Allowed

S. Shafiullah, v. the State of Ap Rep by Its Pp Hyd.

Andhra Pradesh HC12 Dec 2023CRLRC/2023/2010

Case brief

AI extract

What is this about?

In a criminal revision, the High Court acquitted the accused driver of rash and negligent offences. The Court held the prosecution failed to prove rashness/negligence beyond reasonable doubt due to lack of material regarding speed definitions, missing auto driver testimony, and inconsistencies in the Investigating Officer's testimony.

What did the court decide?

Conviction under Sections 304-A and 338 IPC set aside; petitioner acquitted of charges; fine refunded if paid.

S. Shafiullah, Vs the State of Ap Rep… — Civil Procedure and Limitation | Andhra Pradesh HC (2023)

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IN THE HIGH COURT OF ANDHRA PRADESH AMARAVATI TUESDAY, THE TWELFTH DAY OF DECEMBER TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HON’BLE SRI JUSTICE V SRINIVAS CRIMINAL REVISION CASE NO: 2023 OF 2010

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Revision filed under Section 397/401 of CrPC praying^that in the circumstances stated in the affidavit filed in support of the Criminal Revision Case, the High Court may be pleased to present this Memorandum of CrI.R.C., before this Hon'ble High Court against the Judgment dt. 28-10-2010 made in CrI.A.No. 34 of 2009 on the file of the Court of III Addl. Dist. Judge, Tirupati in confirming the Judgment passed in CC.No. 113 of 2006 on the file of the J.F.C.M., at Sathyaveedu, dt. 13-3-2009. Between:

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S. Shafiullah, S/o S.Ibrahim, Driver, aged 41 years, R/o at D.No. 18/22, Mundy Street, Chittoor,

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...PETITIONER/APPELLANT/ACCUSED AND

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The State of Andhra Pradesh rep. by its Public Prosecutor, High Court of A.P. at Amaravathi

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...RESPONDENT/RESPONDENT

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I.A. NO: 1 OF 2010(CRLRCMP. NO: 2958 OF 20101

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to dispense with the filing of the certified copy of the Judgment passed in CC.No. 113 of 2006 on the file of the Court of the J.F.C.M. at Satyaveedu, dt. 13-3-2009 for the present.

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LA. NO: 2 OF 2010(CRLRCMP. NO: 2979 OF 2010^

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to enlarge the petitioner on bail by suspending the execution of the sentence passed in CrI.A. No. 34 of 2009 on the file of the court of the III Addl. Dist. Judge, Tirupati in confirming the Judgment passed in CC.No. 113 of 2006 on the file of the J.F.C.M., at Sathyaveedu, dt.13-3-2009 pending disposal of the main CrI.R.C.

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Counsel for the Petitioner(s):SRI. HARINADH NIDAMANURI Counsel for the Respondents: SRI. PUBLIC PROSECUTOR The Court made the following: ORDER

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THE HON’BLE SRI JUSTICE V.SRINIVAS

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CRIMINAL REVISION CASE No.2023 of 2010

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ORDER:

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This Revision is arising out of judgment dated 28.10.2010 passed in Crl.A.No.34 of 2009 on the file^ofthe III Additional District Judge, Tirupati, wherein the^learned Judge has dismissed the appeal confirming the conviction and sentence imposed against the accused for the offence punishable under Sections 304-A IPC and 338 IPC in^the judgment dated 13.03.2009 in C.C.No.ll3 of 2006 passed by the learned Judicial Magistrate of First Class, Sathyavedu.

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Brief facts of the case of the prosecution are that:^On 17.04.2006 at about 11.30 a.m., while the accused being the driver of the crime lorry bearing No.ADA 1111 was plying from Nagalapuram with the load of dry grass^drove the vehicle in a rash and negligent manner on Pichatur^to Vengalathur cross road and dashed the auto bearing^No.AP 03 V 6184 which was plying from Pichatur to Mangalagiri Kandriga, as a result of which the auto turned turtle^and

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the inmates of auto by name P.Subbalakshmi @ Bharathi and P. Pavan Kumar aged 10 months, sustained severe bleeding injuries and died on the spot and another^inmate of auto Balaji received bleeding injuries and they were shifted to Puttur Government Hospital for necessary treatment. Basing on the compliant of K.Sreenivasulu^on 17.04.2006 at 12:00 p.m., a case in Crime No. 17/2006 under Sections 337, 338 and 304-A IPC was registered^and investigated into.

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The prosecution examined PW. 1 to PW. 12 and marked Ex.PI to Ex.PlO. On behalf of the accused, neither oral nor documentary evidence was adduced.

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The trial Court convicted the accused for the offence punishable under Sections 304-A of IPC and sentenced him to undergo simple imprisonment for a period of^one (01) year and to pay a fine of Rs.2,000/- in default, to suffer simple imprisonment for a period of two (02)^months and also convicted the accused for the offence punishable under Sections 338 of IPC and sentenced him to undergo

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simple imprisonment for a period of six (06) months and to pay a fine of Rs. 1,000/in default, to suffer simple imprisonment for a period of two (02) months. Both the sentences shall run concurrently.

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Against the said impugned judgment, the revision petitioner/accused preferred an appeal before the lower appellate Court, but the same was dismissed by confirming the trial Court’s judgment.

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Being aggrieved, the present revision has been filed by the petitioner/accused.

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Heard Sri Harinadh Nidamanuri, learned counsel for the revision petitioner and Sri Dheera Kanishka, learned Special Assistant Public Prosecutor representing the re spondent- State.

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Now the point that arises for determination in this -i. b.

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revision is:

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“Whether there is any manifest error of law or flagrant miscarriage of justice in the findings recorded by the Trial Court as well the first Appellate Court?”

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Learned counsel for the petitioner submits that the prosecution failed to prove the ingredients by way of legal evidence so as to constitute the offences under Section 304-A and 338 IPC. He further submits that there is no material on record to show that the accused drove the vehicle in a rash and negligent manner so as to hold that accused committed to the alleged offence.

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Learned counsel for the petitioner further submits that the best witness who is the driver of the auto has not examined by the prosecution for the reasons best known to them. He further submits that mere driving the vehicle^at high speed cannot be construed that the prosecution^has proved the rashness and negligence on the part of the accused and the evidence on record wholly insufficient^to record a conviction and that the prosecution failed to prove its case beyond all reasonable doubt.

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Against the same, learned Special Assistant Public Prosecutor submits that the driver of the crime lony

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bearing No.ADA 1111 was plying from Nagalapuram with the load of dry grass drove the vehicle in a rash and negligent manner and dashed the auto bearing No.AP^03V 6184 on Pichatur-Vengalathur, as a result of which the auto turned turtle and two persons died and caused injuries to three witnesses.

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Learned Special Assistant Public Prosecutor further submits that the evidence of prosecution witnesses is consistent cogent and nothing found from their testimony any unreasonableness and they have consistently statedⁱⁿ their testimony that the accused/driver, who is petitioner herein, drove the lorry in a rash and negligent manner, which culled out from the testimonies of PWs.2, 3 and⁶ and the same is recorded by both the Courts below and nothing on record to interfere with the concurrentfindings of fact that the accused drove the vehicle in a rash and negligent manner.

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Before going to discuss the point in question, this Court intended to make on record, a judgment of Hon’ble

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♦

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the Supreme Court, relied upon by the learned counsel^for the petitioner, in State of Karnataka v Satish^, wherein

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it was held that:

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“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 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". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.

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1 (1998) 8 see 493

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There being no evidence on the record to establish "negligence" or "rashness" in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged. ”

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From the above, it has to be seen whether prosecution proved the so-called high speed said to^have stated by PWs.2, 3 and 6, and it can be speak of either “negligence” or “rashness” by itself and whether any^ofthe prosecution witnesses could give any indication, even approximately, as to what they meant by “high speed”.

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The HonlDle the Supreme Court in the above citied judgment categorically held that “high speed” is a^relative term and it was for the prosecution to bring on record^the material to establish as to what it meant by “high speed” in the facts and circumstances of the case.

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In this backdrop, this Court closely perused the testimonies of PWs.2, 3 and 6, initially. Thereafter, this Court will discuss about the remaining witnesses. PW-2

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stated before the trial Court that on 17.04.2006 at 11.30 a.m., she and both the deceased namely G.Subbalakshmi @ Bharthi (Dl), pavan kumar (D2) and her younger brother Balaji were proceeding to Mangalagiri Kandriga in an auto and while they were passing from Pichatur by way of national high-way main road, a lorry bearing No.ADA 1111 (crime lorry) came from puttur side in a high speed and dashed against their auto, immediately her mother and her son died on the spot, herself and her younger brother received simple injuries and they were treated at pichatur Government Hospital and accused is the driver of the vehicle. In the cross-examination, it is elicited that he did not state to the police that the vehicle was coming from puttur to Nagalapuram. On the other hand, he stated to the police that the vehicle ISi proceeding from Nagalapuram to Puttur. He further stated that the accident took place at pichatur road side. It is true at the place leading to Vengalathur from pichatur there was a cinema theatre. which is at the scene of offence. It also elicited when the auto driver-was grading into the main road the accident

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0ft

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occurred and auto was completely damaged in the said accident. 17. So far as, PW-3 is concerned, he stated before the trial Court that himself^ PW-2 and his mother by name G.Subbalakshmi @ Bharthi and Pavan Kumar boarded the auto to Mangalagiri Kandriga, when their auto crossing pichatur and in the bye-pass, a loriy driven by the^accused came in high speed and dashed their auto due to which^he sustained injury to his left leg. In the cross-examination^it is elicited on the side of a cinema theater and on the other side thorny bushes are there, at the scene of offence.^Auto was proceeding from pichatur side to velore side at the time of aceident. The crime vehicle was passing from nagalapuram towards puttur side.

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Another injured witness before the trial Court is PW-6, who stated in the chief-examination; when their auto was crossing high-way road at pichatur bus stand^a loriy came from Nagalapuram side and dashed their auto in a high speed. He sustained fracture injuries to his right hand elbow and on back side of the head. The number of

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crime vehicle is ADA 1111 and nothing is elicited in the cross-examination either in favour of the prosecution^orin favour of the accused.

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Admittedly, as per the prosecution S.Balaji S/o Chengaiah, auto driver is said to be examined by the^police to speak about the fact that the auto met with an accident as well death of the deceased in the accident. According^to this Court his testimony is more important to decide whether there is any rash and negligence on the part^ofthe driver of the lorry bearing No.ADA 1111.

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Learned Special Assistant Public Prosecutor given up the evidence of LW-7, he might have stated more clearly^on whose fault the incident occurred and whether there^isa rash and negligence on the part of the petitioner.^Sofaras the place of accident is also concerned as discussed^above, PW-2 says at the place leading to Vengalathur from pichatur there was a cinema theatre, which is the scene^of offence. But as per Ex.P.9 rough sketch of scene of^offence, at puttur side, entry in the middle of the road the^accident occurred, biaLJhis is not explained by I.O. when he^was

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examined as PW.12. In the cross-examination, PW-3 says, when the auto passed half of the main road and further proceeding on the highway the accident occurred. It^istrue on one side there is a cinema theatre and on the other^side thorny bushes are there at the scene of offence, which^is not tally to the testimonies of PW-1 and PW-2.

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PW-12-Investigating Officer, who stated that the scene of offence is located at four road junction and^movie theatre is also located nearer to scene of offence^andthere are thorny bushes at the scene of offence.

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According to PW-2, the scene of offence is on the puttur road cinema theatre this contradiction again^goesto be answered by PW-12, but did not do so.

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One more instance which culled out by the learned counsel for the petitioner, from the testimony of PW-7^by name M.S.S.B.Prasad, who said to be M.V.Inspector,^inthe chief-examination that he could not conduct road test^on the auto rickshaw because of the damages caused to^the vehicles due to the accident and the accident did not^occur due to any mechanical defect of both the vehicles,^whichis

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mentioned in the Ex.P.2. Whereas, the learned counsel^for the petitioner submits that when both the vehicles are not fit, how the M.V.Inspector came and given such opinion that there was no mechanical defect. 24. Learned counsel for the petitioner also submits that 'i. in order to find there was a rash and negligence except^the testimonies of PW-3 and PW-4, who spoke about the speed of the vehicle, there is nothing indicating in their^evidence that there is a rash and negligence and as per judgment^of the Apex Court speed of the vehicle is only a relative^term and prosecution is expected to place evidence that^thereis a rash and negligence and simple intimation by PW-2^and PW-3 that the vehicle who hit tfie; auto is in speed^isnot sufficient. He further submits that merely because the truck lorry was being driven at a “high speed” does not say either “negligence” or “rashness” by itself. None of^the prosecution witnesses could give any indication, even approximately, as to what they meant by “high speed”. 25. Except the testimonies of PW-2 and PW-3 that the lorry driven W accused came in a high speed and dashed

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the auto nothing more stated by PW-2 and PW-3. Simply, because PW-8 was not cross-examined by the accused does not give any inference that the accused drove the vehicle in a rash and negligent manner. 26. In the road accident the deceased P.Subbalakshmi @ Bharathi and Pavan Kumar were died. PWs.2, 3 and 6 received simple and grievous injuries respectively.^But it should be proved that those injuries of PWs.2, 3 and^6as well deaths caused only due to rash and negligence^actof the driving of lorry bearing No.ADA 1111 driven by^the accused. On the other hand, there is any amount of^doubt while reading the evidence of PWs.2, 3 and 6 coupled^with the evidence PW-12 regarding rash and negligence of^the accused in driving the crime lorry. The prosecution^could not prove the guilt of the accused who drove the crime lorry bearing No.ADA 1111 in a rash and negligent manner has found by the trial Court as well as Appellate Court. 27. Simply coming to the finding that PW-2 and PW-3 stated that the lorry was at high speed and dashed the .‘i t.; auto IS not sufficient, it should be more require to^findthat

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accused drove the vehicle in a rash and negligent manner and he alone responsible for causing the aecident. As already stated supra, the best person rather best evidence which can be elicited the said fact from the testimony^of LW-7 who is an auto driver, if examined it gives clear evidence whether there was any rash and negligent driving by the accused at the relevant point of time resulting^the accident as well resulting death of two persons, grievous injury to PW-6 and simple injuries to PW-2 and PW-3. 28. The trial Court’s judgment at para 21 states that the evidence of PW-2 and PW-3 inspire confidence that they witnessed the accident and also identified the accused and further deposed that due to the negligence of the accuseddriver only the accident took place and two persons^diedin the accident. 29. In view of the above discussion, this Court finds that the testimonies of PW-2 and PW-3 does not inspire confidence to come to such finding because they did^not speak off rash and negligence except speaking one word speed’. More so, they did not consistently state about^the

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accident place in particular the scene of offence. PW12/Investigating Officer whose evidence is also not consistently with evidence of PW-2 and PW-3, but the^trial Court went on to see the evidence of PW-2 and PW-3 inspires confident that only due to negligence of the accused the accident occurred. But on careful reading^and above discussion, there is no such rash and negligence established by the prosecution from the testimonies^ofPW- 2 and PW-3. 30. Whereas, even in the judgment of Appellate Court also stated at para Nos. 14 and 15, the M.V.Inspector,^who is examined as PW-7 stated that the accident was not occurred due to any mechanical defects and he also^stated that there is a cinema theater near the scene of offence and there are thorny bushes at the scene of offence.^When such is the case, how the'vehicle will go in a high speed is also a question, which creates a doubt, whether there^isa rash and negligence on the part of the driver of the^crime vehicle i.e., petitioner herein. In the judgment of Appellate Court at para 15 discussed about there is a direct

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witnesses supports the circumstances of the scene of offence.

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PW-2 and PW-3 who said to be injured witnesses and even according to them they sat in the backside of^the driver seat i.e. backside of the auto. So, the better person to speak about the incident is the driver of the auto,^whois LW-7 and was not examined.

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For these reasons, this Court is of the view that the prosecution could not prove the guilt of the accused beyond all reasonable doubt. On the other hand, both^the trial Court as well as Appellate Court went on surmises and assumptions that the prosecution able to prove^the guilt of the accused beyond all reasonable doubt, which^is not correct and there is no legally admissible evidence to make out case that prosecution could able to prove^that the accused drove the lorry bearing No.ADA 1111 in^arash and negligent manner and hit the auto resulting death^of two persons as well injuries to three persons. 33. More so, it is also relevant to state that it is not known in the said accident whether the driver of the auto * r

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also received injuries and whether he was able to control the vehicle. There is no material on record that whether due care and caution taken by auto driver as well the petitioner/accused while driving the vehicles. All these aspects were not taking care of by the trial Court^aswellas Appellate Court while coming to the conclusion that^the accident occurred only due to rash and negligent act^of driving of the petitioner/accused.

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For these reasons, this Court is of the view, the trial Court as well as Appellate Court miserably committed an error in appreciating testimonies of PWs-2, 3, 6 and 12, while coming to a ending that the accused alone responsible for the accident. Thereby, the conviction^and sentenced passed against the petitioner by the trial^Court under Section 304-A and 338 of IPC are liable to be set aside.

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In these circumstances, the Criminal Revision Case is allowed by setting aside the conviction and sentence imposed against the petitioner/accused, vide judgment dated 13.03.2009 in C.C.i'io.llO of 2006 on the file of the

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Court of learned Judicial Magistrate of First Class, Sathyavedu, which was confirmed by the judgment dated 28.10.2010 in Crl.A.No.34 of 2009 on the file of the Court of learned 111 Additional District Judge, Tirupati. The revision petitioner/accused is acquitted of the charge under Section 304-A and 338 of IPC. The fine amount paid by the accused, if any, shall be refunded to him.

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Interim orders granted earlier if any, stand vacated.

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Miscellaneous petitions pending if any shall stand closed.

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<br>

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SDI- V. DIWAKAR DEPUTY REGISTRAR

//TRUE COPY//

SECTION OFFICER

The Judicial Magistrate of 1^* Class, Sathyavedu

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The III Additional District Judge, Tirupati

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One CC to SRI. HARINADH NIDAMANURI Advocate [OPUC]

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Two CCS to PUBLIC PROSECUTOR. High Court of Andhra

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Pradesh at Amaravathi[OUT]

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One CC to Superintendent of Sub Jail, Tirupathi

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Three C.D.Copies

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HIGH COURT

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SV,J DATED:12/12/2023

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o
o
ff X
m
Uo 2 k JUM 202^ Co/'

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ORDER CRLRC.No.2023 of 2010

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ALLOWING THE CRLP

S. Shafiullah, v. the State of Ap Rep by Its Pp Hyd.

Case brief

What is this about?

What did the court decide?

S. Shafiullah, v. the State of Ap Rep by Its Pp Hyd.

Case brief

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What did the court decide?

What the court decided

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