PUBLIC PROSECUTOR Vs. GOKARAKONDA SUBBARAO

JUDGEMENT

(1.) THIS is an appeal by the State against the judgment of the learned III Additional Judicial First Class Magistrate Vijayawada acquitting the Respondent of the charges under Sections 304 -A and 337 Indian Penal Code. The case against him was that on 21 -11 -1967 at about 8 -40 A.M. he drove the bus MDR 2503 rashly and negligently on Kaleswararao, Market -Kothapet Road near Gandhi Park, Vijayawada, swerved the bus to the extreme right of the road so as to get on the pavement and hit an electric pole crushing a woman, Appayyamma, to death. In the course of the same transaction it was also alleged that injuries were caused to two passengers travelling in the bus.

(2.) SEVERAL persons examined in support of the prosecution case turned hostile, but P. Ws. J, 4 and 8 did not. P.W. I stated in his evidence that he was travelling in the bus and that when the bus reached the Gandhi Park, it swerved to the extreme right side of the road, got upon the pavement and dashed against an electric pole. He also stated that the driver did not apply brakes when the bus got up the foot -path, but the bus came to a halt on hitting the electric pole. At various stops the driver had previously stopped the bus by applying brakes, P.W. 4 was the conductor of the bus at the time of the incident. He stated that he was issuing tickets when suddenly he heard a sound and the bus came to a stop. He found that the bus had gone upon the foot -path and hit an electric pole which was bent as a result of the impact. He found an old woman injured. P.W. 8 who was going along the Kothapet road towards the river taking children to the school in his rickshaw, saw the bus going over the footpath and hitting an old woman. He stated that the bus did not come with speed, but added that he did not hear any horn being blown. He found an old woman injured caught between the bus and the electric pole. P.W. 11 the Sub -inspector of Police, who was informed about the occurrence by the accused himself, went to the scene of offence and arranged to send the old woman and two other injured persons to hospital for treatment. He received information later that the woman died in the hospital. He has stated in his evidence that the scene of offence is at the junction of the old Municipal office road and park road and that the road is a cement concrete road 21 1/2' wide with raised foot -path 6" higher than the level of the road over the side and 6.2' wide on one side and 9. 2' wide on the other. The bus was found facing north. The right wheels of the bus were completely over the eastern foot -path. The bumper of the bus was bent and touching the electric pole. He found dried -up -blood on the bumper of the bus and pieces of flesh sticking to the bumper. The electric pole was also bent. P.W. 7 the Motor Vehicles Inspector of Vijayawada, on receipt of a requisition from the, Sub -inspector of Police, went to the scene and examined the vehicle. He found the front bumper badly damaged and the right side main spring shackle broken; the tie rod was bent, the left side centre bolt was broken the wind screen glass was broken and the front grill dented. He examined the brakes and found them to be in good working order. He gave his opinion that the accident was not due to any mechanical defect. In cross -examination he stated that a hydraulic brake may suddenly fail sometimes, but he denied in such circumstances the vehicles would wobble. In re -examination he stated that if hydraulic brakes fail, the brakes would not come back to normal without repairs. The accused in his statement under Section 342 Code of Criminal Procedure admitted that the bus dashed against the pole, but stated "Brakes had failed. Control was lost. Rishaw came as an obstruction". The accused also examined D. Ws. 1 and 2, who claim that they travelled by the bus that day and that the accused swerved the bus towards the right to avoid a rickshaw and dashed against the electric pole crushing old woman between the bus and the electric pole. They have also stated that when the bus was about 10 yards from the pole the accused cried out that the brakes had failed. D.W. 1 admitted in his cross examination that though he was sitting by the side of the accused in the bus, he did not see the accused applying the brakes. D.W. 2 himself a bus driver, admitted in cross examination that when brakes fail, the vehicle can be brought to a stop by switching off the engine, or by changing the gear.

(3.) THE learned Public Prosecutor urges that rashness or negligence is a matter which can be inferred from the circumstances of the case and that in the present case he submits that the circumstances are such that there can only be one inference viz., that the accused drove the vehicle in a rash or negligent manner.