THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
CRIMINAL REVISION CASE NO.761 OF 2016
ORDER:
This Criminal Revision Case is directed against the judgment dt.04.03.2016 passed in Criminal Appeal No.172 of 2014 on the file of the II Additional Sessions Judge, Nalgonda at Suryapet, wherein and whereunder, the judgment dt.26.11.2014 on the file of the Judicial First Class Magistrate, Suryapet, in convicting the revision petitioner for the offence under section 304-A of IPC and sentencing him to undergo simple imprisonment for a period of one year, was confirmed.
2. The revision petitioner was a driver of a hired APSRTC bus bearing No. AP-24-X-2044. On 24.10.2010 at about 8:00 PM, he placed the said bus on platform No.3 for boarding passengers. But without observing the boarding passengers, he drove the bus in the reverse direction in a rash and negligent manner; as a result, while one Nagamani (the 'deceased') was intending to board the bus, fell down under the left side front wheel of the bus and the left side front wheel dragged the deceased to a distance. As a result, her head was broken and she died on the spot. On 25.10.2010, the deceased's father approached the police and gave a complaint. On receipt of the 2 RRN,J Crl. RC No.761 of 2016 said complaint, the Sub Inspector of Police, Suryapet, registered a case against the revision petitioner. On completion of the investigation, the police filed a charge sheet.
3. To prove the case of the prosecution, PWs-1 to 11 were examined and got marked exhibits P1 to P10. Neither oral nor documentary evidence was adduced on behalf of the defence.
4. Considering the evidence on record and the arguments advanced by either side, the Trial Court convicted and sentenced the revision petitioner as stated supra. Aggrieved by the same, the revision petitioner preferred an appeal before the learned Sessions Judge vide Crl. Appeal No.172 of 2014 and the learned Sessions Judge was pleased to dismiss the appeal vide judgment dt. 04.03.2016, by confirming the judgment of the Trial Court. Therefore, the revision petitioner is challenging the said judgments before this Court.
5. Heard Sri Kowturu Pavan Kumar, learned Counsel appearing on behalf of the revision petitioner and the learned Assistant Public Prosecutor appearing on behalf of the respondent/Complainant. Perused the material available on record.
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6. It has been contended by the learned Counsel for the revision petitioner that the judgments of both the courts below suffer infirmity and they are liable to be set aside as both the courts below failed to see that there was no rash and negligent act committed by the revision petitioner. He further contended that the prosecution failed to prove the guilt of the revision petitioner beyond all reasonable doubt. He also contended that the death of the deceased could have been due to the fact that the deceased was a disabled person but not due to the alleged rash and negligent act of the revision petitioner. Accordingly, prayed to allow the revision petition.
7. Per contra, the learned Assistant Public Prosecutor appearing for the respondent/State had contended that the judgments of both the Courts below are very well reasoned, having carefully scrutinised the evidence placed before it. Therefore, prayed to dismiss the revision petition by confirming the judgments of both the Courts below.
8. There is no dispute with regard to the involvement of the bus bearing No. AP-24-X-2044 in the unforeseen death of the deceased. The revision petitioner does not dispute the same.
9. PW-1 is the deceased's father who filed the complaint before the police. Admittedly, he is not an eye-witness to the 4 RRN,J Crl. RC No.761 of 2016 incident. He deposed that he gave the report to the police after coming to know about the incident through PW-3 who is the sister of the deceased. The defence did not chose to cross- examine PW-1. Thus, the version of PW-1 was not shaken.
10. PW-2 is the mother of the deceased. She initially supported the prosecution's case, but when asked if she knew the name of the person who caused the accident, she stated that she did not know it. At that stage, the learned APP before the Trial Court was permitted to cross-examine PW-2 as she was differing from her earlier statement. However, on assessing the deposition of PW-2, this Court is of the view that nothing was elicited which would have been fatal to the prosecution case.
11. PW-3 is the deceased's sister and is one of the eye- witnesses to the incident. She deposed that on the date of the incident, she and her deceased sister went to Suryapet to go to the hospital. After completion of their work, they boarded the above said bus to go to their village at 8 pm, but as the persons who were already boarded were getting down, stating that the bus was not going to their village, PW2 and the deceased were also getting down from the bus. While so, the revision petitioner reversed the bus and as a result, the deceased fell 5 RRN,J Crl. RC No.761 of 2016 down, and the front tire of the said bus hit the deceased, and she died instantaneously. She categorically deposed that she observed the incident. However, she stated that she could not say the number of the said bus or the name of the driver of the said bus.
12. The revision petitioner did not choose to cross-examine PW-3, which would mean that the evidence of PW-3 was also not rebutted. The evidence of PWs 1 to 3 is in consonance with each other, and the revision petitioner was not able to rebut such evidence. Thus, the evidence of PW-3 is crucial as the fact that she is an eye-witness to the case is undisputed.
13. PW-4 is said to be another eye-witness to the incident. He deposed that he knew the deceased and PWs 1 to 3 as he worked in their village as a mason. He deposed on the same lines as that of PW-3. The only discrepancy found in the two testimonies is that PW-2 deposed that the incident occurred at about 8 pm and PW-4 deposed that the incident occurred at about 8.30 pm. This Court does not find this minor discrepancy fatal to the case of the prosecution as it is possible that the witnesses would have observed the time of the incident and the following events in such a tense situation, and it is not a deposition which would otherwise give room for doubt that 6 RRN,J Crl. RC No.761 of 2016 the incident did not occur. What could have been fatal to the case of the prosecution is that, when PW-4 was further examined in chief, he deposed that the driver who drove the bus on the date of the incident was not present before the Trial Court (despite the revision petitioner being present in the Court premises). Upon considering the deposition of PW-4, what can be understood is, the incident involving the bus, resulting in the death of the deceased, did occur, and the only flaw in the deposition which could affect the prosecution case is his implied statement that the revision petitioner was not the driver of the said bus on the date of the incident. The revision petitioner did not choose to cross-examine PW-4.
14. PW-5 is the conductor assigned to the said bus on the date of the incident. His evidence is crucial in determining the identification of the accused. He deposed that he knows the revision petitioner. He deposed that at about 8 pm, he went to the cash counter and then, someone had informed him about the said incident. He further deposed that he rushed to the crime scene and found the deceased lying under the rear tire of the left side of the bus, and he called an ambulance. He further deposed that the revision petitioner who was present in the 7 RRN,J Crl. RC No.761 of 2016 Trial Court on the date of his chief-examination, was the driver of the said bus.
15. In his cross-examination, PW-5 was suggested several questions, but he denied all of them and nothing was elicited by the defence to disbelieve the evidence of PW-5. The testimonies of PWs 1 to 3 coupled with the evidence of PW-5 could establish that the revision petitioner was the driver of the bus on the date of the incident as, neither the defence elicited anything contrary from the evidence of the witnesses nor have they adduced any evidence in proof of innocence.
16. Coming to the evidence of PW-6, he deposed that his sister is the owner of the said bus and deposed that he does not know PWs 4 and 5 and the revision petitioner also. However, he deposed that he knows the name of the revision petitioner. That one Anil Reddy RTC driver acted as a driver at the time of the accident. PW-6 was cross-examined but nothing material was elicited.
17. The evidence of PWs 7 and 8 pertain to the panch witnesses, who supported the prosecution's case. They were cross-examined but nothing material was elicited.
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18. PW-10 is the doctor who conducted a postmortem on the body of the deceased. He deposed that he conducted the PME on 25.10.2010 at about 1.10 pm. He deposed that in his opinion, the cause of death of the deceased was due to head injury. The defence did not chose to cross-examine this witness. PW-3 i.e the eyewitness to the incident, deposed that the head of the deceased was broken/crushed, due to the tire of the bus running over the deceased. The evidence of PW-3 coupled with the evidence of PW-9 proves the death of the deceased as stated by the prosecution.
18. The prosecution further examined PWs 10 and 11, who are the investigating officers in the case. Except for the admission that both these witnesses did not collect any document to show that the accused was the driver of RTC bus at the time of the incident, nothing was elicited in their cross- examination. The other witnesses already establish the revision petitioner was the driver of the bus on the fateful day and hence, there is no need to scrutinise the evidence of these witnesses as the tenor of the cross-examination goes to show that the revision petitioner wanted to prove that the revision petitioner was not the driver of the bus on that day.
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19. In view of the above, the manner of the incident and the involvement of the revision petitioner in the death of the deceased, as held by both the Courts below, is justified. The only question which remains to be answered is, whether the revision petitioner acted rashly and negligently, resulting in the death of the deceased on the fateful day.
20. Learned Counsel for the revision petitioner contended that the Courts below found that the revision petitioner did not commit any rash act but observed that the revision petitioner was only negligent in reversing the bus. He relied upon the decision of the Hon'ble Supreme Court reported in Syad Akbar Vs. State of Karnataka 1 wherein it was observed at para No. as follows:
27. In our opinion, for reasons that follow, the first line of approach which tends to give the maxim a larger effect than that of a merely permissive inference, by laying down that the application of the maxim shifts or casts even in the first instance, the burden on the defendant who in order to exculpate himself must rebut the presumption of negligence against him, cannot, as such, be invoked in the trial of criminal cases where the accused stands charged for causing injury or death by negligent or rash act. The primary reasons for non-application of this abstract doctrine of res ipsa loquitur to criminal trials are : Firstly, in a criminal trial, the burden of proving everything essential to the establishment of 1 MANU/SC/0275/1979.
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the charge against the accused always rests on the prosecution, as every man is presumed to be- innocent. Until the contrary is proved, and criminality is never to be presumed subject to statutory exception. No such statutory exception has been made by requiring the drawing of a mandatory presumption of negligence against the accused where the accident "tells its own story" "of negligence on somebody. Secondly; there is a marked difference as to the effect of evidence, viz. the proof in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt but in criminal proceeding the presumption of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. As pointed out by Lord Atkm in Andrews v. Director of Public Prosecutions [1937] 2 All E.R. 552 : [1937] AC 576, "simple lack of care such as will constitute civil liability, is not enough;" for liability under the criminal law "a very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied, 'reckless' most nearly covers the case".
21. In the instant case, no such sudden situation cropped up. The bus was stationed at the boarding point, and it is the duty of the revision petitioner to have carefully and cautiously reversed the said bus after taking due care. At any stage, the revision petitioner has not contended that he took due care and 11 RRN,J Crl. RC No.761 of 2016 moved the bus only after observing that all passengers de- boarded the bus. The contention of the learned Counsel for the revision petitioner that the deceased was handicapped is of no avail, as, there is no material placed before any of the Courts with regard to the same and this ground was never urged before the Courts below. This Court is of the considered view that the revision petitioner had a duty cast upon him to make sure that all the passengers de-boarded the bus which could enable him to take the bus in the reverse direction in a crowded place, which a normal person would have done. The facts of the case in which the petitioner relies, are not applicable to the facts in the present case as unlike the case which was relied upon, no such sudden unexpected event happened. Therefore, the prosecution was able to prove the guilt of the accused beyond all reasonable doubt and the revision case is liable to be dismissed.
22. Accordingly, the criminal revision case is dismissed, confirming the judgment dt.04.03.2016 passed in Criminal Appeal No.172 of 2014 on the file of the II Additional Sessions Judge, Nalgonda at Suryapet, and the judgment dt.26.11.2014 on the file of the Judicial First Class Magistrate, Suryapet, in convicting the revision petitioner. However, keeping in view 12 RRN,J Crl. RC No.761 of 2016 that the incident is of the year 2010, now we are in 2023 and the petitioner was aged 25 years at that time, the sentence imposed on the petitioner is modified from (01) year to that of the sentence he had already undergone.
Miscellaneous petitions, if any, pending shall stand closed.
_____________________________________ NAMAVARAPU RAJESHWAR RAO, J Date: 20.10.2023 BDR