IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FOURTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT: THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1679 of 2009 Between: The Public Prosecutor, High Court of A.P., Hyderabad Appellant AND Shaik Saida, S/o. Khasim Saheb, Aged 40 years, Muslim, Ashok Nagar Colony, 4th Ward, Peddaavulapalli Village, Vungutur Mandal, Gannavaram Taluk, Krishna District …Respondent / Accused The Court made the following: THE HON'BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1679 of 2009 JUDGMENT: 1. This appeal is directed by the state under Section 378(3) of Code of Criminal Procedure, 1973 (‘Cr.P.C.’, for brevity) against the judgment of acquittal dated 26.11.2002 made in C.C.No.42 of 2000 on the file of the Court of the Additional Munisif Magistrate, Kandukuru, whereunder and whereby, the sole accused was found not guilty for the offences under Section 304-A of Indian Penal Code and Section 134 read with Section 187 of the Motor Vehicles Act. 2. The case of the prosecution is that on 28.02.2000, the deceased and P.W.s 1 and 2 boarded a private bus at about 03:00 P.M. and they got down the bus at Rajulapem Cross Roads and while they were crossing the road, another bus bearing No. AP 5 T 5203 came in the opposite direction and dashed against the deceased, as a result of which, he died. P.W.1 lodged complaint with the police. The police registered a case and held inquest on the dead body of the deceased and sent the dead body to the postmortem examination. The crime vehicle was inspected by the Motor Vehicle Inspector and he found that the accident was not caused due to any mechanical defects in the vehicle. 3. When the accused was examined under Section 251 of Cr.P.C., he denied the offences, pleaded not guilty and claimed to tried. 4. To substantiate its case, prosecution examined P.W.s 1 to 7 and got marked Ex.P.1 to P.8. No evidence, either oral or documentary, was examined on behalf of the accused. 5. The trial Court, after considering the evidence on record, came to the conclusion that the deceased died because of his sudden crossing of the road and accordingly, acquitted the accused. Challenging the same, present appeal is filed. 6. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt against the accused for the offences under Section 304-A of Indian Penal Code and Section 134 read with Section 187 of the Motor Vehicles Act. 7. Heard both sides. 8. To prove the offence punishable under Section 304-A I.P.C., the prosecution has to establish that the accident was caused due to rashness or negligent driving of the driver. Rashness does not consist of 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 gross culpable neglect or failure to exercise such care and caution that may be required to be taken in the circumstances of the case. 9. Though the Appellate Court has got full power to re- appreciate the evidence, it will slow in interfering with the order of acquittal in view of the fact that there is a presumption under law that the accused is presumed to be innocent unless contrary is proved. That presumption of innocence is further strengthened by an order of acquittal. Unless the findings are perverse or contrary to law or not based upon any admissible offence, ordinarily, this Court would not interfere with the same. The taking place of the accident is not in dispute. The death of the deceased in sudden is also not in dispute. It is almost indisputable that the accident was not caused due to any mechanical defect of the vehicle. Similarly, the accused was driving the vehicle at the time of the accident. 10. The entire case rests upon the evidence of P.W.1 and P.W.2. Having categorically stated that when they along with the deceased were crossing the road from behind the bus, another bus came in the opposite direction and dashed against the deceased. While crossing the road, the pedestrians are required to see on either side of the road to ensure that no vehicle is coming on either direction. That precaution has been completely overlooked by the deceased, P.W.1 and P.W.2. That too the deceased, P.W.1 and P.W.2 were crossing the road from behind the stationed bus. In those circumstances, it may not be possible for the driver of the crime vehicle to avoid the accident, however slow he was driving the vehicle. 11. The trial Court placed reliance on the decision of Supreme Court in Mahadeo Hari Lokre v The State of Maharashtra[1], in which it was held that if the pedestrians are crossing the road without taking notice of the approaching vehicle on the road, there is every possibility of them dashing against the vehicle, however slow the driver was driving the vehicle. 12. The said finding cannot be shown to be illegal or improper or incorrect. The finding is based upon proper appreciation of the evidence on record. Hence, the judgment of the trial Court acquitting the accused of the offences punishable under Section 304-A of the Indian Penal Code and Section 134 read with Section 187 of the Motor Vehicles Act needs no interference by this Court. 13. In the result, the Criminal Appeal is devoid of merits and is accordingly, dismissed, confirming the judgment of acquittal dated 26.11.2002 made in C.C.No.42 of 2000 on the file of the Court of the Additional Munisif Magistrate, Kandukuru. ________________ JUSTICE K.C.BHANU November 24, 2009 BVV [1] AIR 1972 Supreme Court 221