1. Assailing the Judgment dated 02.04.2015 in Criminal Appeal No.82 of 2014 made by learned VI Additional Sessions Judge, Kakinada confirming the Judgment of conviction and sentence passed by the learned Additional Judicial Magistrate of First Class, Peddapuram in C.C.No.517 of 2012 dated 15.04.2014, revision petitioner preferred this revision case.

2. The parties are being referred to as per their positions before the trial Court, for the sake of convenience and clarity.

3. The case of the prosecution is that, on 08.07.2012 at 11.30 A.M, at Gorinta Village of East Godavari District, while the deceased Srikakolapu Appalakonda, wife of Veeraraghavulu was crossing the road, the driver of Tata Ace mini van bearing No.AP31TA 2485 drove the same in a rash and negligent manner and dashed Smt. Srikakolapu Appalakonda and as such, she sustained head injury and on the way to Government Hospital, Kakinada she succumbed to the injuries, and a case in Crime No.169 of 2012 was registered against the accused.

4. At the culmination of trial, the trial Court found the accused guilty for the offence under Section 304A IPC and sentenced to suffer simple imprisonment for a period of six months. Feeling aggrieved by the said Judgment of conviction and sentence, accused preferred Criminal Appeal bearing No.82 of 2014 and the same is also dismissed by confirming the judgment of trial Court.

5. The grounds urged by the revision petitioner are that both the Courts ought to have come to conclusion that the prosecution utterly failed to prove the ingredients of Section 304A IPC and none of the witnesses examined by the prosecution stated that the accused drove the lorry in a rash and negligent manner, PW2/eye witness of the accident has not supported the case of the prosecution, both the Courts failed to appreciate the evidence in proper prospective and failed to assign justifiable reasons to come to conclusion that the accused committed the offence under Section 304A IPC.

6. Heard Sri G. Rama Gopal, learned counsel for the revision petitioner and Ms. P. Akhila Naidu, learned Assistant Public Prosecutor.

7. On hearing both sides and upon perusing the material placed on record including the impugned order dated 02.04.2015 passed by the learned VI Additional Sessions Judge, Kakinada, the point that would arises for consideration is:

                  Whether the judgment dated 02.04.2015 passed by the learned VI Additional Sessions Judge, Kakinada, is sustainable in facts and law or it suffers from any material irregularity?

8. This Court is exercising its jurisdiction to interfere with the impugned order by way of the present revision case under Section 397 r/w 401 of Cr.P.C. In this regard, it is to be noted that in Amit Kapoor vs. Ramesh Chander and Another (2012 9 SCC 460), the Hon’ble Supreme Court in para 12, 18, and 20 held thus:

                  “12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.

                  18. It may also be noticed that the revisional jurisdiction exercised by the High Court is in a way final and no inter court remedy is available in such cases. Of course, it may be subject to jurisdiction of this Court under Article 136 of the Constitution of India. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in such cases.

                  20. The jurisdiction of the court under Section 397 can be exercised so as to examine the correctness, legality or propriety of an order passed by the trial court or the inferior court, as the case may be. Though the section does not specifically use the expression “prevent abuse of process of any court or otherwise to secure the ends of justice”, the jurisdiction under Section 397 is a very limited one. The legality, propriety or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest i.e. when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The section confers very wide power on the Court to do justice and to ensure that the process of the court is not permitted to be abused.”

9. So, it is clear that Section 397 r/w 401 Cr.P.C gives every High Court the power of revision in the form of supervisory jurisdiction to examine the record of any Court situated within its jurisdiction to satisfy the correctness, legality, or propriety of any finding, sentence or order of such inferior Court. In fact, as enumerated in sub-section 1 of Section 401 of Cr.P.C, the High Court while exercising such jurisdiction under revision has all the power enjoyed by the Court of Appeal under Sections 386, 389 and 391 of Cr.P.C and, it also enjoys any power of the Court of Sessions under Section 307 of Cr.P.C. The revisional jurisdiction of a Court can be invoked where there is gross error, or the impugned decision is contrary to the provisions of law or the finding recorded is based on no evidence or the material evidence necessary for disposal of the case has been ignored or the judicial discretion has been exercised arbitrarily or perversely. The High Court is free to exercise its revisional powers to avoid any kind of miscarriage of justice.

10. Now, a question arises as to what would constitute a rash or negligent act. As per Section 304A IPC, whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. So, the doing of a rash or negligent act which causes, death is the essence of Section 304A. There is a slight distinction between a rash act and a negligent act. Rashness conveys the idea of recklessness or doing an act without due consideration and negligence connotes want of proper care. A rash act, therefore, implies an act done by a person with recklessness or indifference to its consequences. A negligent act, on the other hand, refers to an act done by a person without taking sufficient precautions or reasonable precautions to avoid its probable mischievous illegal consequences. At this stage, it is to be mentioned that in Mohammed Aynuddin @ Miyan vs. State of Andhra Pradesh (AIR 2000 SC 2511), wherein, Hon'ble Apex Court has discussed in detail as to what constitute a rash or negligent act and held thus:

                  "A rash act is primarily an overhasty act. It is opposed to deliberate act. Still, a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."

11. Further, in Braham Dass vs. State of Himachal Pradesh ((2009) 3 SCC Criminal 406), while discussing the legal position with respect to an offence under Section 279/304A IPC, the Hon'ble Apex Court has inter alia held thus:

                  "Obviously, the foundation in accusations under Section 279 IPC is not negligence. Similarly, in Section 304A, the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Section 279 or 304A, it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved."

12. So, in order to sustain conviction of an accused under Section 304A IPC, the most important ingredient which needs to be established by the prosecution is the act of rash or negligent driving by the accused and in order to prove rash or negligent driving of the accused, prosecution primarily relied upon the testimonies of PWs 1 and 3. It came in the evidence of PW1 that on 08.07.2012, the deceased went to attend a function at Gorinta Village and while she was crossing the road, one van which was coming from Prathipadu dashed the deceased, she fell down and sustained severe bleeding injuries and PW3 stated that when he was present in his pan shop, one van, which was coming from Prathipadu in a speed manner, dashed one lady aged about 70 years while she was crossing the road and as a result, she fell down and lost conscious. Except that, there is absolutely no material to come to conclusion with regard to the rashness or negligence of the accused. PW2, who is said to have been witnessed the accident, has not supported the case of prosecution and though his 161 Code of Criminal Procedure statement is marked as Ex.P2, nothing useful material is elicited in the cross examination by the learned Assistant Public Prosecutor. Except merely marking scene observation report and rough sketch, prosecution has not produced evidence clearly describing the surrounding circumstances of the scene of offense and it came in the evidence that while the deceased crossing the road, accident occurred. Accident and involvement of vehicle is not disputed by the accused. Prosecution failed to adduce evidence whether the accident occurred while the deceased crossing the road on zebra crossing lines or on the main road. Record clearly reveals that it is a main road and the accident occurred near a center of Gorinta Village. No evidence or any other material was placed on record by the prosecution to show the manner in which the accused was driving the said vehicle to show the rashness or negligence and no photographs of the spot are taken. PW-2, who is said to have been witnessed the accident did not support the case of prosecution. Only the available evidence is that of PW-3. He also simply stated that the van which was coming from Prathipadu came speedily and dashed the deceased. There is no evidence placed on record to show the speed of the vehicle or the manner in which it was being driven to show rashness and negligence on the part of the accused. In the absence of any material on the record, no presumption of rashness or negligence could be drawn by invoking the maxim res ipsa loquitur.

13. In State of Karnataka vs. Satish (1998 8 SCC 493), the Hon'ble Apex Court has held at para No.4 thus:

                  “4. Merely because the truck was being driven at a “high speed” does not bespeak of either “negligence” or “rashness” by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by “high speed”. “High speed” is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by “high speed” in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of “rashness” or “negligence” could be drawn by invoking the maxim “res ipsa loquitur” This is a serious infirmity and lacuna in the prosecution case.”

14. Therefore, an inference of an act of rashness or negligence cannot be drawn from a simple testimony of the witness i.e. PW-3 that the vehicle was being driven in a speed manner.

15. Succinctly put, there being an overall infirmity and unfilled lacuna in the case set up by the prosecution, the prosecution was not able to prove its case beyond reasonable doubt that the accused was indeed driving the van in a rash or negligent manner, which resulted in the demise of Smt. Srikakolapu Appalakonda. Therefore, the necessary ingredients of Section 304A IPC are neither fulfilled nor attracted. So, in the given facts and circumstances and basing on the material available on record, there was no occasion for the applicability of the principle of res ipsa loquitur. More so, merely because the van allegedly being driven at a speed and dashed Smt. Srikakolapu Appalakonda leading to her demise, it is not adequate for a Court of law to hold that the accused was being rash or negligent.

16. For the foregoing reasons, this Court is of the considered view that the prosecution failed to establish the act of rashness or negligence on the part of the accused, and thereby, miserably failed to prove the guilt of the accused beyond reasonable doubt.

17. In the result, the present Criminal Revision Case is allowed, and the impugned judgment dated 02.04.2015 passed by the learned VI Additional Sessions Judge, Kakinada in Criminal Appeal No.82 of 2014 is be and hereby set aside and consequently, accused is acquitted for the offence under Section 304-A Indian Penal Code.

As a sequel thereto, pending miscellaneous petitions, if any, shall stand closed.