THE HON'BLE SRI JUSTICE K.G.SHANKAR Criminal Revision Case No.1666 of 2005 Date: 19.10.2011 Between: M. Gopal ..... Appellant/accused. AND The State of A.P. rep by its Public Prosecutor, High Court of A.P., Hyderabad. .....Respondent. The Court made the following: THE HON'BLE SRI JUSTICE K.G.SHANKAR Criminal Revision Case No.1666 of 2005 JUDGMENT: The sole accused is the revision petitioner. He allegedly committed the offences under Sections 338 and 304-A IPC. After trial, the learned III Additional Judicial Magistrate of First Class, Tirupathi found the accused guilty for the offences under Sections 338 and 304-A IPC. The accused was sentenced to simple imprisonment for a period of six months and fine of Rs.300/- with appropriate default sentence for the offence under Section 304-A IPC. No separate conviction or sentence was recorded in respect of the offence under Section 338 IPC. The sole accused preferred appeal before the Sessions Court. The learned VI Additional Sessions Judge, Tirupathi dismissed the appeal. Aggrieved by the dismissal of the appeal, the sole accused preferred the present revision. 2. The point for consideration is whether the prosecution established the guilt of the accused beyond reasonable doubt? 3. The deceased by name Anjaneyulu was four years old. P.Ws.1 & 2 are his parents. P.Ws.1 & 2 are labourers. 4. The accused is the driver of a tractor and trailer bearing registration No.A.P 03V798 and A.P 03V800. 5. On 14-03-2000, P.Ws. 1 & 2 went to work as labourers to load the tractor driven by the accused with mud. They left their house at 5:30 a.m. They were accompanied by the deceased. At Cherlapalli Tank, the trailer of the tractor was loaded with mud. The tractor was returning to Cherlapalli Panchayat Office from the water tank. P.Ws.1 & 2 sat on the mud load along with the deceased. The deceased was in the lap of P.W.2. 6. There was a wide curve towards right to be manipulated. As the accused was manoeuvring the tractor over the curve, P.W.1 lost grip of her child. The child fell down from the trailer of the tractor. P.W.2 also fell down from the trailer. The child met with instantaneous death. P.W.2 sustained a grievous injury and a simple injury, the grievous injury being a fracture. The prosecution considers that the accident was on account of the rash and negligent driving of the tractor by the driver at the curve and that the accident would have been averted by the accused by careful driving. 7. Smt. Zareena Afsar, representing the learned Additional Public Prosecutor submitted that P.Ws.1 & 2 clearly speak about the rash and negligent driving by the accused and the resultant accident. That P.Ws.1 & 2 along with the deceased were traveling on the load in the trailer of the tractor is not in dispute. That the deceased fell down from the trailer and met his death is not in dispute. That P.W.2 also sustained injuries in the same accident is admitted. Further, there is no controversy that the accident occurred at the road curve leading from Cherlapalli Tank to Cherlapalli Panchyat Office. The only question is whether the accident was on account of the rash and negligent driving of the tractor by the accused. 8. Kumari M. Madhavi Priya, learned counsel for the accused contended that the claim of the prosecution cannot be accepted as the prosecution failed to examine any independent witnesses. In the present case, the prosecution examined six witnesses. The prosecution examined P.Ws.1 & 2 as eyewitnesses. It further examined P.W.3 who is a mediator for the inquest. P.Ws.4 & 5 are Medical Officers. P.W.4 conducted the postmortem over the dead body of the deceased. P.W.5 treated P.W.1. P.W.6 is the Investigating Officer. In other words, only P.Ws.1 & 2 were examined as the eyewitnesses for the incident proper. 9. The learned counsel for the accused contended that the accident occurred in a busy locality and that the failure of the prosecution to examine any independent witnesses is fatal to the prosecution case. 10. While I do not consider it appropriate to go thus far to hold that the non-examination of any independent witness is fatal to the prosecution case, I also agree with the contention of the learned counsel for the accused that the non-examination of any independent witness creates doubt as to the circumstances in which the accident occurred and whether it was a case of rash and negligent act on the part of the accused or otherwise. 11. Inter alia the learned counsel for the accused contended that no one was expected to travel in the trailer of the tractor and when P.Ws.1 & 2 sat over the mud in the tractor, they cannot blame that the driver of the tractor for any injury caused to them. I am afraid that the doctrine volenti non fit injuria has no application to criminal law. At the same time, P.Ws.1 & 2, who admittedly sat over the mud load in the trailer should be considered to have exhibited negligence on their part in traveling in the trailer, that too over the mud load. Again, this circumstance alone cannot be a ground to repudiate the case of the prosecution. 12. It may however be pointed out that the two circumstances cumulatively intensify the doubt about the rashness and negligence on the part of the accused and the establishment of the rashness and negligence of the accused beyond reasonable doubt. 13. That P.W.2 suffered injury in the accident is a fact. Her son indeed died in the accident. Was the accused responsible for the accident? 14. Where there is no independent evidence while independent evidence could have been available, the necessary inference is that the accident was not on account of the rashness of the accused but was on account of the carelessness on the part of P.W.2 and her unfortunate deceased son. In any event, the non- examination of any independent witness to support the prosecution story adds as a benefit of doubt in favour of the accused in this background. I, therefore, consider that the prosecution failed to establish the guilt of the accused beyond reasonable doubt. 15. The approach of the trial Court as confirmed by the appellate Court placing reliance upon the evidence of P.Ws.1 & 2 is erroneous and cannot be sustained. The conviction recorded by the trial Court consequently cannot be sustained. The accused in this background is found to be not guilty of driving the vehicle rashly and negligently. Once it is established that the prosecution failed to establish that the accused was driving the vehicle rashly and negligently, it follows that the accused was not guilty either for the offence under Section 304-A IPC or for the offence under Section 338 IPC. 16. The revision is accordingly allowed. The accused consequently is found not guilty for both the offences under Sections 304-A and 338 IPC for the reasons already set out and is acquitted of the same. His bail bonds shall stand discharged. The fine amount, if already paid by the accused shall be refunded to him. _________________________ JUSTICE K.G. SHANKAR Date: 19.10.2011 mrb