THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
CRIMINAL REVISION CASE No.1602 OF 2007
ORDER:
This Criminal Revision Case, under Sections 397 and 401 of Cr.P.C., is filed by the petitioner/accused, challenging the judgment, dated 10.10.2007, passed in Criminal Appeal No.54 of 2006 by the learned II Additional Metropolitan Sessions Judge, Hyderabad, whereby, the conviction of the petitioner/accused under Sections 304A and 337 of IPC and Section 187 of Motor Vehicles Act (for short 'MV Act') and the sentence of simple imprisonment for a period of two years and also payment of fine of Rs.1,000/- in default, to undergo simple imprisonment for a period of 20 days for the offence punishable under Section 304A of IPC; and the sentence of simple imprisonment for a period of six months for the offence under Section 337 IPC; and the sentence of simple imprisonment for three months for the offence under Section 187 of MV Act imposed against the petitioner/accused by the learned III Additional Chief Metropolitan Magistrate, Hyderabad, vide judgment, dated 20.01.2006, passed in C.C.No.226 of 2003, was confirmed.
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2. Heard the submissions of learned counsel for the petitioner/accused, learned Assistant Public Prosecutor representing the respondent/State and perused the record.
3. The case of the prosecution, in brief, is as follows:
On 20.08.2002 at about 4.30 p.m., while PW1/complainant and his aunt Smt.Bharatamma were returning to their respective houses from Secunderabad and passing through Road No.1, Banjara Hills, on the scooter belonging to the PW.1/complainant, a APSRTC bus bearing registration No.AP 11Z 89 being driven by its driver in a rash and negligent manner, came from behind near Music World and dashed against the scooter on which the PW.1/complainant and Smt.Bharatamma were proceeding. Resultantly, PW.1/complainant/rider of the scooter fell to his right side and Smt.Bharatamma, who was the pillion rider, fell to her left side and the offending RTC bus ran over her resulting in her death while undergoing treatment at Care Hospital, Hyderabad.
4. A case in Crime No.539 of 2002 for the offences under Sections 304A and 337 IPC and Section 187 of MV Act were registered against the petitioner/accused. Autopsy was conducted over the dead body of the deceased and Post Mortem Examination report was issued. The crime vehicle was inspected by the Motor 3 Vehicle Inspector, who opined that the subject accident was not due to any mechanical defect in the crime vehicle. After completion of investigation, police laid charge sheet before the trial Court.
5. The petitioner/accused was tried for the offences under Sections 304A and 337 of IPC and Section 187 of MV Act. During the course of trial, the prosecution examined PWs.1 to 10 and got marked Exs.P1 to P14. On behalf of the petitioner/accused, no evidence, either oral or documentary, was adduced.
6. PW.1-G.Ashok is the defacto complainant who set the criminal law into motion by lodging Ex.P1 complaint. PW.2- S.Venkataiah is the husband of the deceased and a circumstantial witness. PW.3-S.Srinivas is said to be an eye witness to the occurrence of the subject accident. PW.4-R.Balraj Goud is a panch witness for inquest. PW.5-N.Sudershan is a panch witness for crime scene observation panchanama and rough sketch. PW.6- Asghar is the photographer who took photographs of the crime scene. PW.7-Dr.Shiva Prasad is the Doctor who treated PW.1/injured. PW.8-Dr.A.Shankar is the Doctor who conducted autopsy over the dead body of the deceased. PW.9- K.Chandrasekhar Reddy is the Sub Inspector of Police who investigated the crime. PW.10-C.Sreenivas is the Motor Vehicle 4 Inspector who inspected the crime vehicle. Ex.P1 is the statement of PW.1. Ex.P2 is the inquest panchanama. Ex.P3 is the scene of offence panchanama. Exs.P4 to P6 are photographs with corresponding negatives. Ex.P7 is the accident report. Ex.P8 is the wound certificate of PW.1. Ex.P9 is the X-ray of PW.1. Ex.P10 is the discharge summary. Ex.P11 is the Post Mortem Examination report. Ex.P12 is the FIR. Ex.P13 is the rough sketch of the scene of offence. Ex.P14 is the MVI report.
7. After considering the oral and documentary evidence on record, the trial Court found the petitioner/accused guilty of the offence under Sections 304A and 337 of IPC and Section 187 of MV Act and sentenced him as stated supra.
8. Challenging the same, the petitioner/accused preferred the subject Criminal Appeal No.54 of 2006 before the Court below and the Court below, after re-appreciating the entire evidence, confirmed the conviction and sentence recorded by the trial Court. Challenging the same, the petitioner/accused filed this Criminal Revision Case.
9. Learned counsel for the petitioner/accused would submit that the Court below fell in serious error in convicting the petitioner/accused of the offences under Sections 304A and 337 of 5 IPC and Section 187 of MV Act. The prosecution miserably failed to establish the essential ingredients of Section 304A and 337 of IPC against the petitioner/accused. In fact, PW.1 hit a road divider with his scooter as a result of which, the pillion rider fell down and died and PW.1 received injuries. The subject accident occurred purely due to the negligence of PW.1 and not due to the rashness or negligence on the part of the petitioner/accused in driving the bus. The Court below failed to appreciate the evidence of PW.3 to whom, it is very difficult to witness the subject accident and that he is a planted witness. The evidence of PW.5, panch witness, is contra to the physical features of the petitioner revealed from Exs.P4 to P6 photographs. Further, the petitioner/accused was identified by the prosecution witnesses for the first time in the Court and as such, the identification of the petitioner/accused by the prosecution witnesses cannot be relied upon. The Court below failed to appreciate that as per the evidence of PW.10-Motor Vehicle Inspector, he could not find any blood stains on the tyres or damage to the RTC bus. The petitioner/accused is entitled for benefit of doubt and as such, he is required to be acquitted of the offences charges against him and ultimately prayed to allow the Criminal Revision Case as prayed for.
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10. Per contra, the learned Assistant Public Prosecutor representing the respondent/State supported the impugned judgment and submitted that the petitioner/accused drove the bus in a rash and negligent manner and dashed against the scooter of PW.1, resulting in the death of the deceased Bharatamma. PW.10 categorically deposed in his evidence that there was no mechanical defect in the offending bus. PW.3, an eye witness, has deposed in his evidence that the subject accident occurred due to rash and negligent driving of the bus by the petitioner/accused. There is consistency and corroboration in the evidence of prosecution witnesses which clearly points towards the guilty of the petitioner/accused. Both the Courts below rightly appreciated the evidence on record and convicted the petitioner/accused of the offences under Sections 304A and 337 of IPC and Section 187 of MV Act. There is nothing to interfere with the impugned judgment of the Court below by exercising Revisional jurisdiction under Sections 397 and 401 of Cr.P.C. by this Court and ultimately prayed to dismiss the Criminal Revision Case.
11. In view of the above rival contentions, the point that arises for determination in this Criminal Revision Case is as follows:
"Whether the impugned judgment, dated 10.10.2007 passed in Criminal Appeal No.54 of 2006 by the II Additional Metropolitan Sessions Judge, Hyderabad 7 suffers from illegality, impropriety and irregularity warranting interference of this Court by exercising power under Sections 397 and 401 of Cr.P.C.?
POINT:
12. I have given thoughtful consideration to the above rival submissions and meticulously gone through entire material on record. This Court is aware of the settled legal position that this Court, in exercise of its Revisional jurisdiction under Sections 397 and 401 of Cr.P.C., cannot interfere with the concurrent findings of fact recorded by the Courts below, unless they are perverse or arrived at ignoring material evidence. Further, the Revisional power of this Court under Sections 397 and 401 of Cr.P.C., cannot be equated with that of an appeal. But however, when the decision of the Court below is perverse or untenable in law or grossly erroneous or glaringly unreasonable or based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, this Court can interfere with the said decision in exercise of its Revisional jurisdiction. Section 401 of Cr.P.C. enables the High Court to exercise all powers of appellate Court, if necessary, in aid of power of superintendence or supervision, as a part of Revisional power. Section 397 of Cr.P.C. confers power on the High Court or Sessions Court, as the case may be, for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any 8 finding sentence or order, recorded or passed, and as to the regularity of any proceeding of such inferior court. Thus, a duty rests on the High Court under Sections 397 and 401 of Cr.P.C. to correct manifest illegality resulting in gross miscarriage of justice.
13. In the instant case, the petitioner/accused was convicted of the offence under Sections 304A and 337 of IPC and Section 187 of MV Act. PW.1, in his evidence deposed that he was driving the scooter and the deceased Bharatamma was pillion rider. On 20.08.2002 at about 05.00 PM, when they reached near Music World situated at Road No.1, Banjara Hills, the offending RTC bus, being driven by its driver in a rash and negligent manner, came from behind and dashed against the scooter. The offending RTC bus ran over the deceased Bharatamma. After the accident, the bus was stopped and that he saw the bus driver. He further deposed that the accused person in the Court is the same driver of the RTC bus which was involved in the accident. As rightly contended by the learned counsel for the petitioner/accused, no test identification parade was conducted prior to the identification of the petitioner/accused by PW.1 before the Court. Ordinarily, identification of an accused for the first time in the Court by a witness should not be relied upon, the same being from its very nature inherently of a weak character, unless it is corroborated by 9 his previous identification in the Test Identification Parade. Test Identification Parade is a check valve to the evidence of identification in Court of an accused by a witness. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapture what a witness had seen earlier, strength/trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in the Court. If a witness identifies the accused in Court for the first time, a probative value of such any corroborated evidence becomes so much minimal so that it becomes, as a rule of prudence but not as a rule of law, unsafe to rely on such a piece of evidence. Further, the subject accident took place in the year 2002 and the prosecution witnesses identified the petitioner/accused for the first time in the Court in the year 2005. Belated identification of an accused in Court for the first time after more than three years from the date of incident should not form the basis of conviction, especially when the same is not corroborated by either previous statement or before the police or any other evidence. Further, in the instant case, there is no mention of the name of the petitioner/accused in the FIR registered in this case. Where the prosecution witnesses did not 10 name an accused before the police to identify him in the Court and prosecution has not furnished any explanation for non-disclosure of the name of the petitioner/accused before the police by the witness, is belated identification in Court for the first time after more than three years should not be relied upon, more so when the same is not corroborated by any other evidence on record. Ordinarily, if accused is not named in the FIR, his identification by the witness in Court should not be relied upon especially when they did not disclose the name of the accused before the police, subject to certain exceptions. Further, PW.10-Motor Vehicle Inspector who inspected the offending vehicle had categorically admitted in his cross-examination that basing on the requisition he mentioned the name of driver in Ex.P14-Motor Vehicle Inspector report.
14. Further, it is apt to extract Section 304A of IPC which reads as follows:
304A. Causing death by negligence.--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 two years, or with fine, or with both.
The essential ingredients of Section 304A of IPC are that (1) There must be the death of a person; (2) The death must be caused by the act of the accused; (3) The death must be caused 11 due to any rash or negligent act of the accused; and (4) the act of the accused must not amount to culpable homicide. Section 304A of IPC applies when there is a direct link between the rash or negligent act of the accused to the death of the person that is in question. The act must result in the immediate cause for the death. A conscientious reading of the words used in Section 304A of IPC makes it clear that that the act must be reasonably capable of resulting in death, which the perpetrator of the act takes the risk of causing and also that the mens rea must fall short of it.
15. The nature and scope of Section 304A of IPC was discussed in detail by the Hon'ble Apex Court in Naresh Giri v. State of M.P.1, wherein it was held as follows:
"8. Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. If a person wilfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. When the intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide. The provision of this section is not limited to rash or negligent driving. Any rash or negligent act whereby death of any person is caused becomes punishable. Two elements either of which or both of which may be proved to establish the guilt of an accused are rashness/negligence; a person may cause death by a rash or negligent act which may have nothing to do with driving at all. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking the crime as well as the life of the 1 (2008) 1 SCC 791 12 person who may lose his life as a result of the crime. Section 304- A discloses that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practice such rashness or negligence which may cause the death of other. The death so caused is not the determining factor.
9. What constitutes negligence has been analyzed in Halsbury's Laws of England (4th Edn.), Vol. 34, Para 1 (p. 3) as follows: "1. General principles of the law of negligence.-Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger; the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some circumstances involve liability as being negligent although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two"."
16. Considering the facts of the present case, I deem it apposite to also refer to the observations made by the Hon'ble Apex Court in State of Karnataka Vs. Satish2, wherein, the importance of the prosecution establishing guilt of the accused in a case of rash and negligent driving was discussed. It was held as follows:
"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 2 (1998) 8 SCC 493 13 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‟.
A careful scrutiny of the evidence placed on record reveals that none of the ingredients are made out to attract the offence under Section 304A and 337 of IPC and section 187 of MV Act against the petitioner/accused. Despite the fact that the complaint has been lodged, cognizance was taken and the charge sheet was filed, there is nothing to proceed against the petitioner/accused since at the inception itself when the act allegedly does not attract the penal clause under Section 304A of IPC and the same has been reinforced.
17. Further, merely because the offending vehicle 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 relevant term. 14 It would be for the prosecution to bring on record material to establish as to what do they mean by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of proof everything essential to the establishment of the charge against the accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary proved. Criminality is not to be presumed, of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on record, no presumption of rashness or negligence could be drawn against the petitioner/accused. On a cumulative reading of the evidence placed on record, there being no cogent and convincing evidence to establish negligence or rashness on the part of the petitioner/accused in driving the offending bus, it cannot be said that the view taken by both the Courts below in convicting the petitioner/accused is a plausible view. The prosecution failed to prove the guilt of the petitioner/accused beyond all reasonable doubt for the offences under Sections 304A, 337 of IPC and Section 187 of MV Act. I, therefore, hold that both the Courts below erred in convicting the petitioner/accused of the offence under Section 304A, 337 of IPC and Section 187 of MV Act. The judgment under challenge is illegal, improper and irregular 15 warranting interference of this Court in exercise of revisional jurisdiction under Section 397 and 401 of Cr.P.C. The petitioner/accused is entitled for acquittal of the offences charged against him.
18. Accordingly, the Criminal Revision Case is allowed by setting aside the judgment, dated 10-10-2007 passed in Crl.A.No.54 of 2006 by the learned II Additional Metropolitan Sessions Judge, Hyderabad. Consequently, the petitioner/accused stands acquitted of the offences under Section 304A, 337 of IPC and Section 187 of MV Act. Bail bonds of the petitioner/accused, if any, shall stand discharged. Fine amount, if any, paid by the petitioner/accused shall be refunded to him.
Miscellaneous applications pending, if any, shall stand closed.
_________________ JUVVADI SRIDEVI, J Date:21.03.2023 Ksk