M. Basheer, vs The State Of Ap Rep By Its Pp Hyd.,
2023 Latest Caselaw 978 AP

        THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

          CRIMINAL REVISION CASE No.1303 of 2008

ORDER:

A convict/accused presented this criminal revision case

under Sections 397 and 401 Cr.P.C. questioning the correctness

of judgments of two Courts below.

2. An automobile accident occurred on 03.07.2002 resulted

in death of one person and injuries to eight persons. The

vehicle involved was an auto rickshaw bearing No.AP-02-U-

3142. The incident occurred during broad day light at 9:30

A.M. at a place that was about 5 K.Ms. away from Rayadurg. At

the relevant point this revision petitioner was stated to be

driving the said auto rickshaw with 15 passengers in it. One of

the injured/PW.3, who was shifted to Government Hospital,

Rayadurg, gave his statement to police as per Ex.P.11 and

Rayadurg Police acting upon it registered Crime No.46 of 2002

and investigated into the case and found the auto driver/

revision petitioner was responsible for the crime incident and

laid charge sheet before the learned Judicial Magistrate of First

Class, Rayadurg, who thereupon took cognizance for the

offences under Sections 337, 338 and 304 I.P.C. and Section

187 of the Motor Vehicles Act. While the crime incident

Dr. VRKS, J Crl.R.C.No.1303 of 2008

occurred on 03.07.2002 the accused was arrested on

01.10.2002. Trial Court summoned him and he duly appeared

and he was defended by his own learned counsel when he was

furnished with copies of documents in terms of Section 207

Cr.P.C. Crime alleged allegations were put to him under Section

251 Cr.P.C. and the accused denied the truth of the allegations

and pleaded not guilty. That made the prosecution to introduce

the evidence in the form of PWs.1 to 12 and Exs.P.1 to P.14.

Witnesses were duly cross-examined in defence of the accused.

The learned Magistrate having found incriminating material, he

confronted the same to the accused and sought for his

explanations as required under Section 313 Cr.P.C. The

accused responded by mere denial stating that the evidence led

against him was false. When he was informed of his right to

have any evidence in his defence, he reported no such evidence.

3. On considering the material on record in that case in

C.C.No.315 of 2002 and after hearing arguments, the learned

trial Court stated that the evidence of eye witnesses was

consistent and that evidence established the identity of the

accused as the one who drove the auto rickshaw at the relevant

time and the learned Magistrate also found that at the material

Dr. VRKS, J Crl.R.C.No.1303 of 2008

point of time accused was driving the auto rickshaw at high

speed and the accused found a jeep coming in opposite

direction was also coming at high speed and it was near a

culvert that the accused noticed the opposite coming vehicle

and it was at that stage he swerved his vehicle towards right

side in such a manner that it turned turtle and fell into a ditch

resulting the death of one and injuries to eight others. He found

that the inquest report, post-mortem report and wound

certificates issued by the doctor and the evidence of the

doctor/PW.5 added strength to the oral evidence and found the

accused guilty and convicted him and sentenced him by a

judgment dated 14.09.2006 as mentioned below:

    Section         Imprisonment          Fine                Default
                                                             Sentence
  304-A I.P.C.     Rigorous             Rs.1,000/-           3 months
                   Imprisonment
                   for one year
   338 I.P.C.      Rigorous             Rs.500/-             3 months
                   Imprisonment
                   for one year
   337 I.P.C.      Rigorous             Rs.300/-             2 months
                   Imprisonment
                   for six months
187 of the Motor          -             Rs.100/-                  -
  Vehicles Act

                                                                 Dr. VRKS, J
                                                        Crl.R.C.No.1303 of 2008

4. Aggrieved of his conviction and sentence, the accused

made an appeal to the learned Sessions Judge, Anantapur in

Criminal Appeal No.71 of 2006. The learned Sessions Judge

having considered the arguments advanced on both sides and

having considered the entire evidence and the judgment

impugned before him found that on all the material aspects the

decision taken by the trial Court was correct and the approach

of the trial Court was in accordance with law and it found no

merits in the contentions raised by the appellant before him and

accordingly by a judgment dated 27.08.2008 it dismissed the

appeal and confirmed the judgment of the trial Court so far as

guilt and conviction of the accused is concerned. However, on

the question of various sentences prescribed, the learned

Sessions Judge thought of modifying them by way of reduction

and did it accordingly as mentioned below:

Section Imprisonment Fine Default Sentence 304-A I.P.C. Rigorous Rs.1,000/- 3 months Imprisonment for six months 338 I.P.C. Rigorous Rs.500/- 3 months Imprisonment for six months 337 I.P.C. Rigorous Rs.300/- 2 months Imprisonment for three months 187 of the Motor - Rs.100/- -

Vehicles Act

Dr. VRKS, J Crl.R.C.No.1303 of 2008

5. It is against those judgments this revision is filed stating

that the evidence on record was improperly appreciated by

Courts below and in fact the investigation was defective as the

police failed to investigate whether it was the fault of this

accused or it was the fault of the opposite coming jeep driver

that caused this crime accident. That this accused with a view

to avoid collision with the opposite vehicle swerved his vehicle to

the left side of the vehicle, where there was a ditch into which

the auto went unfortunately and because of this unexpected

event the auto turned turtle and in such circumstances, it could

not be said that the accused was either rash or negligent in

driving the vehicle. It is further contended that the Courts

below without recording any specific finding as to which of the

victims suffered simple injuries and which of the victims

suffered grievous injurious simply went on to convict the

accused for the offences under Sections 338 and 337 I.P.C. and

that is illegal and irregular. Learned counsel appearing for the

revision petitioner argued that some of the witnesses deposed

that there was no rash or negligent act on part of the accused,

but the Courts below did not appreciate that evidence. It is for

Dr. VRKS, J Crl.R.C.No.1303 of 2008

these reasons, the revision petitioner seeks to upset the

impugned judgments and acquit him of the case.

6. The learned Special Assistant Public Prosecutor appearing

for the respondent-State submit that after exhaustive

investigation and due trial, both the Courts below appropriately

considered the facts and concluded the case against this

revision petitioner and the judgments impugned do not suffer

from any illegality or irregularity or impropriety and therefore,

sitting in revision there is no warrant for this Court to interfere

with the guilt, conviction and sentence of the revision petitioner.

7. On considering the arguments of learned counsel on both

sides, the points that fall for consideration are:

1. Was there mis-appreciation of evidence resulting in conclusions that cannot be sustained? and

2. Whether the impugned judgments are illegal or irregular in prescribing the sentence without requisite findings recorded?

8. Points:

The fact that this revision petitioner drove the auto

rickshaw bearing No.AP-02-U-3142 at 9:30 A.M. along with 15

passengers in the auto rickshaw and that the auto rickshaw fell

Dr. VRKS, J Crl.R.C.No.1303 of 2008

into a ditch resulting in death of one person by name

Sri K.Ramalinga Prasad and injuries to several others are some

of the facts that were established by evidence and requisite

findings were recorded by both the Courts below as against

which no challenge is raised in this revision, is a matter of fact

on record.

9. Causing death by doing an act with the intention of

causing death is 'culpable homicide'. However, causing death

by doing any rash or negligent act not amounting to 'culpable

homicide' is made an offence under Section 304-A I.P.C.

Causing grievous hurt to any person by doing any act so rashly

or negligently as to endanger to human life or the personal

safety of others is made an offence under Section 338 I.P.C. and

causing hurt to any person by doing any act as to endanger to

human life or the personal safety of others, it is made an offence

punishable under Section 337 I.P.C. It is in the context of these

legal mandates, the conduct attributed to the revision petitioner

has to be seen. The sequence of events that emerged at the trial

are to the effect that with 15 passengers on board this revision

petitioner was driving his auto rickshaw at high speed and it

was going on the road and this revision petitioner noticed a jeep

Dr. VRKS, J Crl.R.C.No.1303 of 2008

coming in the opposite direction and his auto rickshaw was

reaching near a culvert where the road is a little narrower. The

version of the witnesses was that both the auto rickshaw as well

as the opposite coming jeep were moving in such uncontrollable

manner because of their speed and the revision petitioner drove

his auto rickshaw towards right side and the auto turned turtle

and fell into a ditch. It is this aspect of the matter that was

consistently spoken to by all the witnesses excepting one. All

the material witnesses were passengers in the vehicle. They

testified as PWs.3, 4, 5, 9 and 11. The above act of the accused

was also stated to be rash or negligent by the witnesses.

However, PW.11 stated that there was no such rashness or

negligence on part of the revision petitioner.

10. Witnesses to facts are to depose facts. The effect of those

facts, in terms of law, is a matter for argument by a counsel and

is a matter for decision for a Court. Without deposing a fact if a

witness says the accused drove the vehicle rashly or negligently

that is no evidence at all since those two terms by themselves

do not indicate any facts enabling a Court of law to adjudge the

criminality of the acts involved in the facts. That many

witnesses spoke that this revision petitioner was rash or

Dr. VRKS, J Crl.R.C.No.1303 of 2008

negligent and one witness positively said that this revision

petitioner was not rash or not negligent are judgments of the

witnesses which have no bearing. A perusal of the judgments of

the Courts below do indicate that PW.11 as well as the other

witnesses deposed facts in the same manner. It was on such

evidence the Courts below concluded that this revision

petitioner was negligent. It is undisputed that the revision

petitioner is a professional auto rickshaw driver. Thus, being a

professional he has a special skill of driving. Such professional

driver is expected to show the skill of any reasonably competent

member of his profession. Being an auto rickshaw driver

carrying so many passengers beyond the prescribed limit, it was

his duty to see the safety of his passengers. If he was careless

amounting to culpable breach of his duty, in other words failure

to do something that a reasonable person would do or doing

something that a reasonable person would not do would be

considered as negligence in criminal law. It is in the light of

that legal requirement now this Court has to see that the facts

established through the evidence fall within the scope of this

legal norm or not. The evidence on record is to the effect that

with such heavy load of passengers, this revision petitioner was

driving the auto rickshaw at such a speed and he noticed a

Dr. VRKS, J Crl.R.C.No.1303 of 2008

culvert where the road narrows down. When the culvert was on

a regularly plied road of this revision petitioner, he must have

that normal sense of driving making him to reduce the speed of

his vehicle so as to control it and safely drive through the road.

Added to that he noticed another speeding jeep in his opposite

direction. On a narrow road near a culvert while another

vehicle was coming at in such menacing speed any prudent

driver would have applied brakes and slowed down the vehicle

and took it to the side of the road so that the travel could be

safely covered. It is not the evidence of witnesses nor was it the

defence of the accused that this revision petitioner ever applied

breaks in such circumstances. Why he did not apply brakes

was within his exclusive knowledge and he was expected to say

to the Court, but he/revision petitioner kept his silence without

divulging any facts to the Courts. That indicates that he was

not prepared to apply breaks, let what may come. Instead of

applying breaks what he did was he swerved the vehicle to the

right side of the road. Be it noted that the evidence on record

indicate such facts but in the memorandum of grounds of this

revision it is incorrectly mentioned as left side of the road. Be

that as it may. Instead of applying breaks he swerved to the

right side and since it is a place nearer the culvert, the place

Dr. VRKS, J Crl.R.C.No.1303 of 2008

would not be as flat as a road and existence of a slope or ditch

is a normal phenomenon. Being a professional driver it is all

within the normal grasp of a reasonable prudent driver. Instead

of looking after the safety of his passengers and safety of

himself, the revision petitioner was prepared to drive further

and swerve it on one side and in the process he encountered a

ditch which he could not negotiate and the whole auto rickshaw

along with multitude of passengers fell down leading to death of

one and injuries to others. This conduct of the accused purely

falls within the parameters of Section 304-A I.P.C. and the

Courts below rightly recognized it. The contention of the

learned counsel for revision petitioner that there was lapse in

the investigation as it failed to consider the rash and negligent

driving of the opposite coming jeep driver is of little consequence

since it is not that jeep driver's conduct that is at trial. It is not

a case where the auto rickshaw collided with that jeep.

Therefore, both the Courts below did not find any merit in his

contention and his repeated contention here has no merit for

the reasons that are mentioned earlier. In these circumstances,

this Court finds that the judgments of the Courts below, when

they found that this revision petitioner was guilty for the offence

Dr. VRKS, J Crl.R.C.No.1303 of 2008

under Section 304-A I.P.C. is perfectly in accordance with facts

and law and the same is approved here.

11. Having gone through the judgment of the learned trial

Court as well as that of the learned first appellate Court, a few

aspects are to be stated here.

12. The learned trial Court recorded the evidence of injured

witnesses and recorded the evidence of the doctor who treated

them and considered the wound certificates in Exs.P.1 to P.7.

Throughout its judgment it did not make a mention as to which

of these injured suffered grievous hurt attracting Section 338

I.P.C. and which of the injured suffered simple hurt attracting

Section 337 I.P.C. Without rendering any finding it simply went

on to convict the accused under both the provisions of law.

This lapse was specifically contended before the learned first

appellate Court. It is unfortunate that the learned first

appellate Court/Sessions Judge having noted down such

contentions did not feel to bestow any attention on that aspect.

He neither recorded a clear finding of fact attracting each of

those two provisions nor stated anything. Except mentioning

the contention of the accused nothing was done. It is in the

context of these facts, the contention of the revision petitioner

Dr. VRKS, J Crl.R.C.No.1303 of 2008

that it is illegal and irregular to convict the revision petitioner

under both the provisions of law, I find merit in it. Since the

evidence on record established hurt to eight individuals and

since there is no specific finding on record indicating which of

the injuries of which of these injured was grievous in nature,

this Court shall find the revision petitioner not guilty for the

offence under Section 338 I.P.C. and to that extent the

judgments of both the Courts below shall be set aside. Since

the evidence indicated hurt to the injured, which was supported

by medical evidence, the same shall be considered as simple

hurt and in that view of the matter, the finding of guilt

conviction and sentence rendered by the Courts below for the

offence under Section 337 I.P.C. shall be confirmed. Thus, both

the points are answered accordingly.

13. In the result, this Criminal Revision Case is allowed in

part confirming the judgment dated 27.08.2008 of learned

Sessions Judge, Anantapur in Criminal Appeal No.71 of 2006 so

far as the offences under Sections 304-A and 337 I.P.C. are

concerned. The revision petitioner/accused is acquitted for the

offence under Section 338 I.P.C. and to that extent the

judgment of the first appellate Court shall be set aside and fine

Dr. VRKS, J Crl.R.C.No.1303 of 2008

of Rs.500/- shall be refunded to the revision petitioner/accused

by the learned trial Court on a duly made application by the

revision petitioner.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 21.02.2023 Ivd

Dr. VRKS, J Crl.R.C.No.1303 of 2008

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

CRIMINAL REVISION CASE No.1303 of 2008

Date: 21.02.2023

Ivd

Dr. VRKS, J Crl.R.C.No.1303 of 2008