THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.1707 of 2004 Date: 20.08.2011 Between: Bingi Kanakaiah … Petitioner/ A.1 AND The State of A.P., rep.by Public Prosecutor, High Court, Hyderabad. … Respondent/ Respondent THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.1707 of 2004 ORDER: In a ghastly accident that occurred during the small hours of 24.09.1995, the jeep bearing registration No.MZW-9791 rammed a stationed lorry bearing registration No.AP-15-T-1893 at Peddapalli Arch (Kaman). In the accident, as many as three persons died and more than six persons sustained injuries. The first accused, who is the sole revision petitioner, was the driver of the jeep. The driver of the stationed lorry was arrayed as second accused. 2. The trial Court found A.2 not guilty of the offences under Sections 304-A and 337 of the Indian Penal Code (IPC). A.1 was found guilty of the offence u/s.304-A IPC as well as for the offence u/s.337 IPC and was sentenced to Rigorous Imprisonment (R.I.) for a period of two years and six months respectively. Fine at Rs.2,000/- and Rs.500/- respectively were imposed for the two offences. The trial Court directed that the sentences should run concurrently. The benefit u/s.428 of the Criminal Procedure Code (Cr.P.C.) was accorded to the first accused. 3. A.1 preferred appeal before the III Additional Sessions Court, Karimnagar. In a well-written judgment barring for unfortunate quoting of plasita in the judgment, the learned III Additional Sessions Judge found no merits in the appeal and dismissed the appeal in toto. Hence, the revision. 4. PW.1 is the main victim in this case. PW.2 is his wife, PW.3 is his son while PWs.4 and 6 are his daughters. He was a resident of Godavarikhani. He was working as an electrician. On 23.09.1995, PW.1 along with the members of his family including his children Prathiba and Pranath were went to Hyderabad for site seeing in the jeep driven by A.1. Hari Kishan Jain, who was a friend of PW.1, along with the members of his family, also accompanied PW.1 and the members of his family in the same jeep for the site seeing venture. By about 2.15 a.m. i.e., during the small hours of 24.09.1995, by the time the jeep reached Peddapalli Arch, A.1 allegedly drove the jeep in a rash and negligent manner and dashed the stationed lorry driven by A.2 from behind. The children of PW.1 by name Prathiba and Pranath as well as Harikishan Jain died in the accident meeting with instantaneous death. As many as nine persons including PW.2, PW.3 and the members of the family of Harikishan Jain sustained bleeding injuries. 5. After the accident, PW.1 went to the Police Station and lodged a complaint under Ex.P.1. Police later shifted the injured to the Government Hospital, Peddapalli for treatment. 6. All these facts are more or less admitted. The revision petitioner/A.1 raised a two-fold defence. One of his contentions was that he had not been driving the jeep in a rash and negligent manner at the time of accident. His other defence was that the driver of the stationed lorry (A.2) parked the lorry on the middle of the road negligently without any signals of caution. However, it is his further contention that at the time of the accident, a lorry approached from the opposite direction of the jeep having been driven at high speed in a rash and negligent manner and that A.1 turned his jeep aside to avert the disaster of head on collision with the lorry. 7. Sri K. Ram Reddy, learned counsel for the revision petitioner/A.1 contended that when A.1 swerved the jeep to the left side to avert colliding with opposite arriving lorry, the jeep would have moved smoothly had the lorry of A.2 not been parked on the middle of the road without any signals of caution. It is, thus, contended by the learned counsel for the revision petitioner that the accident was not on account of any negligence on the part of A.1 and that at most it is a case of inevitable accident. He placed reliance upon Section 81 IPC and contended that where the accident occurred in the process of averting another accident by A.1, A.1 is saved by Section 81 IPC. More about this defence later. 8. It is the case of the learned counsel for the revision petitioner/A.1 that no one actually saw the accident and that there was no evidence that the accident was on account of the rash and negligent driving of A.1. I am afraid that the contention of the learned counsel for the revision petitioner in this regard cannot be countenanced. PWs.1 to 6 deposed that the accident was on account of the rash and negligent driving of A.1. They further deposed that A.1 was driving the vehicle rashly and at high speed through and through and that A.1 did not pay heed to the advice, direction and guidance of PW.1 and others to go slowly. It is the case of the witnesses that the accident would not have occurred if A.1 had been driving the vehicle cautiously. The evidence in this regard remained intact even after the cross-examination of PWs.1 to 5. 9. It is the case of A.1 that PWs.1 to 5 were sleeping at the time of the accident, as the accident occurred at about 2.15 a.m. The learned counsel for A.1 contended that all the passengers in the jeep in PWs.1 to 6 were dog-tired on account of hectic visit to various places at Hyderabad, that the witnesses were sleeping at the time of accident and that their evidence that the accident was on account of the rash and negligent driving of A.1, therefore, cannot be accepted. The suggestion of A.1 to the witnesses that the witnesses were sleeping at the time of accident was denied by the witnesses. Pws.1 to 6 corroborated each other regarding the mode and manner of the accident. All of them in one voice spoke about the rash and negligent driving of A.1 and about the circumstances in which the accident occurred. I, therefore, am constrained to conclude that the accident was due to the rash and negligent driving of jeep by A.1. 10. Indeed, the learned Pubic Prosecutor contended that when a moving jeep dashes a stationed lorry from behind, the only presumption could be negligent driving of the driver of the jeep. I do not wish to go into these moot questions, where the evidence of PWs.1 to 6 is categorical that the accident was due to the rash and negligent driving of the jeep by A.1. 11. The learned counsel for A.1 contended that A.2 parked his lorry on the middle of the road without any cautious signals. Indeed, PWs.1 to 5 admitted that they had not noticed whether the lorry was exhibiting any cautious signals such as a parking light or not. Assuming that the lorry did not carry any cautious signal, the assumption as to the circumstances of the accident would become crystallised. However, where there is no evidence that the lorry of A.2 was parked on the middle of the road and did not carry any cautious lights, I am afraid that I cannot reach a conclusion that the accident was due to the rash and negligent driving of lorry by A.2. It is for the defence to establish the story that the lorry did not carry cautious lights where the prosecution discharged its burden of establishing the rash and negligent driving on the part of A.1 by examining PWs.1 to 6. 12. The accused was not able to produce any evidence in support of his contention that the lorry was not carrying parking lights and other cautious signals. Therefore, I have no alternative but to conclude that A.2 parked his lorry by following the traffic norms of applying cautious lights. 13. The most important defence is that it is a case of inevitable accident. Section 81 IPC reads “81. Act likely to cause harm, but done without criminal intent, and to prevent other harm.--- Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property. Explanation.--- It is question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or execute the risk of doing the act with the knowledge that it was likely to cause harm.” 14. It is the case of the accused that the accident occurred when A.1 was preventing another harm. It was observed in Veeda Menezes v. Yusuf Khan[1] that harm as referred in section 81 IPC is physical injury. Reading Section 81 with Veeda Menezes (supra), it is clear that A.1 would stand protected even if the act of A.1 caused injuries or deaths if A.1 was acting with a view to avoid physical injury. First, it may be noticed that even if A.1 wanted to avoid the accident and injuries, the accident did occur causing injuries and deaths. 15. Secondly, A.1 must establish the defence before he seeks the application of Section 81 IPC to his case. It may be recalled that it is the stand of A.1 that a lorry approached from the opposite direction of the jeep, that the lorry was driven in a rash and negligent manner by its driver and that A.1 swerved the jeep to the left side in order to avert collision with the lorry. There is no evidence for this defence. Added to it, A.1 did not take this stand in his examination u/s.313 (1)(b) Cr.P.C. Indeed, this position was suggested to witness after witness. However, the registration number of the said lorry was not furnished, nor any of the details to identify the lorry were furnished. The suggestions to the witnesses remain suggestions. A.1 did not choose to depose. More important, he did not even choose to take this stand in his examination u/s.313 (1)(b) Cr.P.C. I, therefore, consider that the claim of A.1 in this context should be rejected. 16. In this context, I may refer to the evidence of PW.7. PW.7 deposed that the accident occurred on the middle of the road. It is the contention of A.1 that A.2 parked the lorry on the middle of the road without any cautious signals. Even PW.7 did not state positively that the lorry did not exhibit any cautious signals. I cannot draw any adverse inference that the accused drove the vehicle cautiously and that the accident was on account of any fault on the part of A.1. 17. It may be recalled that the onus of establishing that the accused falls within the general exemption lies upon the accused in view of Section 105 of the Evidence Act. Where A.1 took the stand that he is hit by Section 81 IPC, it is for A.1 to prove the same. A.1 failed to let in cogent and convincing evidence to establish his case. There is no alternative in this background but to hold that the prosecution established the guilt of A.1 beyond reasonable doubt. Barring for the rash and negligent driving of A.1, neither the deaths nor the injuries to witnesses would have occurred. I therefore unhesitatingly conclude that the accident was on account of the rash and negligent driving of A.1. Consequently, the offence u/s.304-A IPC and the offence u/s.337 IPC are made out. As many as 10 persons sustained injuries in the said accident. However, the prosecution did not choose to file wound certificates of any of witnesses other than post-mortem reports of the three dead persons. It, therefore, is not clear whether 10 persons sustained simple injuries or grievous injuries. The trial Court rightly concluded that 10 persons sustained simple injuries. Consequently, the offence u/s.304-A IPC on three counts for the offence u/s.337 IPC on 10 counts are made out. However, the trial Court does not appear to have questioned A.1 and A.2 u/s.251 Cr.P.C. for the offence u/s.304-A IPC on three counts and for the offences u/s.338 and 337 IPC on 10 counts. The questioning would appear to be that both the accused were guilty of offences u/s.304-A, 337 and 338 IPC for causing deaths and injuries. I, therefore, see no reasons to disagree with the conviction of A.1 u/s.304-A IPC as well as u/s.337 IPC as confirmed by the appellate Court. The revision is liable to be dismissed so far as the convictions against A.1 are concerned. 18. Regarding the quantum of sentence, it may be recalled that A.1 was convicted and sentenced to R.I. for a period of two years and fine of Rs.2,000/- for the offence u/s.304-A IPC and six months R.I. and fine of Rs.500/- for the offence u/s.337 IPC. The fines attracted default sentences. Where the offence occurred was in 1995 and where A.1 was 25 years old at the time of offence, I deem it appropriate that the sentence of imprisonment deserves to be reduced to one year while maintaining the fine. 19. Accordingly, the revision is dismissed so far as the conviction of revision petitioner/A.1 for the offence u/s.304-A and 337 IPC is concerned. The sentence of R.I. for 2 years for the offence u/s.304-A IPC as recorded by the trial Court and confirmed by the appellate Court is modified to the sentence of R.I. for a period of one year. The sentence of R.I. for a period of six months for the offence u/s.337 IPC, as awarded by the trial Court and affirmed by the appellate Court is modified to Simple Imprisonment for a period of three months. The fine recorded by the trial Court and confirmed by the appellate Court, however, is maintained. Both the sentences shall run concurrently. The petitioner is, indeed, entitled to the benefit u/s.428 Cr.P.C. The bail bonds of the revision petitioner/A.1 stand cancelled. The revision petitioner shall surrender forthwith before the trial Court to undergo the remaining part of the sentence. _________________ K.G. SHANKAR, J Date: 20.08. 2011 Isn [1] AIR 1966 SC 1773