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2023 DIGILAW 607 (AP)

Nagalla Rayapa v. State of A. P.

2023-03-20

V.R.K.KRUPA SAGAR

body2023
ORDER : Revision petitioner is a driver of a city bus. He was found guilty for the offence under Section 304-A I.P.C. and was convicted and sentenced to suffer Simple Imprisonment for one year and pay a fine of Rs.5,000/- with a default sentence of Simple Imprisonment for four months. His driving licence was ordered to be cancelled for a period of two years. This was the judgment of learned IV Additional Junior Civil Judge, Guntur in C.C.No.338 of 2007 by its judgment dated 11.07.2008. This revision petitioner questioned the correctness of it in his Criminal Appeal No.257 of 2008. That was duly heard and decided by learned I Additional District and Sessions Judge, Guntur by a judgment dated 17.04.2009. Learned Additional Sessions Judge agreed with the trial Court findings on all aspects and dismissed the appeal. Questioning the legality of it, the present revision is filed under Sections 397 and 401 Cr.P.C. stating that identity of him as a driver was not established and negligence attributed to him was also not established by evidence, yet erroneous findings were recorded by both the Courts below. The conclusions reached were arbitrary and sought for his acquittal by upsetting the impugned judgments. 2. By an order dated 03.06.2009 in Crl.R.C.M.P.No.437 of 2009 this Court ordered suspension of execution of sentence and released him on bail. Thereafter this matter was listed for hearing on several occasions but there was no representation for revision petitioner. In terms of Section 403 Cr.P.C. this Court proceeded further. For respondent-State, learned Special Assistant Public Prosecutor argued that the findings of both the Courts below are correct on facts and the judgments rendered by them do not deserve any interference. 3. Considering the material on record the point that falls for consideration is : “Whether the Courts below were arbitrary in appreciation of evidence in reaching conclusions and that there was no material proving the guilt of the revision petitioner beyond reasonable doubt and yet he was convicted? 4. Point: Sri Shaik Magbul allegedly died on 08.06.2007 out of injuries sustained in a motor vehicle accident. The offending vehicle is stated to be a city bus bearing registration No.AP 7 T 3669 in route No.27. This revision petitioner was stated to be the driver of the said bus at the material point of time. 4. Point: Sri Shaik Magbul allegedly died on 08.06.2007 out of injuries sustained in a motor vehicle accident. The offending vehicle is stated to be a city bus bearing registration No.AP 7 T 3669 in route No.27. This revision petitioner was stated to be the driver of the said bus at the material point of time. The allegation was that in the said bus Sri Shaik Magbul and several other passengers were travelling and at 10:00 P.M. in the night the bus reached a turning near Venkateswara Vignana Mandir, Zinna Tower Center, Guntur. The bus stop was a little ahead of this spot. The allegation is that at the road turning the bus stopped and one passenger got down and Sri Shaik Magbul was also getting down from the bus, but this accused without minding it moved the bus and the deceased fell down and rear wheels ran over him. People in the bus and outside the bus raised hue and cry and to that the accused allegedly reversed the bus and in the process once again ran over the body of Sri Shaik Magbul. In this incident Sri Shaik Magbul (hereinafter referred to as ‘the deceased’) suffered serious injuries and in a pool of blood died at the spot. It is on these allegations this revision petitioner was prosecuted. 5. Defence taken up in both the Courts below as well as here is that the revision petitioner was not the driver of that bus at the material point of time and he was neither negligent nor rash in driving the bus and he had no role to play in the unfortunate death of the deceased. 6. In the light of the above versions on both sides, prosecution was directed to prove its case. It examined PWs.1 to 13 and got marked Exs.P.1 to 12. There was no evidence led by defence. Learned trial Court recorded that PWs.1, 3, 7 and 8 are relatives of the deceased and they were not witnesses to the incident and on getting information about the incident they came and they identified the dead body. PW.1 lodged Ex.P.1 written information and PW.12-Head constable registered and issued F.I.R. as per Ex.P.9. There was no evidence led by defence. Learned trial Court recorded that PWs.1, 3, 7 and 8 are relatives of the deceased and they were not witnesses to the incident and on getting information about the incident they came and they identified the dead body. PW.1 lodged Ex.P.1 written information and PW.12-Head constable registered and issued F.I.R. as per Ex.P.9. Two points that fell for consideration before the trial Court -whether the evidence on record established beyond reasonable doubt that it was this revision petitioner who was driving the bus at the material point of time. Whether it was his rash or negligent driving that was the direct cause of death of Sri Shaik Magbul/deceased. The defence of the accused was one of total denial. It was in that context the trial Court was invited to scrutinize the evidence and record its findings. The fact that Sri Shaik Magbul died at the spot as bus ran over him was not in dispute. The offending bus was inspected by Motor Vehicle Inspector and he issued Ex.P.10 report giving his opinion that the mechanical condition of the bus was perfect and death was not because of any mechanical defect and thus it lent support to the version of prosecution that the death was out of human failures and not because of machine failures is one aspect of the matter which is also not in dispute. 7. Coming to the allegation whether this revision petitioner was the driver of the bus or not, prosecution examined certain witnesses. PW.2 is a fellow passenger in the bus and in his evidence he said that he and the deceased were travelling in the bus together and he witnessed the incident. In his evidence he gave the registration number of the vehicle. At para No.7 in the impugned judgment the trial Court observed that this witness did not identify the accused as the driver. PW.4 is the conductor of the bus. In his evidence he said that accused was not the driver of the crime bus. PW.5 is the cleaner of the crime bus and he also stated that accused was not the driver of the crime bus. PW.4 is the conductor of the bus. In his evidence he said that accused was not the driver of the crime bus. PW.5 is the cleaner of the crime bus and he also stated that accused was not the driver of the crime bus. PW.13 was the very owner of this bus and in his evidence he stated that at the material point of time one Babu Rao was deputed as driver of the bus and this accused was not the driver of the bus. 8. The above are the only witnesses who testified to identify the accused and they all stated that the accused was not the driver of the bus. Learned trial Court observed that these witnesses, with a view to save the accused, spoke falsehood and the fact that the driver and cleaner did not speak this accused as the driver itself is a fact that convinced the Court to conclude that accused was the driver of the crime bus. Thus for not identifying the accused, trial Court came to a conclusion opposite to what was deposed. 9. PW.12 the Head Constable in his evidence stated that the incident occurred during night time at 10:00 P.M. and after registration of F.I.R. it was during that mid night he went to the spot and posted a guard and came back to station and on the next day/09.06.2007 in the morning time he once again reached the spot of accident and found the stationed offending bus. He did not see the driver of it. He for himself searched the bus and allegedly seized Statistical Returns (SR)/Ex.P.12 from the bus. About the seizure there was no witness. The seizer did not take place soon after the crime incident. The seizure took place on the next day and nobody concerning bus was there at that time. Ex.P.12 was scrutinized by the learned trial Court and it recorded that in it there is a signature of PW.4-Conductor and in it there is a mention of the name of the accused as the driver of the bus. Then at para No.17 of its judgment the trial Court by itself compared the signature of PW.4-Conductor available on the deposition form as against the signature of PW.4 seems to have been available on Ex.P.12-Statistical Return and concluded that they look alike. Then at para No.17 of its judgment the trial Court by itself compared the signature of PW.4-Conductor available on the deposition form as against the signature of PW.4 seems to have been available on Ex.P.12-Statistical Return and concluded that they look alike. Since they look alike, it reached to a conclusion that PW.4 though conductor of the bus though he knew that the accused was the driver, he was not disclosing it to the Court and since the name of accused is available on Ex.P.12, it was sufficient for it to hold that accused was the driver of the crime bus at the material point of time and thus recorded a finding to that effect. 10. In addition to the above, the learned trial Court observed Ex.P.10 report issued by Motor Vehicle Inspector wherein the name of this accused was mentioned as driver. Since Motor Vehicle Inspector also wrote his name, the learned trial Court believed it to be right and correct and concluded that the accused was the driver of the crime bus at the material point of time. 11. The purport of the above discussion indicates that all the relevant witnesses, on oath, stated that accused was not the driver of the crime bus. However, based on the name mentioned in Ex.P.10 and Ex.P.12 the trial Court concluded that the accused was the driver. 12. At para No.17 of its judgment learned trial Court acknowledged that Ex.P.12-Statistical Return ought to have been confronted to PW.4-Conductor to prove its contents. It observed that the prosecution did not exhibit these documents through PW.4, but got it exhibited through the investigating Head Constable/PW.12. Though having recorded such observations, it did not mind to evaluate the legal efficacy of such document. Prosecution did not confront Ex.P.12-Statistical Return to PW.4 to find out whether it bears his signature or not. Without utilizing the best possible evidence, prosecution chose not to show this document to PW.4. Thus, by a substantive evidence no one either admitted or denied the signature available on Ex.P.12. When there was no one to say yes or no to the signature, it was not for the trial Court to make a comparison of certain signatures and then attribute a particular signature as one belonged to PW.4. Thus, by a substantive evidence no one either admitted or denied the signature available on Ex.P.12. When there was no one to say yes or no to the signature, it was not for the trial Court to make a comparison of certain signatures and then attribute a particular signature as one belonged to PW.4. Even according to learned trial Court, Ex.P.12 contains only the name of the accused as driver and it does not contain the signature of the accused on Ex.P.12. During Section 313 Cr.P.C. examination learned trial Court did not confront the accused that Ex.P.12 contains his name as Driver. It did not do it because concerning Ex.P.12 and name of accused on it there was no evidence before it. Thus, without confronting a very important fact to the accused and without giving him an opportunity to explain that fact, it abruptly came to its own conclusions and thereby violated the principles of fair trial and the procedure prescribed by law. Coming to Ex.P.10 Motor Vehicle Inspector’s report, it is not the case of prosecution that the Motor Vehicle Inspector was a witness to a fact. It is not his evidence that he saw this accused at the steering wheel of the bus at the material point of time. His business was to examine the offending bus subsequent to the accident and he examined it accordingly and found that it did not suffer from any mechanical defect. He filled up rest of the columns, obviously going by certain records available with him. A name mentioned in a record cannot make a Court to conclude that it is that man named in the report is the man who drove the bus at the material point of time. That a man drove the bus is a fact and it is that fact which has to be proved by the prosecution through sworn evidence and all the witnesses said that accused was not the driver of the bus. It was arbitrary on part of the trial Court to discard all their evidence and find the name of this revision petitioner referred in two documents and conclude that he was the driver. It was arbitrary on part of the trial Court to discard all their evidence and find the name of this revision petitioner referred in two documents and conclude that he was the driver. The material that was considered by the trial Court is invalid and incorrect and that material by no stretch of imagination could be stated to have proved this accused as the driver of the crime bus at the material point of time. Despite such glaring irregularities and illegalities in appreciation of evidence available on record, the learned appellate judge failed to exercise his appellate jurisdiction in the manner that was expected of him by law. He simply reiterated what the trial Court said and felt satisfied and approved those findings. Learned appellate Court grossly erred in exercising its appellate jurisdiction. 13. Assuming for a while that on evidence it was established that this revision petitioner/accused was the driver of the crime bus, the next substantial fact that was to be proved was the rash or negligent act on his part as a cause of death of the deceased. It shall now be seen how this vital aspect of the case was dealt with by the Courts below. 14. At para No.12 of its judgment, the learned trial Court mentioned that PW.2 the eye witness and friend of the deceased said in his evidence that the bus reached the circle cross road junction and the deceased was getting down from the bus, the driver drove the bus speedily due to which the deceased fell down and two rear wheels ran over him. At para No.13 of its judgment, the learned trial Court referred to the evidence of bus conductor/PW.4 who said that while bus was moving one person suddenly jumped out of the bus and sustained injuries by virtue of fall on the road. At para No.14 of its judgment, learned trial Court referred to the evidence of cleaner of the bus/PW.5 and according to the trial Court this witness stated that the bus did not stop and while it was in motion the passenger was getting down and fell down and sustained injuries. 15. Learned trial Court in its judgment recorded that the bus stop was ahead of the spot of the accident. When it was a little ahead it was quite likely that the bus would have travelled till the bus stop and stopped. 15. Learned trial Court in its judgment recorded that the bus stop was ahead of the spot of the accident. When it was a little ahead it was quite likely that the bus would have travelled till the bus stop and stopped. There was no clear evidence even from PW.2 that at the turning the bus stopped. It is the fact that the passengers were getting down from the bus, but that fact by itself does not prove that they were getting down only when the bus completely stopped. When the evidence of PWs.4 and 5 was so clear that bus did not stop and it was still in motion the passengers were getting down is a clear signal to the trial Court to consider that aspect of the matter very carefully. Reading of the judgment of the trial Court as well as the appellate Court does not show any reference to evidence and any categorical finding that the incident occurred after the bus came to a complete halt and while the passenger was getting down the bus moved ahead. In the absence of a finding on that aspect, it is not possible for anyone to conclude that the movement of the bus in the manner the accused allegedly did it was the cause of accident. 16. It is common knowledge that some accidents are so unexpected that when they happened one could only say that they were inevitable. In such circumstances, one could not think of anything that a careful person would have done to avoid the evil result, if he had been in the shoes of the accused. 17. Some of the accidents happen because of the neglect of some precaution that a reasonable man would have used. Such accidents are the products of what the law Courts call negligence. 18. Negligence, then, is failure to conform to the standard of care to which it is the accused’s duty to conform. It is failure to behave like a reasonable or prudent man, in circumstances where the law requires such reasonable behaviour. 19. In the case at hand, if the evidence is to be considered to the effect that at the turning even just before the bus stop the bus was stopped by the driver so as to facilitate the passengers to get down then there should be some evidence to show that. 19. In the case at hand, if the evidence is to be considered to the effect that at the turning even just before the bus stop the bus was stopped by the driver so as to facilitate the passengers to get down then there should be some evidence to show that. While the bus was stationed, the deceased was getting down from the bus and it was at that precise moment, from a total stationary position, the bus could have been driven at such speed causing the fall of the passenger leading to his death. If the bus stopped, there should be some evidence to show that the bus conductor or cleaner did or did not give signal to the driver to move the bus forward. There is absolutely no evidence led by the prosecution on this crucial aspect and there was total absence of any attention on this crucial aspect by both the Courts below. Only if without minding the movement of passengers and the signal or otherwise of the conductor or cleaner a bus is moved negligence could be attributed to the driver of the bus but not otherwise. 20. If the evidence is to the effect that the bus did not stop at all and yet passengers were getting down and the deceased was also getting down and fell down and died then no fault could be attributed and no negligence could be attributed to the driver of the bus because being a driver he would never expect a passenger to get down from a moving bus. In fact the evidence of PWs.4 and 5 was that the unfortunate deceased got down from the bus while the bus was still in motion. This aspect of the matter was not considered properly by the trial Court and was never thought of its relevance by the appellate Court. 21. On a total reading of the material on record and the judgments impugned, this Court has no doubt in its mind and it is to be recorded that the judgments were flawed and did not evaluate the evidence in the manner that is expected of judicial dispensation and they went more out of emotional attachments to the death and gave a go bye to the process of legal analysis of available evidence. The significant facts that were required to prove negligent driving were never properly considered at all. The significant facts that were required to prove negligent driving were never properly considered at all. Conclusions reached are arbitrary and the manner in which such conclusions were arrived at are illegal. Precisely to modify such errors, jurisdiction in revision is vested with this Court. This Court finds it is an eminent case to allow the revision and set aside the judgments of the Courts below. Point is answered in favour of the revision petitioner. 22. In the result, this Criminal Revision Case is allowed. The conviction and sentence recorded against the petitioner/accused in the judgment dated 17.04.2009 of learned I Additional District and Sessions Judge, Guntur in Criminal Appeal No.257 of 2008 and the judgment dated 11.07.2008 of learned IV Additional Junior Civil Judge, Guntur in C.C.No.338 of 2007 for the offence under Section 304-A I.P.C. is set aside and he is acquitted for the said offence. Fine amount, if any, paid by the revision petitioner/accused shall be refunded to him. As a sequel, miscellaneous applications pending, if any, shall stand closed.