THE HONOURABLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.996 of 2002 DATE: 29.07.2009 Between: Manikonda Venkateswararao … Petitioner And The State of A.P. rep. by Public Prosecutor, High Court of A.P., Hyderabad. … Respondent THE HONOURABLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.996 of 2002 ORDER: This Criminal Revision Case, under Sections 397 and 401 of the Code of Criminal Procedure, is filed by the petitioner challenging the judgment dated 08.07.2002 in Criminal Appeal No.418 of 1999 on the file of the III Additional Sessions Judge, Guntur, whereunder and whereby the conviction of the petitioner of the offence under Section 304-A of IPC and sentence of simple imprisonment for one year, and also the conviction of the offence under Section 337 of IPC and sentence to pay fine of Rs.300/- in default to undergo simple imprisonment for 15 days, as imposed by the Special Mobile Magistrate, Guntur, by judgment dated 21.07.1999 in C.C.No.254 of 1998, were confirmed. 2. The brief facts that are necessary for disposal of the present revision may be stated as follows: On 06.03.1997 the petitioner-accused allegedly drove a lorry bearing No.AP 26T 6629 in a rash and negligent manner at K.M. stone 6/388 near Kondavagu bridge within the limits of Chowdavaram village, while proceeding from Chilakaluripet to Guntur, and dashed against a tractor bearing No.ADG 3056, which was coming in opposite direction, as a result, two persons namely Adiyala China William Raju and Jonnalagadda Jonesh, died, and another person sustained injuries. Basing on a report given by P.W.1, the police registered a case in crime No.40 of 1997 against the petitioner-accused. Thereafter, the Investigating 2 Crl.R.C.No.996 of 2002, KCBJ Officer observed the scene of occurrence, held inquest on the dead bodies of deceased persons, and thereafter sent the dead bodies for post-mortem examination. The petitioner himself surrendered before the police on 09.03.1997 and after his arrest, police seized the trip sheet relating to the offending vehicle. After completion of investigation, the police filed charge sheet against the petitioner- accused for the offences punishable under Sections 304-A and 337 of IPC. The accused pleaded not guilty. 3. To substantiate the charges, the prosecution examined P.Ws.1 to 9 and got marked Exs.P.1 to P.12. No oral or documentary evidence was adduced on behalf of the accused. 4. Basing upon the evidence of P.Ws. 1 and 4 coupled with Exs.P.4 and P.10, the trial court as well as the lower appellate court found that the petitioner was driving the offending lorry rashly and negligently, resulting in the death of two persons and causing injuries to P.W.1, and accordingly, he was convicted and sentenced as stated supra. On appeal, the said conviction and sentences were confirmed. 5. Now, the point for determination is, whether the judgments of the courts below are correct, legal and proper? 6. The learned counsel appearing for the petitioner has contended that there are no eyewitnesses to the occurrence to show that the accident was caused due to either rash or negligent driving of the tractor or involvement of the offending lorry or driving of the offending lorry by 4 Crl.R.C.No.996 of 2002, KCBJ the petitioner-accused, and therefore, the finding recorded by both the courts below with regard to identity of petitioner as driver of the lorry at the time of the accident, is perverse. Hence, he prayed to set aside the convictions and sentences recorded against the petitioner. 7. On the other hand, the learned Public Prosecutor appearing for the State has contended that the concurrent findings of both the courts below need not be interfered with, inasmuch as they are based upon the evidence on record, that the evidence of P.Ws.1 and 4 would clearly go to show that the accident was caused due to rash or negligent driving of the offending lorry by the petitioner, that Ex.P.4 coupled with Ex.P.10 would go to show that the petitioner was driving the offending lorry at the time of the accident, and therefore, there are no grounds to interfere with the findings of the courts below. 8. For an offence punishable under Section 304-A of IPC, prosecution has to prove rash and negligent driving of offending vehicle by its driver. Rashness does not consist in high speed, but consists of not taking proper care and caution in driving the vehicle and not following the rules of road safety. Negligence, on the other hand, is a gross culpable neglect or failure to exercise such care and caution that may be required to be taken in the circumstances of the case. One of the deceased persons was driving the tractor at the time of the accident on the left side of the road. The evidence of P.Ws. 1 and 4 would clearly go to show that at the time of the accident, the tractor was going on its left side, which means the driver of the tractor was observing the driving rules. If a vehicle dashes 4 Crl.R.C.No.996 of 2002, KCBJ against another vehicle, which is going on its left side, such dashing itself is a rash or negligent act. But, in this case, the driver of the offending lorry has not taken such care and caution that may be taken in the circumstances of the case. Therefore, from the evidence of P.Ws.1 and 4, it is clear that the offending lorry came to the wrong side of the road and dashed against a tractor which was going on its left side. Therefore, both the courts below, placing reliance on the evidence of P.Ws.1 and 4, found that the accident was caused due to rash or negligent driving of the offending lorry by the petitioner- accused. Such finding is not shown to be perverse or contrary to the evidence on record. 9. So far as the involvement of the lorry bearing No.AP 26T 6629 is concerned, Ex.P.4-scene of observation report would go to show that the said lorry involved in the accident. Within three days from the date of the accident, the petitioner himself surrendered before the police and produced Ex.P.10 trip sheet. The trip sheet would clearly go to show that the petitioner was the driver of the offending lorry. The learned counsel for the petitioner has contended that except the trip sheet, there is no other evidence and that the trip sheet was fabricated by the police. There is no other reason for P.W.7- Investigating Officer to fabricate the trip sheet, which contained the signature of the petitioner-accused. If really the petitioner has not signed on Ex.P.10-trip sheet, nothing would have prevented him to send the document to handwriting expert for comparison of the disputed signature in Ex.P.10 with admitted signatures. The trial court compared the signature of the petitioner in Ex.P.10-trip sheet with that of the admitted signatures and came to the conclusion 5 Crl.R.C.No.996 of 2002, KCBJ that both the signatures were made by the same person. Therefore, Ex.P.10-trip sheet would clearly go to show that the petitioner was driving the offending lorry at the time of the accident. 10. No doubt, P.Ws.1 and 4 did not identify the driver of the offending lorry involved in the accident nor speak about its number. However, the Investigating Officer, who rushed to the scene of occurrence immediately after the accident, after registration of Ex.P.1 report, noted the number of the lorry in Ex.P.4 - scene of observation report. Thereafter, the accused himself surrendered and produced Ex.P.10 trip sheet, which would clearly go to show that the petitioner was driving the offending lorry. There cannot be any dispute under the Motor Vehicles Rules (for short ‘the Rules') that trip sheet has to be maintained in form No.50 of the Rules by transport vehicles. Ex.P.10- trip sheet was issued for transporting of rice to Vijayawada in the lorry bearing No.AP 26T 6629. Except giving a suggestion that the petitioner-accused has not surrendered before the police and produced the trip sheet, nothing has been elicited in the cross- examination of P.W.7-Investigating Officer. 11. The learned counsel for the petitioner relied upon a decision in Ravilla Prasad Vs. State of A.P. rep. by Public Prosecutor, High Court of A.P., Hyderabad[1]. In the said case, no ratio was laid down and basing on evidence available on record, it was held that there was no rashness or negligence on the part of driver of the vehicle. Hence, this decision has no application to the facts of the case on hand. 6 Crl.R.C.No.996 of 2002, KCBJ 12. Similarly, the learned counsel for the petitioner relied upon a decision in K. Nageswararao Vs. State of A.P. rep. by Public Prosecutor[2] wherein it was held that except Ex.P.5, there is no other material to prove that the accused was the driver at the time of the accident and that he drove the vehicle in a rash and negligent manner, and that what is written in Ex.P.5 cannot be substantive evidence and prosecution must prove the rash and negligence independently. But, in this case, there is evidence of P.Ws.1 and 4 which would clearly go to show that the tractor was going on its left side and the offending lorry came wrong side and dashed against the tractor. Hence, the said decision has no application. 13. The learned counsel for the petitioner also relied upon a decision in Suruvu Parshaiah Vs. State of A.P.[3] wherein, on facts, it was held that there was no evidence on record that the accident took place due to rash and negligent driving of the bus driver. Therefore, the said decision has no application. 14. The learned counsel for the petitioner also placed strong reliance upon a decision in K. Dhananjaya Rao Vs. State of A.P.[4] wherein it was held that the prosecution shall always produce the property involved in the accident, and that if they failed to produce the property involved in the incident or found at the scene, the accused is certainly entitled to get benefit of doubt and the prosecution itself has to blame for such sorry 7 Crl.R.C.No.996 of 2002, KCBJ state of affairs. In the present case, when the accident is not in dispute, the question of producing the offending lorry before the court does not arise. More over, the question to be decided for the offence under Section 304-A of IPC is, whether the driver was negligent or rash in driving the offending lorry at the time of the accident?. Therefore, the above decision has no application. 15. For the aforesaid reasons, the findings recorded by the courts below are based upon proper appreciation of evidence on record, and none of the findings is shown to be perverse or contrary to the evidence on record. In the absence of any illegality in the findings of the courts below, the judgments of the courts below need no interference. 16. In the result, the criminal revision case is dismissed confirming the judgment dated 08.07.2002 passed by the III Additional District & Sessions Judge, Guntur in Criminal Appeal No.418 of 1999. _____________ K.C. BHANU, J 29th July, 2009 cbs THE HONOURABLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.996 of 2002 (Dismissed) 29th July, 2009 CBS [1] 2006 ALT (Cri.)-2-14 [2] 2003 ALT (Cri)-2-326 [3] 2006 ALT (Cri)-1-182 [4] 2004 ALD (Cri)-2-88