G.Srinivasulu vs The State Of A.P.
2023 Latest Caselaw 1348 Tel

           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.

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

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

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

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.

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

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

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

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

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

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

(2008) 1 SCC 791

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

(1998) 8 SCC 493

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.

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

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