Nagalla Rayapa, vs The State Of A.P., Rep By Pp.,
2023 Latest Caselaw 1539 AP

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

         CRIMINAL REVISION CASE No.834 of 2009

ORDER:

Revision petitioner is a driver of a city bus. He was found

guilty for the offence under Section 304-A I.P.C. and was

convicted and sentenced to suffer Simple Imprisonment for one

year and pay a fine of Rs.5,000/- with a default sentence of

Simple Imprisonment for four months. His driving licence was

ordered to be cancelled for a period of two years. This was the

judgment of learned IV Additional Junior Civil Judge, Guntur in

C.C.No.338 of 2007 by its judgment dated 11.07.2008. This

revision petitioner questioned the correctness of it in his

Criminal Appeal No.257 of 2008. That was duly heard and

decided by learned I Additional District and Sessions Judge,

Guntur by a judgment dated 17.04.2009. Learned Additional

Sessions Judge agreed with the trial Court findings on all

aspects and dismissed the appeal. Questioning the legality of it,

the present revision is filed under Sections 397 and 401 Cr.P.C.

stating that identity of him as a driver was not established and

negligence attributed to him was also not established by

evidence, yet erroneous findings were recorded by both the

Dr. VRKS, J Crl.R.C.No.834 of 2009

Courts below. The conclusions reached were arbitrary and

sought for his acquittal by upsetting the impugned judgments.

2. By an order dated 03.06.2009 in Crl.R.C.M.P.No.437 of

2009 this Court ordered suspension of execution of sentence

and released him on bail. Thereafter this matter was listed for

hearing on several occasions but there was no representation

for revision petitioner. In terms of Section 403 Cr.P.C. this

Court proceeded further. For respondent-State, learned Special

Assistant Public Prosecutor argued that the findings of both the

Courts below are correct on facts and the judgments rendered

by them do not deserve any interference.

3. Considering the material on record the point that falls for

consideration is:

"Whether the Courts below were arbitrary in

appreciation of evidence in reaching conclusions and that

there was no material proving the guilt of the revision

petitioner beyond reasonable doubt and yet he was

convicted?

Dr. VRKS, J Crl.R.C.No.834 of 2009

4. Point:

Sri Shaik Magbul allegedly died on 08.06.2007 out of

injuries sustained in a motor vehicle accident. The offending

vehicle is stated to be a city bus bearing registration No.AP 7 T

3669 in route No.27. This revision petitioner was stated to be

the driver of the said bus at the material point of time. The

allegation was that in the said bus Sri Shaik Magbul and several

other passengers were travelling and at 10:00 P.M. in the night

the bus reached a turning near Venkateswara Vignana Mandir,

Zinna Tower Center, Guntur. The bus stop was a little ahead of

this spot. The allegation is that at the road turning the bus

stopped and one passenger got down and Sri Shaik Magbul was

also getting down from the bus, but this accused without

minding it moved the bus and the deceased fell down and rear

wheels ran over him. People in the bus and outside the bus

raised hue and cry and to that the accused allegedly reversed

the bus and in the process once again ran over the body of

Sri Shaik Magbul. In this incident Sri Shaik Magbul

(hereinafter referred to as 'the deceased') suffered serious

injuries and in a pool of blood died at the spot. It is on these

allegations this revision petitioner was prosecuted.

Dr. VRKS, J Crl.R.C.No.834 of 2009

5. Defence taken up in both the Courts below as well as here

is that the revision petitioner was not the driver of that bus at

the material point of time and he was neither negligent nor rash

in driving the bus and he had no role to play in the unfortunate

death of the deceased.

6. In the light of the above versions on both sides,

prosecution was directed to prove its case. It examined PWs.1

to 13 and got marked Exs.P.1 to 12. There was no evidence led

by defence. Learned trial Court recorded that PWs.1, 3, 7 and 8

are relatives of the deceased and they were not witnesses to the

incident and on getting information about the incident they

came and they identified the dead body. PW.1 lodged Ex.P.1

written information and PW.12-Head constable registered and

issued F.I.R. as per Ex.P.9. Two points that fell for consideration

before the trial Court - whether the evidence on record

established beyond reasonable doubt that it was this revision

petitioner who was driving the bus at the material point of time.

Whether it was his rash or negligent driving that was the direct

cause of death of Sri Shaik Magbul/deceased. The defence of

the accused was one of total denial. It was in that context the

trial Court was invited to scrutinize the evidence and record its

Dr. VRKS, J Crl.R.C.No.834 of 2009

findings. The fact that Sri Shaik Magbul died at the spot as bus

ran over him was not in dispute. The offending bus was

inspected by Motor Vehicle Inspector and he issued Ex.P.10

report giving his opinion that the mechanical condition of the

bus was perfect and death was not because of any mechanical

defect and thus it lent support to the version of prosecution that

the death was out of human failures and not because of

machine failures is one aspect of the matter which is also not in

dispute.

7. Coming to the allegation whether this revision petitioner

was the driver of the bus or not, prosecution examined certain

witnesses. PW.2 is a fellow passenger in the bus and in his

evidence he said that he and the deceased were travelling in the

bus together and he witnessed the incident. In his evidence he

gave the registration number of the vehicle. At para No.7 in the

impugned judgment the trial Court observed that this witness

did not identify the accused as the driver. PW.4 is the

conductor of the bus. In his evidence he said that accused was

not the driver of the crime bus. PW.5 is the cleaner of the crime

bus and he also stated that accused was not the driver of the

crime bus. PW.13 was the very owner of this bus and in his

Dr. VRKS, J Crl.R.C.No.834 of 2009

evidence he stated that at the material point of time one Babu

Rao was deputed as driver of the bus and this accused was not

the driver of the bus.

8. The above are the only witnesses who testified to identify

the accused and they all stated that the accused was not the

driver of the bus. Learned trial Court observed that these

witnesses, with a view to save the accused, spoke falsehood and

the fact that the driver and cleaner did not speak this accused

as the driver itself is a fact that convinced the Court to conclude

that accused was the driver of the crime bus. Thus for not

identifying the accused, trial Court came to a conclusion

opposite to what was deposed.

9. PW.12 the Head Constable in his evidence stated that the

incident occurred during night time at 10:00 P.M. and after

registration of F.I.R. it was during that mid night he went to the

spot and posted a guard and came back to station and on the

next day/09.06.2007 in the morning time he once again

reached the spot of accident and found the stationed offending

bus. He did not see the driver of it. He for himself searched the

bus and allegedly seized Statistical Returns (SR)/Ex.P.12 from

Dr. VRKS, J Crl.R.C.No.834 of 2009

the bus. About the seizure there was no witness. The seizer did

not take place soon after the crime incident. The seizure took

place on the next day and nobody concerning bus was there at

that time. Ex.P.12 was scrutinized by the learned trial Court

and it recorded that in it there is a signature of PW.4-Conductor

and in it there is a mention of the name of the accused as the

driver of the bus. Then at para No.17 of its judgment the trial

Court by itself compared the signature of PW.4-Conductor

available on the deposition form as against the signature of

PW.4 seems to have been available on Ex.P.12-Statistical

Return and concluded that they look alike. Since they look

alike, it reached to a conclusion that PW.4 though conductor of

the bus though he knew that the accused was the driver, he

was not disclosing it to the Court and since the name of

accused is available on Ex.P.12, it was sufficient for it to hold

that accused was the driver of the crime bus at the material

point of time and thus recorded a finding to that effect.

10. In addition to the above, the learned trial Court observed

Ex.P.10 report issued by Motor Vehicle Inspector wherein the

name of this accused was mentioned as driver. Since Motor

Vehicle Inspector also wrote his name, the learned trial Court

Dr. VRKS, J Crl.R.C.No.834 of 2009

believed it to be right and correct and concluded that the

accused was the driver of the crime bus at the material point of

time.

11. The purport of the above discussion indicates that all the

relevant witnesses, on oath, stated that accused was not the

driver of the crime bus. However, based on the name

mentioned in Ex.P.10 and Ex.P.12 the trial Court concluded

that the accused was the driver.

12. At para No.17 of its judgment learned trial Court

acknowledged that Ex.P.12-Statistical Return ought to have

been confronted to PW.4-Conductor to prove its contents. It

observed that the prosecution did not exhibit these documents

through PW.4, but got it exhibited through the investigating

Head Constable/PW.12. Though having recorded such

observations, it did not mind to evaluate the legal efficacy of

such document. Prosecution did not confront Ex.P.12-

Statistical Return to PW.4 to find out whether it bears his

signature or not. Without utilizing the best possible evidence,

prosecution chose not to show this document to PW.4. Thus, by

a substantive evidence no one either admitted or denied the

Dr. VRKS, J Crl.R.C.No.834 of 2009

signature available on Ex.P.12. When there was no one to say

yes or no to the signature, it was not for the trial Court to make

a comparison of certain signatures and then attribute a

particular signature as one belonged to PW.4. Even according

to learned trial Court, Ex.P.12 contains only the name of the

accused as driver and it does not contain the signature of the

accused on Ex.P.12. During Section 313 Cr.P.C. examination

learned trial Court did not confront the accused that Ex.P.12

contains his name as Driver. It did not do it because

concerning Ex.P.12 and name of accused on it there was no

evidence before it. Thus, without confronting a very important

fact to the accused and without giving him an opportunity to

explain that fact, it abruptly came to its own conclusions and

thereby violated the principles of fair trial and the procedure

prescribed by law. Coming to Ex.P.10 Motor Vehicle Inspector's

report, it is not the case of prosecution that the Motor Vehicle

Inspector was a witness to a fact. It is not his evidence that he

saw this accused at the steering wheel of the bus at the material

point of time. His business was to examine the offending bus

subsequent to the accident and he examined it accordingly and

found that it did not suffer from any mechanical defect. He

Dr. VRKS, J Crl.R.C.No.834 of 2009

filled up rest of the columns, obviously going by certain records

available with him. A name mentioned in a record cannot make

a Court to conclude that it is that man named in the report is

the man who drove the bus at the material point of time. That a

man drove the bus is a fact and it is that fact which has to be

proved by the prosecution through sworn evidence and all the

witnesses said that accused was not the driver of the bus. It

was arbitrary on part of the trial Court to discard all their

evidence and find the name of this revision petitioner referred in

two documents and conclude that he was the driver. The

material that was considered by the trial Court is invalid and

incorrect and that material by no stretch of imagination could

be stated to have proved this accused as the driver of the crime

bus at the material point of time. Despite such glaring

irregularities and illegalities in appreciation of evidence

available on record, the learned appellate judge failed to exercise

his appellate jurisdiction in the manner that was expected of

him by law. He simply reiterated what the trial Court said and

felt satisfied and approved those findings. Learned appellate

Court grossly erred in exercising its appellate jurisdiction.

Dr. VRKS, J Crl.R.C.No.834 of 2009

13. Assuming for a while that on evidence it was established

that this revision petitioner/accused was the driver of the crime

bus, the next substantial fact that was to be proved was the

rash or negligent act on his part as a cause of death of the

deceased. It shall now be seen how this vital aspect of the case

was dealt with by the Courts below.

14. At para No.12 of its judgment, the learned trial Court

mentioned that PW.2 the eye witness and friend of the deceased

said in his evidence that the bus reached the circle cross road

junction and the deceased was getting down from the bus, the

driver drove the bus speedily due to which the deceased fell

down and two rear wheels ran over him. At para No.13 of its

judgment, the learned trial Court referred to the evidence of bus

conductor/PW.4 who said that while bus was moving one

person suddenly jumped out of the bus and sustained injuries

by virtue of fall on the road. At para No.14 of its judgment,

learned trial Court referred to the evidence of cleaner of the

bus/PW.5 and according to the trial Court this witness stated

that the bus did not stop and while it was in motion the

passenger was getting down and fell down and sustained

injuries.

Dr. VRKS, J Crl.R.C.No.834 of 2009

15. Learned trial Court in its judgment recorded that the bus

stop was ahead of the spot of the accident. When it was a little

ahead it was quite likely that the bus would have travelled till

the bus stop and stopped. There was no clear evidence even

from PW.2 that at the turning the bus stopped. It is the fact

that the passengers were getting down from the bus, but that

fact by itself does not prove that they were getting down only

when the bus completely stopped. When the evidence of PWs.4

and 5 was so clear that bus did not stop and it was still in

motion the passengers were getting down is a clear signal to the

trial Court to consider that aspect of the matter very carefully.

Reading of the judgment of the trial Court as well as the

appellate Court does not show any reference to evidence and

any categorical finding that the incident occurred after the bus

came to a complete halt and while the passenger was getting

down the bus moved ahead. In the absence of a finding on that

aspect, it is not possible for anyone to conclude that the

movement of the bus in the manner the accused allegedly did it

was the cause of accident.

16. It is common knowledge that some accidents are so

unexpected that when they happened one could only say that

Dr. VRKS, J Crl.R.C.No.834 of 2009

they were inevitable. In such circumstances, one could not

think of anything that a careful person would have done to

avoid the evil result, if he had been in the shoes of the accused.

17. Some of the accidents happen because of the neglect of

some precaution that a reasonable man would have used. Such

accidents are the products of what the law Courts call

negligence.

18. Negligence, then, is failure to conform to the standard of

care to which it is the accused's duty to conform. It is failure to

behave like a reasonable or prudent man, in circumstances

where the law requires such reasonable behaviour.

19. In the case at hand, if the evidence is to be considered to

the effect that at the turning even just before the bus stop the

bus was stopped by the driver so as to facilitate the passengers

to get down then there should be some evidence to show that.

While the bus was stationed, the deceased was getting down

from the bus and it was at that precise moment, from a total

stationary position, the bus could have been driven at such

speed causing the fall of the passenger leading to his death. If

the bus stopped, there should be some evidence to show that

Dr. VRKS, J Crl.R.C.No.834 of 2009

the bus conductor or cleaner did or did not give signal to the

driver to move the bus forward. There is absolutely no evidence

led by the prosecution on this crucial aspect and there was total

absence of any attention on this crucial aspect by both the

Courts below. Only if without minding the movement of

passengers and the signal or otherwise of the conductor or

cleaner a bus is moved negligence could be attributed to the

driver of the bus but not otherwise.

20. If the evidence is to the effect that the bus did not stop at

all and yet passengers were getting down and the deceased was

also getting down and fell down and died then no fault could be

attributed and no negligence could be attributed to the driver of

the bus because being a driver he would never expect a

passenger to get down from a moving bus. In fact the evidence

of PWs.4 and 5 was that the unfortunate deceased got down

from the bus while the bus was still in motion. This aspect of

the matter was not considered properly by the trial Court and

was never thought of its relevance by the appellate Court.

21. On a total reading of the material on record and the

judgments impugned, this Court has no doubt in its mind and it

Dr. VRKS, J Crl.R.C.No.834 of 2009

is to be recorded that the judgments were flawed and did not

evaluate the evidence in the manner that is expected of judicial

dispensation and they went more out of emotional attachments

to the death and gave a go bye to the process of legal analysis of

available evidence. The significant facts that were required to

prove negligent driving were never properly considered at all.

Conclusions reached are arbitrary and the manner in which

such conclusions were arrived at are illegal. Precisely to modify

such errors, jurisdiction in revision is vested with this Court.

This Court finds it is an eminent case to allow the revision and

set aside the judgments of the Courts below. Point is answered

in favour of the revision petitioner.

22. In the result, this Criminal Revision Case is allowed. The

conviction and sentence recorded against the

petitioner/accused in the judgment dated 17.04.2009 of learned

I Additional District and Sessions Judge, Guntur in Criminal

Appeal No.257 of 2008 and the judgment dated 11.07.2008 of

learned IV Additional Junior Civil Judge, Guntur in C.C.No.338

of 2007 for the offence under Section 304-A I.P.C. is set aside

and he is acquitted for the said offence. Fine amount, if any,

Dr. VRKS, J Crl.R.C.No.834 of 2009

paid by the revision petitioner/accused shall be refunded to

him.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 20.03.2023 Ivd

Dr. VRKS, J Crl.R.C.No.834 of 2009

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

CRIMINAL REVISION CASE No.834 of 2009

Date: 20.03.2023

Ivd