Katkuri Anil Reddy, Nalgonda ... vs P.P., Hyd
2023 Latest Caselaw 3355 Tel

 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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                                                Crl. RC No.761 of 2016

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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                                                 Crl. RC No.761 of 2016

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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                                                      Crl. RC No.761 of 2016

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

MANU/SC/0275/1979.

                           10                                      RRN,J
                                                 Crl. RC No.761 of 2016

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