Andhra Pradesh High Court - Amravati
Kinthala Govinda Rao, Srikakulam ... vs State Of Ap., Rep. Pp. Hyd., on 30 March, 2022
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR
Crl.R.C. No.101of 2014
ORDER:
The Inspector of Police, Pothinamallayyapalem Police Station,
has filed charge sheet for the offence under Section 304A IPC
against the accused. The Chief Metropolitan Magistrate,
Visakhapatnam vide calendar and judgment in C.C. No.16 of 2009
convicted the accused for the offence under Section 304A IPC and
sentenced to undergo rigorous imprisonment for six months.
2. Aggrieved by the said judgment the petitioner/accused filed
Criminal Appeal No. 38 of 2011 before the Metropolitan Sessions
Judge-cum-I Addl. District and Sessions Judge, Visakhapatnam,
and the lower appellate Court has confirmed the conviction and
sentence imposed by the trial Court.
3. Aggrieved by the same the present Criminal Revision Case is
filed by the petitioner/accused.
4. The contention of the learned counsel for the
petitioner/accused is that the trial Court has not properly
considered the evidence of the PW1, PW2 and PW3. PW 1 has
stated that he was the conductor of the bus and while the bus
stopped for getting down the passengers, he heard some sounds
and found that the deceased was on the right side rear wheel of the
bus and he called 108 Ambulance. The Court below has declared
him as hostile. PW 2 was examined and he stated that he is
coming from the back side of the bus, he has not witnessed the
accident and the PW3 who is the mediator for the Panchanama has
not supported the case of the prosecution.
5. The trial Court convicted the accused on the sole ground
that the evidence of the prosecution witnessed the accident. The
Trial Court stated that the accused did not take any precaution
while driving the bus and he drove the bus in negligent manner
and the trial Court found the accused guilty for the offence under
Section 304A IPC.
6. In view of the above, it is observed that there is no such
evidence about the rash and negligent act of the accused, whereas
in the chief affidavit of PW1 and PW2 also it was not stated about
the rash, negligent act of the driver of the crime vehicle. The trial
court erred in convicting the accused. The appellate court also
erred in relying the evidence of the PW1, PW2 and PW3 as the
evidence of the PW1 and PW2 not spoken about the rash and
negligent act of the petitioner/accused. It was not properly
construed the offence, by the PW1, PW2 and PW3 who are said to
be the witnesses of the accident. As per the evidence of the PW1
who stated in the Chief Examination that the deceased fell on the
right back side of the bus.
As per the apex Court Judgment in "Mohammed Ayunuddin @
Miyam vs State of Andhra Pradesh" reported in 2000 Criminal Law
Journal 3508, held as follows:
In the present case, the possible explanation of the
driver is that he was unaware of even the possibility
of the accident which happened. When he moved the
vehicle forward his focus normally would have been
towards what was ahead of the vehicle. Some further
evidence is indispensably needed to presume that the
passenger fell down due to the negligence of the
driver of the bus. Such further evidence is lacking in
this case.
Therefore, the court is disabled from concluding that
the victim fell down only because of the negligent
driving of the bus by the driver. The corollary thereof
is that the conviction of accused sentenced by the
trial court for the offence is unsustainable.
7. In the light of the above, it has to be seen, whether the
negligence in the case for cause of the accident can be gathered
from the attending circumstances. It may also be noted that the
accident must be proved by proper and cogent evidence by the
prosecution.
8. In the present case, the facts of the accident are not stated.
It is only to be seen that the accused was directly responsible for
the cause of accident. By mere facts of occurrence of an accident in
all not necessarily reply as sole negligence, of driver. Negligence is
the primary cause. It may not always be desired to the direct
evidence to prove.
9. Herein in this case there is no acceptable and possible
evidence that the driver has driven the vehicle in rash and
negligent manner and is responsible for the death of the victim.
10. Hence, the conviction of the accused imposed by the trial
court and confirmed by the appellate Court is reliably to be set
aside. Accordingly, the conviction of accused under Section 304A,
is set aside and petitioner/accused is set at his liberty. The bail
bonds stands cancelled. Accordingly the criminal revision case is
allowed.
________________________________________
JUSTICE TARLADA RAJASEKHAR RAO
Date: 30.03.2022
Harin
HON'BLE SRI JUSTICE TARLADA RAJASEKHAR
Crl. R.C. No. 101 of 2014
30.03.2022
Harin
