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                                                          REPORTABLE

                 IN THE SUPREME COURT OF INDIA

                CRIMINAL APPELLATE JURISDICTION

                CRIMINAL APPEAL NO.                 OF 2008                   (Arising out of SLP (Crl.) No.916 of 2008)

B. Nagabhushanam                                         ... Appellant

                                  Versus

State of Karnataka                                       ... Respondent

                             JUDGMENT

S.B. Sinha, J.

1.      Leave granted.

2.      Appellant was the driver of a bus bearing registration No. AP-10-Z-

5260.    He was driving the said bus on Bangalore-Hindupur road.          On

10.1.1999, at about 2:00 p.m. when the bus was passing through a village

commonly known as Kamalapura, it dashed against a child by name

Shantha, as a result whereof she died. Shantha was about 7 years old at that

time. A criminal prosecution under Sections 279 and 304A of the Indian

Penal Code was initiated against him. He was found guilty of the said

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offences. He was sentenced to one year’s simple imprisonment and to pay a

fine of Rs. 1,000/- for commission of the offence punishable under Section

304A and simple imprisonment for one month and to pay a fine of Rs.500/-

for the offence punishable under Section 279 of the Indian Penal Code. The

appeal preferred thereagainst by him was dismissed.       The High Court,

however, by reason of the impugned judgment modified the sentence

directing:

            "The order of sentence passed against the revision              petitioner for the offence punishable under Section 304-              A IPC is modified.          He shall undergo simple              imprisonment for six months and to pay a fine of Rs.              5000/-. In default of payment of fine amount, he shall              undergo simple imprisonment for one month. Out of the              fine amount of Rs.5000/- if deposited by the revision              petitioner-accused, a sum of Rs.4000/- shall be paid to              P.W. 6 Gowramma and remaining Rs.1000/- shall be              credited to the State exchequer."

3.    A limited notice was issued by this Court by an order dated 25.2.2008

only on the question of sentence.

4.    Mr. Kulkarni, learned counsel appearing on behalf of the appellant,

submits that keeping in view the facts and circumstances of the case, this

Court may also go into the merit of the matter and pass a judgment of

acquittal in favour of the appellant. Learned counsel contends that the very

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fact that in the First Information Report, it was alleged that the deceased

was standing on the left side of the road and the dead body was found on the

right side thereof is indicative of the fact that she all of a sudden ran along

the road resulting in the said accident. It was urged that apart from the

mahazar, the evidence was brought on record to show that the appellant was

driving the said bus rashly and negligently and, in any event, the question of

rash and negligent driving on the part of the appellant does not arise as the

speed of the bus was about 20 kilometers per hour. The doctrine of res ipsa

loquitur, the learned counsel urges whereupon reliance has been placed by

the courts below, cannot have any application in a criminal case.

5.    Ms. Anitha Shenoy, learned counsel appearing on behalf of the

respondent, on the other hand, submitted that for the purpose of finding out

the guilt on the part of the appellant, the entire circumstances must be

construed as a whole which are:

     i)     The evidence of the eye-witnesses;

     ii)    No mechanical failure in the vehicle was noticed;

     iii)   No case of error of judgment has been made out; and

     iv)    Appellant has not offered any explanation at all as to how the

            accident took place.

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6.    Both the trial judge, the appellate court as also the High Court

considered the matter in details.

     The learned trial judge categorically held that the bus was being

driven at a high speed. It further took into consideration that no cross-

examination was effected on the said question, stating:

                  "7. In this case the PW 1 one Sri. Chowdappa is                    the complainant. He has sworn to the facts that on                    the date of incident about 8-10 months back earlier                    to the date of his evidence in this case, the said                    witness deposed to the effect that on that day he                    was very near at a distance of about 25 feet from                    the place of accident and by that time the bus                    driven by the accused person from Bangalore to                    Hindupur direction dashed against the child and as                    a result of which the child sustained grievous                    injury to head and other parts of the body and as a                    result the child died at the spot. In this connection                    he has also given a complaint as per Ex. P.1 and                    his signature came to be marked as per Ex. P.1(a).                    The PW 1 has also identified the accused person                    who is responsible for the accident. He has also                    deposed about the mahazar as per Ex. P 2 and                    identified his signature at Ex. P 2(a). The cross                    examination conducted on behalf of accused                    person also supports the prosecution case. During                    the course of cross examination against it has been                    made clear about the distance, place of occurrence,                    direction.     On careful study of the cross                    examination discloses nothing has been elicited to                    disprove the case of the prosecution. It has also                    been elicited in the cross examination that the bus                    was driven in such a speed. Not even a single                    question was posed to him with regard to contents

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                  of Ex. P 2 and Ex. P 2(a), thereby the contents of                    mahazar remained unchallenged. In addition to                    other witnesses and evidence, the evidence of PW                    1 itself is sufficient to prove the guilt of the                    accused person, and this evidence is very helpful                    to the prosecution to prove the guilt of the accused                    person.

                  9.     Comparative study of evidence of PW 3 to                    PW 6 and PW 8 to PW 11 clearly establishes the                    case of the prosecution. All the witnesses have                    deposed about the rash and negligent driving of                    the bus by the accused person resulting in death of                    Shanthamma, aged about 7 years. All these                    witnesses have stated that they were standing                    separately at different places nearby the place of                    accident and that they have witnessed the accident                    as eye witnesses, and absolutely there is no                    controversy of contradictory evidence between                    each witnesses i.e. from PW 3 to PW 6 and PW 8                    to PW 11. The defence counsel has totally failed                    to establish that the driver of the bus is not                    responsible for the death of Shanthamma, and                    there is no rash and negligent driving on the part                    of the accused person. The contents of cross                    examination of all these witnesses also in the cross                    examination of PW 3, after the accident the bus                    was taken to the police station. As stated earlier                    PW 15 got released the bus from the police                    station."

     There is no reason to take a different view. It is not possible for us in

a case of this nature to reappreciate evidence.

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7.    Reliance by the appellant on the deposition of one of the prosecution

witnesses that the bus was being driven at a speed of 15-20 kilometers per

hour, in our opinion, has rightly not been accepted.

8.    The dead body of the girl was found 2 feet away from the bus. It was

only 3 feet away from the pavement on the right side of the road. The bus

admittedly did not have any mechanical failure. Appellant did not say that

there was an error of judgment on his part.

     The High Court while exercising its limited revisional jurisdiction

also discussed the case at some details.

     There is a concurrent finding of fact that the bus was being driven

rashly and negligently. The post mortem report was proved by PW 12 - Dr.

M. N. Raju. She sustained several external injuries. On dissection, the

following injuries were found:

                  "a) Right temporal region Depressed Wound                    present

                  b)    Normal clots present in the right temporal                    region."

9.           PW 1 is one Sri.Chowdappa. He is a witness to the accident.

According to him, the child sustained grievous injuries on head and other

parts of the body. In answer to a question put to him in cross-examination,

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he stated that the bus was being driven at a high speed. The mahazar, was

marked as Exhibit P-2. The contents of the mahazar was not challenged. It

was found by the learned trial judge that the evidence of PW.1 alone was

sufficient to hold that the appellant was guilty of the said offences. Other

prosecution witnesses were standing at different places. They had occasions

to see the accident from different directions. The spot mahazar disclosed

that there was a break-mark for about 20-25 feet on the road.

     Reliance placed by Mr. Kulkarni on Syad Akbar vs. State of

Karnataka reported in [AIR 1979 SC 1848] is not apposite. It proceeded on

the basis that doctrine of res ipsa loquitur stricto sensu would not apply to a

criminal case as its applicability in an action for injury by negligence is well

known. In Syad Akbar (supra), this Court opined :

             "Such simplified and pragmatic application of the notion              of res ipsa loquitur, as a part of the general mode of              inferring a fact in issue from another circumstantial fact              is subject to all the principles, the satisfaction of which is              essential before an accused can be convicted on the basis              of circumstantial evidence alone. These are: Firstly all              the circumstances, including the objective circumstances              constituting the accident, from which the inference of              guilt is to be drawn, must be firmly established.              Secondly, those circumstances must be of a              determinative tendency pointing un-erringly towards the              guilt of the accused. Thirdly, the circumstances should              make a chain so complete that they cannot reasonably              raise any other hypothesis save that of the accused’s              guilt. That is to say, they should be incompatible with

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           his innocence, and inferentially exclude all reasonable             doubt about his guilt."

     The maxim was not applied having regard to the fact of a said case

and on the finding that it was a case of error of judgment and the accused

gave a reasonable, convincing explanation of his conduct. The maxim res

ipsa loquitur was not found to be applicable.

     However, we may notice that the said principle was applied in a case

under the Prevention of Corruption Act in State of A.P. vs. C. Uma

Maheswara Rao & anr. [(2004) 4 SCC 399] in the following terms:

            "We may note that a three-Judge Bench in Raghubir             Singh v. State of Haryana [(1974) 4 SCC 560] held that             the very fact that the accused was in possession of the             marked currency notes against an allegation that he             demanded and received the amount is "res ipsa loquitur"

10.   Although a limited notice was issued, we have considered the

contentions raised by Mr. Kulkarni with all seriousness that they deserved.

11.   We are of the opinion that six months’ simple imprisonment and a

direction to the appellant to pay a fine of Rs.1,000/- for commission of the

offence punishable under Section 304A and simple imprisonment for one

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month and to pay a fine of Rs.500/- for the offence punishable under

Section 279 of the Indian Penal Code cannot be said to be shocking.

12.   We may, in this connection, notice that in Dalbir Singh v. State of

Haryana [(2000) 5 SCC 82], this Court opined:

           "13. Bearing in mind the galloping trend in road             accidents in India and the devastating             consequences visiting the victims and their             families, criminal courts cannot treat the nature of             the offence under Section 304A IPC as attracting             the benevolent provisions of Section 4 of the PO             Act. While considering the quantum of sentence,             to be imposed for the offence of causing death by             rash or negligent driving of automobiles, one of             the prime considerations should be deterrence. A             professional driver pedals the accelerator of the             automobile almost throughout his working hours.             He must constantly inform himself that he cannot             afford to have a single moment of laxity or             inattentiveness when his leg is on the pedal of a             vehicle in locomotion. He cannot and should not             take a chance thinking that a rash driving need not             necessarily cause any accident; or even if any             accident occurs it need not necessarily result in the             death of any human being; or even if such death             ensues he might not be convicted of the offence;             and lastly that even if he is convicted he would be             dealt with leniently by the court. He must always             keep in his mind the fear psyche that if he is             convicted of the offence for causing death of a             human being due to his callous driving of vehicle             he cannot escape from jail sentence. This is the             role which the courts can play, particularly at the             level of trial courts, for lessening the high rate of

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              motor accidents due to callous driving of                automobiles."

13.     In Rattan Singh v. State of Punjab [(1979) 4 SCC 719], this Court

held:

              "5. Nevertheless, sentencing must have a policy of                correction. This driver, if he has -to become a                good driver, must have a better training in traffic                laws and moral responsibility, with special                reference to the potential injury to human life and                limb. Punishment in this area must, therefore, be                accompanied by these components. The State, we                hope, will attach a course for better driving                together with a livelier sense of responsibility,                when the punishment is for driving offences.                Maybe, the State may consider, in cases of men                with poor families, occasional parole and                reformatory courses on appropriate application,                without the rigour of the old rules which are                subject to Government discretion."

14.     We, therefore, do not find any merit in this appeal which is dismissed

accordingly.

                                              .....................................J.                                                      [S.B. Sinha]

                                              .....................................J.                                                        [Lokeshwar Singh Panta]

New Delhi; May 13, 2008