the respondent/accused. Therefore, the judgment of the Lower Appellate Court requires to be set aside the judgment of the trial Court deserves to be restored. The learned Sessions Judge is not justified in acquitting the respondent/accused. 29. Having regard to the evidence on record, the learned Magistrate is justified in convicting the respondent/accused. Therefore, the judgment of the Lower Appellate Court requires to be set aside the judgment of the trial Court deserves to be restored. In the result, the appeal is allowed. The judgment and order dated 05.11.2004 passed by the learned Sessions Judge, Mandya, in Criminal Appeal No. 50/2002, is hereby set aside. The judgment of conviction recorded by the trial Court is restored and is hereby confirmed. However, in modification of the order of sentence passed by the trial Court the respondent/accused is sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs. 10,000/-, in default to pay fine, to undergo simple imprisonment for three months. The respondent/accused is directed to surrender himself before the trial Court forthwith and upon such surrender, the trial Court shall commit him to prison to serve the sentence. In case of failure to surrender, the trial Court shall take necessary steps to secure his presence and to commit him to the prison for the purpose of serving sentence. The fee of Amicus Curiae is fixed at Rs. 5,000/-, which shall be paid by the State.