SHAKILA KHADER Vs. NAUSHEER CAMA

JUDGEMENT

(1.) These two appeals are by special leave granted by this Court against the judgment of a learned Judge of the Andhra Pradesh High Court. By that judgment the learned Judge set aside the conviction of the lst respondent of offences under Secs. 304-A, 337, 338 and 427 I.P.C. passed by the 3rd City Magistrate, Hyderabad and confirmed on appeal by the Principal Sessions Judge, Hyderabad. The facts giving rise to these appeals are as follows.

(2.) In the evening of the 4th June,1967 seven young men, including the 1st respondent whom we shall hereinafter refer to as the accused, went in a Herald car, driven by the accused, from Hyderabad to Secunderabad and were passing along the Tank Bund Road connecting the two cities. There was an accident in which the car and a scooter were involved as a result of which the rider of the scooter died and one of the occupants of the car died a few days later. P.Ws. 3 and 4 were the eye witnesses to the accident and P.Ws. 5, 6 and 7, who were among the occupants of the car, were treated as hostile and cross-examined by the prosecution. D.W. 1 was also one of the eye witnesses. Both the trial Court as well as the appellate Court on an exhaustive consideration of the evidence came to the conclusion that it had been established that the accused was driving his car in a rash and negligent manner and was responsible for the accident. On revision, however, the learned Judge of the High Court took the view that both the courts below have failed to judge the story of the prosecution with a view to find out whether the said incident could have taken place in the manner alleged by the prosecution and that there is no critical appraisal by them. He thought that if the car was really going at a high speed and also hit against an electric pole there cannot be on the pole merely a stain of blue colour which tallies with the colour of the scooter and that there must have been much more damage to the pole. He also thought that the further fact that the car travelled another 45 feet and hit against the parapet wall and then turned turtle showed that the car must have been travelling at an extremely high speed but there is a little blue paint on the pole and a faint stain of gray colour on the parapet wall. He thought that if the prosecution had brought on record the extent and particulars of the damage to the car, the Court would have been in a better position to assess the truth of the prosecution story. He has further observed that page No. Ws 3 and 4 were silent as to how the scooter got entangled into the car and then was dragged. He also held that the place of the accident indicated in the plan had not been proved by the prosecution by any evidence to be the same. He therefore came to the conclusion that the prosecution had not made an attempt to place a clear picture of the occurrence before the Court so as to enable it to assess whether the petitioner was driving the car in a rash or negligent manner when the accident took place. He thought that page No. Ws. 3 and 4 did not have the capacity to fix the speed of the car and it cannot be said that the speed of the car when it met with the accident was so high that it amounted to an act of culpable rashness on the part of the accused. Finally he came to the conclusion that the accident must have taken place in the twinkling of an eye and it is difficult to believe that the witnesses were in a position to see how actually the occurrence took place and it is just possible that they have reconstructed the story drawing on their imagination. As a consequence he allowed the revision and set aside the conviction. The Criminal Appeal No. 50 is by the widow of the deceased scooter rider and Criminal Appeal No. 51 is by the State.

(3.) It appears to us that the learned Judge has not only exceeded the scope of his powers while exercising the Court's revisional jurisdiction but has completely misdirected himself in regard to the appreciation of the evidence. We have evidence in this case that the width of the road at the point where the accident took place was 30 feet 10 inches and the accident took place at a point 9 feet 3 inches from the edge of the road on the wrong side. As the car driven by the accused was going from Hyderabad to Secunderabad the accused was on the wrong side of the road when the accident took place. After the accident the car hit an electric pole and the parapet wall on the wrong side of the road. The learned Judge is not right in saying that the place of accident indicated in the plan has not been proved by the prosecution by any evidence to be the same. The plan, Ex. P-19, drawn by the investigating officer, P.W. 21 as well as the evidence of P.W. 9, who speaks to the measurements taken by the police and the preparation of the Panchnama. Ex. P-8, which bears his signature, and gives evidence that its contents are correct prove the exact point of impact between the car and the scooter. As against the evidence of P.Ws. 3 and 4 that the accused overtook a motor cycle, a bus and an Ambassador car and was going on the wrong side of the road and that was how the accident occurred, the explanation attempted by the accused in his statement given under Section 342 Cr.P.C. was that he was going behind the bus and the scooter came and hit him. If that was so the accident could not have taken place on the wrong side of the road. Nor could the scooter, even if it had overtaken some other vehicles, got behind the bus and hit at the car. According to the accused he swerved to the left in order to avoid the scooter and when he swerved to the left to avoid the scooter his car was going off the road and in order to bring it back on the road he swerved the car towards the right due to which it hit the parapet wall and overturned. This story is wholly unacceptable. If he had swerved his car to the left it should have hit the parapet wall to the left and not the parapet wall on the right.