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2024 DIGILAW 538 (AP)

Galla Malakondaiah v. State of Andhra Pradesh

2024-05-07

V.SRINIVAS

body2024
ORDER : 1. Assailing the judgment dated 11.10.2010 in Crl. Appeal No. 8 of 2010 on the file of the Court of learned I Additional Sessions Judge at Ongole, confirming the conviction and sentence passed against the accused by the judgment dated 16.12.2009 in C.C. No. 188 of 2006 on the file of the Court of learned Additional Judicial Magistrate of First Class at Chirala, for the offences under section 337, 338, 304-A of Indian Penal Code (hereinafter referred to as “IPC”) and Section 134(A) & (B) r/w. 187 of Motor Vehicles Act (hereinafter referred to as “M.V. Act), the petitioner/accused filed the present criminal revision case under Section 397 r/w. 401 of the Criminal Procedure Code, 1973. 2. The revision case was admitted on 13.10.2010 and the sentence of imprisonment imposed against the petitioner was suspended, vide orders in Crl. R.C.M.P. No. 2789 of 2010. 3. The shorn of prosecution case is that: (i) On 16.12.2006 at 04.30 p.m. the accused being driver of the bus bearing No. AP 27 V 8839, while proceeding towards Sampathnagar road by crossing bypass road from Ramapuram, drove the same in a rash and negligent manner without blowing horn dashed the complaint jeep bearing No. AEE 3401, which is proceeding to Chirala side to go to Vadarevu for inspection of mini water scheme, resulted wife and grand-daughter of PW-1 by name Ajra Parveen and Nazarath Parveen respectively (hereinafter referred to as “deceased”) died on the spot, PW-1, daughter and son-in-law of PW-1 by name Asma Parveen and Mahmad Braheem respectively and PW-2 driver of the jeep received injuries. (ii) Basing on Ex.P.1 report submitted by PW-1, PW-12 - S.I. of Police, Chirala Police Station registered a case in Cr. No. 22 of 2006 for the offences under Section 337, 338, 304-A of IPC and Section 134(A) & (B) r/w. 187 of M.V. Act and investigated into. 4. (ii) Basing on Ex.P.1 report submitted by PW-1, PW-12 - S.I. of Police, Chirala Police Station registered a case in Cr. No. 22 of 2006 for the offences under Section 337, 338, 304-A of IPC and Section 134(A) & (B) r/w. 187 of M.V. Act and investigated into. 4. After completion of investigation, police laid charge sheet and the same was numbered as C.C. No. 188 of 2006 on the file of the Court of learned Additional Judicial Magistrate of First Class at Chirala, after full-fledged trial, found the accused guilty of the offences under Section 337, 338, 304-A of IPC and Section 134(A) & (B) r/w. 187 of M.V. Act, sentenced him to undergo simple imprisonment of two (2) years, sentenced him to undergo simple imprisonment of six (6) months each and to pay fine of Rs.500/- each, in default to suffer simple imprisonment of one (1) week each, for the respective offences. All the sentences shall run concurrently. 5. Aggrieved by the same, the petitioner preferred an appeal, vide Crl. Appeal No. 8 of 2010, before the Court of learned I Additional Sessions Judge at Ongole and the same was dismissed, vide judgment dated 11.10.2010, by confirming the conviction and sentence passed by the trial Court. 6. Against the said judgment of the first Appellate Court, the present criminal revision case was preferred by the petitioner/accused. 7. Heard Sri G. Venkata Sailendra, learned counsel representing Sri G. Venkateswara Rao, learned counsel for the petitioner/accused and Sri S. Dheera Kanishk, learned Special Assistant Public Prosecutor for the respondent-State. 8. Now the point that arises for determination in this revision is “whether there is any manifest error of law or flagrant miscarriage of justice in the findings recorded by the Trial Court as well first Appellate Court?” 9. 8. Now the point that arises for determination in this revision is “whether there is any manifest error of law or flagrant miscarriage of justice in the findings recorded by the Trial Court as well first Appellate Court?” 9. Sri G. Venkata Sailendra, learned counsel representing Sri G. Venkateswara Rao, learned counsel for the petitioner/accused submits that the scene of offence clearly discloses that the driver of the jeep has been driven the vehicle in a rash and negligent manner, as such, there is no negligence on the part of the accused; that the Courts below failed to record any specific finding regarding negligence; that as per the Rule 9 of the Road Regulations 1989, the driver of the jeep on entering road intersection at which traffic is not being regulated, if the road entered is a main road designated as such, give way to the bus proceeding along that road; that Exs.P.16 to P.18 photographs categorically shows the negligence on the part of PW-2, who is driver of the jeep, in causing the incident, which is not at all considered by the Courts below; that Ex.P.15 rough sketch is totally contra to the prosecution version; that the Trial Court as well Sessions Court failed to appreciate the material on record in a proper perspective, erroneously convicted the petitioner and the same is liable to be set aside. In support of his contentions, he relied upon judgments of Hon’ble Supreme Court in Kurban Hussein Mohamedali Bangawalla v. State of Maharashtra, 1964 Law Suit (SC) 335 and Suleman Rahiman Mulani v. State of Maharashtra, 1967 Law Suit (SC) 338. 10. As against the same, Sri S. Dheera Kanishk, learned Special Assistant Public Prosecutor for the respondent-State submits that the photographs and rough sketch shows that the jeep was going on bypass road, which is a highway, whereas bus was coming from Ramapuram Road, thereby the driver of the bus has to be more careful; that PWs. 1 and 2 testified about the rash and negligent driving of the accused in causing the incident; that the Courts below rightly appreciated the material on record and convicted the petitioner for the said offences. 11. In view of the above rival contentions, this Court perused the entire material available on record. 1 and 2 testified about the rash and negligent driving of the accused in causing the incident; that the Courts below rightly appreciated the material on record and convicted the petitioner for the said offences. 11. In view of the above rival contentions, this Court perused the entire material available on record. It is clear from the submission made by the learned counsel that there is no dispute regarding death of the deceased, injuries sustained by PWs. 1 and 2 in the incident as well involvement of the alleged crime bus and jeep in the accident and identity of the accused as driver of the alleged crime vehicle and PW-2 as driver of the Jeep on the date of incident. 12. But the only contention raised by the petitioner is that there is no negligence on his part in causing the incident and the incident was occurred only due to the negligence of PW-2 without following the road rules in driving the jeep. 13. In view of the above submission made by the learned counsel, now, it is relevant to refer Section 304-A of IPC, which reads as follows: “304A. Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to seven years or with fine which shall not be less than seventy-five thousand rupees or with both.” 14. In view of the above provision, it is crystal clear that, to bring home the guilt of the accused for the said offence, the prosecution must establish rash and negligence on the part of the petitioner in causing the incident. 15. From the beginning, it is the prosecution version that the accident occurred only due to the negligence on the part of the petitioner only in driving the bus. To prove the same, the prosecution mainly relied upon the testimony of PWs. 1 and 2, who said to be injured eyewitnesses. Even though PW-2 driver of the jeep stated that bus dashed the jeep, nothing stated about rash and negligence on the part of the petitioner. Furthermore, during cross examination, he testified that generally at four road junctions, a big vehicle goes slow. Thereby, the only testimony available to the prosecution to prove the rash and negligence on the part of the petitioner is PW-1. Furthermore, during cross examination, he testified that generally at four road junctions, a big vehicle goes slow. Thereby, the only testimony available to the prosecution to prove the rash and negligence on the part of the petitioner is PW-1. He testified that due to negligence of the bus driver the accident occurred, but he did not give any information about manner of the incident. 16. Now it is relevant to refer the testimony of PW-11 Motor Vehicle Inspector, who said to be examined the crime bus after the incident and issued Ex.P.10 report to that effect. He found the following damages to the crime bus: (i) Front left corner of the vehicle damaged. (ii) Front bumper registration number plate and front left wheel mudguard damaged. 17. During cross examination, he testified that the other vehicle involved in the accident AEE 3401 was not produce before him, thereby, he did not examine and he examined the crime vehicle at the police station. Furthermore, the above stated damages clearly depicts that when the vehicle coming in left side and dashed on the front left corner of the bus only, it will be caused. But Ex.P.15 rough sketch produced before the trial Court is totally contra to the above that both the vehicles are in the same way and dashed in opposite direction. 18. Even on perusal of Exs.P.16 to 18 photographs shows that the jeep dashed the bus on the left side of the driver only and caused damage to the bus on the very left side front corner of the bus. If the bus is come in its way very negligently, the damage would happen on the middle, but not on the left side corner of the bus. If it is happened only when the jeep comes in its way with high speed in negligent manner. 19. Furthermore, even as per Rule 9 of Road Regulations, 1989, the driver of the motor vehicle shall, on entering road intersection at which traffic is not being regulated, if the road entered is a main road designated as such, give way to the vehicles proceeding along that road, and in any other case give way to all traffic approaching the intersection on his right hand. Thereby, PW-2, who is driver of the jeep should also be in conscious while proceeding in a four-road junction. Thereby, PW-2, who is driver of the jeep should also be in conscious while proceeding in a four-road junction. Thereby, no rash and negligence attributed only against the driver of the bus in causing the incident. 20. As stated supra, even the trial Court as well first Appellate Court did not appreciate Exs.P.15 to 18 rough sketch and photographs placed on record in any manner deciding the rash and negligence in causing the incident and erroneously and mechanically concluded that there is rash and negligence on the part of the petitioner in causing the incident. 21. Now, it is relevant to make a mention a judgment of the Hon’ble Supreme Court in State of Karnataka v. Satish, (1998) 8 SCC 493 where it was held at paragraph Nos.4 and 5 that: “4. Merely because the truck was being driven at a “high speed” does not bespeak of either “negligence” or “rashness” by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by “high speed.” “High speed” is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by “high speed” in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of “rashness” or “negligence” could be drawn by invoking the maxim “res ipsa loquitur.” .................... 5. There being no evidence on the record to establish “negligence” or “rashness” in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view. To us, it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal...........” 22. To us, it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal...........” 22. In view of the above pronouncement of the Hon’ble Supreme Court, even presumed that the bus is in speedy manner, but it does not signify the rash and negligence on the part of the petitioner. The prosecution did not even examine any independent witness to attribute any high speed and negligence in driving the bus by the petitioner. As stated supra, the sole testimony of PW-1 regarding negligence on the part of the petitioner is very much inconsistent. As such, no oral testimony is available on record to attribute any negligence on the part of the petitioner in causing the incident. On the other hand, as discussed supra, the material available on record clearly and categorically shows that the accident occurred due to negligence on the part of PW-2 driver of the jeep, but not on the part of the petitioner. 23. As discussed supra, when appreciation of evidence is totally against the principles of law by the Courts below, prosecution miserably failed to produce any trustworthy evidence to prove the rash and negligence on the part of the petitioner and basing on the sole, uncorroborated and vague testimony of PW-1 convicting the petitioner/accused without appreciating and evaluating the other material available on record, is not at all proper in the eye of law to attribute any rash and negligence against the petitioner. Thereby, viewing from any angle, the Trail Court as well first Appellate Court without any consideration and proper evaluation of the material on record erroneously fastened the liability on the petitioner and convicted the petitioner for the said offence, which is not tenable under law. 24. Having regard to the above discussion, this Court is of the considered opinion that the trial Court as well first Appellate Court failed to appreciate the material on record in proper perspective and there is manifest error of law and flagrant miscarriage of justice in the findings recorded by the trial Court as well first Appellate Court, thereby, the present criminal revision has merits and liable to be considered. 25. In the result, the Criminal Revision Case is allowed. 25. In the result, the Criminal Revision Case is allowed. The conviction and sentence passed against the petitioner/accused, vide judgment dated 16.12.2009 in C.C. No. 188 of 2006 on the file of the Court of learned Additional Judicial Magistrate of First Class at Chirala, as confirmed in the judgment, dated 11.10.2010 in Crl. Appeal No. 8 of 2010 on the file of the Court of learned I Additional Sessions Judge at Ongole, are hereby set aside. The revision petitioner/accused is acquitted of the offence under Section 337, 338, 304-A of IPC and Section 134(A)(B) r/w. 187 of M.V. Act. The fine amount paid by the petitioner/accused, if any, shall be refunded to him. 26. Interim orders granted earlier if any, stand vacated. 27. As a sequel, miscellaneous applications pending, if any, shall stand closed.