THE HONOURABLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.1482 of 2002 DATE:29.07.2009 Between: Dandugula Hanumanthu … 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.1482 of 2002 ORDER: This Criminal Revision Case, under Sections 397 and 401 of the Code of Criminal Procedure, is directed against the judgment dated 04.10.2002 in Criminal Appeal No.69 of 1997 on the file of the VII Additional District & Sessions Judge, Krishna at Vijayawada (Fast Track Court), whereunder and whereby the judgment dated 08.07.1997 in C.C.No.343 of 1994 on the file of the V Metropolitan Magistrate, Vijayawada, was confirmed. 2. The petitioner-accused was found guilty by the trial court of the offence under Section 304-A of IPC and accordingly convicted and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for three months. He was also convicted of the offence under Section 338 of IPC and sentenced to undergo rigorous imprisonment for two months and to pay a fine of Rs.200/-, in default to undergo simple imprisonment for ten days. He was further convicted of the offence under Section 337 of IPC and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/-, in default to undergo simple imprisonment for one month. 3. The brief facts that are necessary for disposal of the present revision may be stated as follows: On 19.09.1993 during night time, a lorry bearing No.ADH 199, being driven by its driver-petitioner, was proceeding towards Peddavutapalli along with coolies and cleaner to unload the sand therein, and when the lorry reached near KM stone No.16 near Nidamanuru, due to rash and negligent driving of the petitioner, it dashed against another lorry which was coming in opposite direction, as a result, four persons died and seven persons sustained injuries. Basing on Ex.P.1 report given by P.W.1, the S.I. of Police, IV Traffic Police Station, Vijayawada registered a case in crime No.106 of 1993 against the driver of the offending lorry. Later, he observed the scene of occurrence in the presence of mediators, held inquest over the dead bodies of the deceased persons, prepared rough sketch to the scene of occurrence and sent the injured persons to the hospital. The doctors, who conducted autopsy on the dead bodies of the deceased, opined that they died due to the injuries sustained in the accident. The S.I. of Police, IV Traffic Police Station, Vijayawada, after arrest of the petitioner and after completion of the investigation, filed charge sheet against the petitioner-accused for the offences punishable under Sections 304-A, 338 and 337 of IPC. The petitioner pleaded not guilty. 4. To substantiate the charges, the prosecution examined P.Ws 1 to 25 and got marked Exs.P.1 to P.36. Exs.D.1 to D.9 were marked on behalf of the defence. 5. The trial court, accepting the evidence of P.Ws. 1 to 5, found the petitioner guilty of the offences under Sections 304-A, 338 and 337 of IPC and accordingly convicted and sentenced him as stated supra. On appeal, the said conviction and sentences were confirmed. 6. Now, the point for determination is, whether the judgments of the courts below are correct, legal and proper? 7. The learned counsel appearing for the petitioner has contended that there are no eyewitnesses to the occurrence. Though the prosecution examined P.Ws. 1 to 5 to substantiate its case, their evidence would not reveal that the accident was caused due to rash or negligent driving of the offending vehicle by the petitioner, and that they have admitted in their evidence that they were sleeping in the lorry at the time of the accident. Therefore, the rashness or negligence, which is to be proved by the prosecution, is not established. He has also contended that except the evidence of P.Ws.1 to 5, there is no other evidence to show that the accident was caused due to rash or negligent driving of the offending vehicle by the petitioner. 8. On the other hand, the learned Public Prosecutor representing the State has contended that the concurrent findings of the courts below need not be interfered with, inasmuch as the findings are based upon the evidence on record, and that in view of the fact that the accident took place in the wee hours of the day, the maxim res ipsa loquitur would apply to the case on hand. 9. In view of the fact that the coolies were sleeping on the sand load in the offending lorry, they would not be in a position to know how the accident took place. There cannot be any dispute that the prosecution has to prove the rash or negligent driving of the offending lorry by its driver, so as to convict him for the offences under Sections 304-A, 338 and 337 of IPC. 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 taken in the circumstances of the case. The accident took place in the wee hours of the day i.e. at 3.20 a.m. which can be said to be a fast sleeping time. Therefore, at that point of time, the driver has to take all necessary precautions in driving the lorry slowly and cautiously, especially when another vehicle was coming in opposite direction. The visibility, during night time, would not be the same as in the case of day time. Therefore, a greater responsibility is cast upon the driver in such circumstances to drive the lorry carefully. When a vehicle is coming in opposite direction, necessarily the driver has to slow down the vehicle and stop it, if necessary. No doubt, speed is not the criterion to determine the rash or negligent act, but, at the same time, the driver must drive the vehicle in a controllable speed and in the event of any unforeseen act, he could be in a position to stop the vehicle immediately. 10. Though P.Ws. 1 to 5, who are the coolies, stated that while overtaking another vehicle going ahead of it, the offending vehicle went out of the road and dashed against a tree, they did not speak about the offending lorry dashing against another lorry coming in opposite direction. On their own saying, they were sleeping on the sand load at the time of the accident and they woke up after the accident. From the other evidence on record also, it is clear that all the coolies were sleeping on the sand load at the time of the accident. Therefore, they might not be in a position to see what was happening. 11. P.W.6, who is the cleaner of the offending lorry, has stated that the offending lorry dashed against another lorry coming in opposite direction, as a result, the offending lorry turned turtle and dashed against a tree. He was declared hostile by the prosecution, as he has not supported its case. 12. The maxim res ipsa loquitur means ‘the thing speaks for itself’. There cannot be any dispute that the maxim res ipsa loquitur would not be applicable to the facts of the present case, as there were no eyewitnesses to the accident. Though P.Ws.1 to 6 were projected as eyewitnesses to the accident, but on their own showing, P.Ws 1 to 5 were sleeping on the sand load at the time of the accident and P.W.6 did not support the case of the prosecution. 13. The impact was very severe, as a result, the bonnet, radiator, steering system, window screen, ark, bumber, body, battery, chasis of the offending lorry were completely damaged. The Investigating Officer found sand with bloodstains at a distance of 60 ft., the offending lorry, which dashed against a tree, at a distance of 75 ft. from the road, and two babul trees in a falling condition. Ex.P.3 is the scene of observation report and Ex.P.34 is rough sketch of scene of occurrence, which show about the existence of physical features of scene of occurrence. Similarly, Exs.P.9 to P.13 positive photographs show about the condition of the offending lorry after the accident. 14. The evidence on record would go to show that while overtaking another vehicle, the offending lorry dashed against another lorry coming in opposite direction in the first instance, and thereafter it went further and dashed against a tree, which would go to show that the driver was driving the offending lorry in an uncontrollable speed. When a vehicle is coming in opposite direction, the driver of the offending lorry has to necessarily slow down his lorry and after passing the said vehicle, he can overtake the vehicle which was going in front of his lorry. But, the driver of the offending lorry has not taken that precaution. In those circumstances, dashing against the opposite lorry itself is a rash and negligent act. Because of severity of the accident, four persons died and three persons sustained injuries in the accident. Therefore, both the courts below found the petitioner-accused guilty for the offences under Sections 304-A, 338 and 337 of IPC. None of the findings is shown to be perverse and contrary to the evidence on record and the judgments of the courts below are correct, legal and proper. In the absence of any illegality in the findings of the courts below, the judgments of the courts below need no interference. 15. In the result, the criminal revision case is dismissed, confirming the judgment dated 04.10.2002 passed by the VII Additional District & Sessions Judge, Krishna at Vijayawada (Fast Track Court) in Criminal Appeal No.69 of 1997. _____________ K.C. BHANU, J 29th July, 2009 cbs THE HONOURABLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.1482 of 2002 (Dismissed) 29th July, 2009 CBS