Decided on March 15,1971

Tirumalasetti Subha Rao Appellant
THE STATE Respondents


Madhava Reddy, J. - (1.) TWO trucks bearing registration No. s. proceeding from Machilipatnam to Vijaya -A.P.K. 5625 and A.P.V. 5000, the first wada and the other in the opposite direction , collided at mile -stone No. 21 on 6 -7 -1969 at 2 -00 A.M The truck bearing No. A.P.K. 5625 which was carrying a load of rice bags capsized and fell across the road. The cleaner of that lorry who was sitting on the rice bags was caught under the rice bags and died on the spot. The other truck proceeded to a distance of 84 feet on the right side and after touching a canal bund came to a halt. The driver of the lorry A.P.K 5625 reported the accident to P.W. 7, who recorded the report Ex. P. 8 and issued F.I.R. Ex. P. 7 and took up investigation. Some time later, the driver of the other lorry also gave report. Both the drivers were prosecuted for the offence under Section 304 -A Indian Penal Code. The learned Magistrate tried both the cases together and convicted each of the accused to undergo rigorous imprisonment for six months. The convictions and sentences have been confirmed by the learned Sessions Judge. Crl. Revision Case No. 572 of 70 is by the driver of the lorry A.P.V. 5000 referred to in the Courts below as accused No. 1 and Crl. Revision Case No. 576 of 70 is by the driver of the lorry A.P.K. 5625 referred to in the Courts below as accused No. 2.
(2.) THERE is no direct evidence in this case. The only witness examined in support of the prosecution to prove that the accused were guilty of rash and negligent driving and the same resulted in the death of the cleaner of A.P.K. 5626 is P.W. 3 the cleaner of the other lorry A.P.V. 5000. He turned hostile to the prosecution and was allowed to be cross -examined. His evidence is, therefore, of no use. The learned Sessions Judge himself observed that only P.W. 3. who could have given the true version was not prepared to support the prosecution story and went on to seek support for the prosecution story from his statement before the police marked as Ex. P -2. According to the learned Sessions Judge, Ex P -2 shows that P.W. 3 had stated before the police that "if any one of the drivers had moved to his left side giving way to the other vehicle, this accident would not have occurred". Firstly statement of a witness before the investigating officers cannot be treated as evidence against the accused. That apart, the portion referred to by the learned Sessions Judge is only one in the nature of an opinion and not of evidence. Once the evidence of P.W. 3 is not accepted there is no other evidence upon which the conclusion as to whether one or two drivers or both of them were driving the vehicles rashly and negligently, could be based. The learned Sessions Judge observed throughout the judgment that the circumstances point out to the fact that both the drivers were negligent. The circumstances pointed out by him are that the accident took place in the centre of the road. For this, reliance is placed on Ex. P -8 the sketch of the place of accident. In Ex. P -8 the centre of the road is not marked ; nor the place where exactly the two trucks collided is marked. In fact, P.W. 5 the Motor Vehicles Inspector who has examined the vehicles as well as the place where the accident occurred, states that he cannot state the distance between the place of collision and the place where A P.V. 5000 was standing He however states that A.P.K. 5625 is at the place of collision. But he had to admit that he had not studied any subject to say the probabilities of collision. He also states that he is expected to give evidence only in regard to the condition of the vehicles involved, but not to the possibilities as to how the collision took place. Finally he admits that it is not possible to say as to which driver was at fault. The statement, that A.P.K. 5625 fell at the place of the collision itself is a mere surmise for which there is no evidence whatsoever. P.W. 7 the Sub -Inspector of Police also states in his cross -examination that A.P.K. 5625 fell at the place of contact and that the other lorry proceeded to a distance of 81 feet after collision. P.W. 3 who was a witness to the collision has not supported this version, while P.Ws. 7 and 8 were not witnesses to the occurrence. They have no special knowledge to ascertain and state where exactly the collision occurred. It is not as if the two lorries could not have collided unless both the drivers were at fault. It is not the prosecution case that any of the drivers went to the wrong side or that even before the collision the truck went off the road. It it quit probable that when the two lorries were approaching in the opposite direction and the cement road was narrow so as to be just sufficient for the two lorries to pass each other, the wheels of one or the other truck came off the cement road and swerved to one side resulting in the collision. All that P.W. 7 states is that tyre marks and skid marks were visible for both the lorries on the cement road and from that he concluded that both the lorries were coming on the cement road in the opposite direction. When the width of both the lorries put together is only 15 feet as found by the court below, there was nothing wrong in both the lorries coming on the cement road which was 18 feet wide. There is no evidence that the lorries were in fact being driven at such a high speed as to deem it rash and negligent. The mere fact that one of the lorries turned turtle is not an indication that lorry was also being driven rashly and negligently. The learned Session Judge erred in holding that since the lorry A P.K. 5625 turned turtle it was being driven at a very high speed. On the contrary, that would show that it was moving at a lower speed than the other lorry. Both the lorries were fully loaded and the slightest impact of the one on the other could have resulted in tilting. The fact that lorry A.P.V. 5000 went to a distance of about 84 feet before it came to a halt also, to my mind, is not sufficient to hold that it was going at a very high speed after the collision. The driver might have lost balance and before he could bring it to a halt it might have travelled a distance of about 25 to 30 yards. When a fully loaded lorry goes off the road after the collision, it could be well -nigh impossible to bring it to a dead stop immediately. In the circumstances, the mere fact that the truck travelled a distance of 84 feet is not in my opinion, sufficient to hold that it was being driven at a very high speed. The learned Sessions Judge was clearly in error in observing that it was only the accused who should have known how exactly the collision had taken place. He seems to have drawn an adverse inference to the accused when he observed that "it is only the Appellants who should know how exactly the collision had taken place but they are not prepared to divulge the truth and each wants to throw the blame on the other". It is not part of the duty of the accused to support the prosecution case. There is absolutely no evidence on behalf of the prosecution to bring home the guilt of the accused. The circumstance that the lorry turned turtle in the centre of the road, which is relied upon in this behalf by the learned Public Prosecutor is not established by any evidence. But assuming that it is proved it is not sufficient to establish the essential ingredient of the offence viz., rashness and negligence of the drivers. In any case, which one of the two drivers or both of them were guilty of this act is not proved beyond all reasonable doubt. An accident may occur even due to the negligent act of only one of the drivers. It is not necessary that both the drivers should have been negligent. Unless it is clearly established by the evidence on record as to which one of the two drivers was driving the truck rashly and negligently and which, to my mind is not established by the statements of P.Ws. 7 and 8 which alone were referred to by the prosecution, none of the drivers could be convicted.
(3.) IN the result, both the Criminal Revision Cases are allowed. The convictions and sentences passed against the accused are set aside and they are acquitted.;

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