REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1026 OF 2001

Renu Kunta Mallaiah  …Appellant

Vs.

State of A.P. …Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a learned

Single Judge of the Andhra Pradesh High Court dismissing the

Criminal Revision Petition filed by the appellant.  The accused

faced  trial  for  alleged  commission  of  offences  punishable

under Section 304-A of the Indian Penal Code, 1860 (in short

the ‘IPC’). The learned Judicial Magistrate First Class, Jagtial,

found the accused guilty and convicted him to  sentence to

undergo  rigorous  imprisonment  for  one  year  and a  sum of

Rs.4,000/- was imposed as fine with default stipulation.  In

appeal  the first appellate Court reduced the sentence to six

months but maintained the fine and the default stipulation.

The revision petition as noted above was dismissed.

2. Prosecution version in a nutshell is as follows:

On  9.11.1994  at  about  1800  hours,  at  Mallial  when

Thota Satish was playing by the side of the Road and when

Gandla  Buchaiah  (PW-11)  was  also  present  there  at  that

time, the accused herein drove the A.P.S.R.T.C. bus bearing

No.  AP9Z-6991  with  high  speed  in  a  rash  and  negligent

manner and dashed against Thota Satish, due to which, the

said Satish received bleeding injuries and while undergoing

treatment, the said Satish died in Civil Hospital, Jagtial. On

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the complaint given by Gandla Buchaiah, a case in Cr. No.

82 of 1994 under Section 304-A I.P.C., was registered against

the accused and copies of F.I.R. were sent to all concerned.

Subsequently,  the police  investigated the case  and charge-

sheet  was laid  against  the  accused  U/s 304-A I.P.C.,  and

after appearance of the accused before the Lower Court, he

was supplied with the documents and was also examined, for

which he pleaded not guilty of the charge u/s 304-A I.P.C. To

substantiate  the  above  charge,  the  prosecution  examined

PWs. 1 to 11 and Exs. P1 to P11 were marked. After closure

of the prosecution evidence, the accused was examined u/s

313  of  the  Code  of  Criminal  Procedure,  1973  (In  short

‘Cr.P.C.’) regarding the incriminating circumstances that are

appearing against the accused and he simply stated either

“false” or “does not know” for all the questions put to him. He

did not state anything about manner of accident at least for

the last question:  Do you wish to say anything about  this

case." he simply stated that there is nothing to say and he

did not explain being the driver of the A.P.S.R.T.C. bus as to

how exactly, the accident took place. Exs. D1 and D2 are the

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contradictory  portions  in  Section  161  Cr.P.C.  statement  of

PW. 5 and Ex. D3 is the contradictory portion in Section 161

Cr.P.C. statement of PW11. Except this, neither any defence

witness has been examined on behalf of the accused, nor the

accused himself came into the box to explain as to how the

accident took place.

Stand  of  the  appellant  before  the  trial  court,  First

Appellate Court and the High Court was that the evidence on

record  does  not  establish  that  he  was  driving  the  vehicle

stated to be involved in the occurrence or that he was driving

the  vehicle  in  a  rash  or  negligent  manner.   Same  was

reiterated in this appeal.

3. Learned counsel  for the respondent-State on the other

hand supported the judgment of the trial court and the High

Court.  PWs 4, 5 & 11 were stated to be eye witnesses.  PWs 4

&  11  stated  that  at  the  time  of  occurrence  it  was  dark.

Interestingly in the First Information Report the name of the

accused appellant  and bus No.  was indicated.   PW 11,  the

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informant stated that PWs 4&5 told him the number of bus.

He  admitted  that  he  is  illiterate  and  does  not  know  the

number of the bus. Interestingly, PWs 4&5 did not state that

they had either noted the number of bus or had told the PW

11 about the number of bus.  It was the accepted case of PWs

4, 5 & 11 that the offending vehicle after the occurrence sped

away from the place. If that was so, it is improbable that PWs

4&5  could  have  noted  the  long  number  of  the  bus.   The

investigating officer has stated that he could know the details

of the bus after about four days of the occurrence.  Both PWs

4 & 5 stated that the bus was being driven on the left side.

But PW 11 stated that the bus was being driven on the right

side.  The evidence on record shows that the bus hit the victim

on the right side and the boy was on the middle of the road.

PWs 4&5 have stated that they did not say anything about the

accident to PW 11. Contrary to this PW 11 stated that the bus

No. was given to him by PWs 4&5.  Evidence of PW 11 is also

to the extent that he was with the victim boy at the spot of

occurrence.  Strangely  he  has  not  suffered  any  injury.   In

contrast PWs. 4&5 have stated that there was no body near

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the  child.  In  view  of  the  aforesaid  unsatisfactory  nature  of

evidence, the prosecution cannot be said to have established

the accusations. The conviction as recorded by Courts below

is set aside.

4. Appeal is allowed.

………………………………….J. (Dr. ARIJIT PASAYAT)

………………………………….J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, October 16, 2008

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