State By Bhatkal Rural Police, Uttara Kannada District v. Manjunath

1. A collusion took place between a mini lorry bearing No. CME. 4255 and an Ambassador car bearing No. MEB.5270 on the National Highway No. 17 near Belke village close to Bhatkal Rural Police Station at about 5. p.m On 8-4-1994. The consequences were gory insofar as the driver of the car and 3 of the other inmates were killed and 5 of the remaining persons were injured. The police arrested the driver of the mini lorry, hereinafter referred to as LCV and charged him for having committed offences punishable under Section 279 read with Sections 338 and 304-A of the IPC. The allegation being that as a result of his having driven the vehicle in a rash and negligent manner that he has been responsible for the death of 4 persons and grievous injuries to 5 others. While the accused admitted that he was the driver of the LCV his defence was essentially one of denial insofar as it was hi contention that he was in no way responsible for what had happened as there was nothing to indicate that the incident was attributable to any acts on his part. The evidences essentially consistent of the 3 injured persons who were travelling in the car, the Motor vehicles Inspector who certified that both the vehicles were in fit and road worthy condition, and that the brakes were in order and the other formal witnesses. The Trial Court recorded the finding that despite the seriousness of the incident that the evidence falls short of establishing the ingredients of rashness and negligence and consequently acquitted the accused. The State has assailed the correctness of the order of acquittal.

2. I need to record my appreciation to both the learned Additional State Public Prosecutor Sri S.V Prakash and the respondents' learned Counsel Sri H.S Chandramouli for their considerable assistance to the Court in the hearing of the appeal and in particular, with regard to the various finer aspects of the case.

3. The appellant's learned Counsel has taken me through the entire record and his principal submission is that in motor accident cases the facts speak for themselves. He has very fairly and frankly accepted the position that the incident took place on a National Highway some distance away from a city, town or village and that even though there is no specific indication in the record as to what the density of the traffic was, that it would have been perfectly justifiable for the vehicles to have been moving at a relatively brisk speed. The first point made by the learned Counsel was that a special duty is enjoined on the drivers in such situations and particularly while driving on the national highway to exercise extra care and caution which is expected while operating a vehicle at high speed. His submission is that the first ingredient that the law enjoins upon him in such a situation is, the necessity of being able to exercise and retain full control over the vehicle at the speed at which it is being driven which presupposes the fact that if there are gradients of slopes, if there are turns or if there are poor road conditions that the driver must regulate the speed in order to be able to safely negotiate the vehicle in those conditions. What the learned Counsel emphasises is that the accused was the bigger of the two and that when he was driving a larger, heavier and more powerful vehicle that the responsibility on him was of a higher decree and from the evidence on record which indicates that the impact was so severe that both the right side wheels of the LCV were wrenched off and further more since the evidence indicates that the velocity of impact was so high that a virtually overloaded large and heavy car like an Ambassador car was not only smashed but that it spun around and came to a halt in the opposite direction. He relies solely on this material in support of his contention that it was most certainly the fault of the LCV insofar as it was this vehicle that hit the car and caused all the damage. At the same time, another very significant point made by the learned Counsel is that the Mahazar Exhibit P. 7 indicates that it was a relatively broad road, the tarred portion alone having a width of 24 feet and that even two large vehicles like buses could have safely crossed at high speed provided they were being operated with due care and caution. The learned Counsel submits that these facts alone are sufficient to establish both the ingredients of the charges, viz., rashness and negligence on the part of the accused.

4. The next head on which the appellant's learned Counsel placed heavy reliance was the evidence of the 3 passengers who have been examined. They have stated that there were 9 persons in the car, 5 in the rear seat and 4 in the front apart from several children the number appearing to be 5 or more and it is not absolutely clear as to whether the 9 adults included the driver or excluded him. The 3 witnesses are consistent in their evidence that because the car was over crowded and since there were several children in the car that the driver was keeping to a low speed and secondly that the accused was driving his LCV at a fast speed and thirdly, that all the 3 witnesses stated that it was the LCV which hit the car and not vice versa On the basis of this material, it is contended that there was no ground on which the accused could have been exonerated of the charges and that the Trial Court was certainly in error in having recorded an order of acquittal. The argument has been reinforced my pointing out that the 3 witnesses who were occupants of the car were virtually in the position of eye-witnesses, that they have no special animus against the accused and further more that even though they have been cross-examined at some length that their evidence has remained unshaken. The learned Counsel has submitted that if in a situation of this type where 4 persons have been killed and 5 have been injured the Court were to acquit the accused by holding that the standard of proof required by law has not been met, that it would be adopting too harsh and unreasonable a standard and that if the evidence makes out the requisite ingredients of the sections a conviction ought to have resulted. Dealing with this submission, I need to record that the burden of proof is on the prosecution and this burden has to be fully discharged to the extent that the law requires the prosecution to establish the charges beyond reasonable doubt and there can be no compromise with regard to this aspect of the law. Where the evidence is weak or where it falls short of discharging the burden to the extent and in the manner prescribed by the law in criminal cases the benefit will have to accrue to the accused. While I am in total agreement with the learned Counsel that having regard to the wanton recklessness exhibited by drivers of all categories of vehicles particularly buses and trucks on the highway that the Courts must be extremely strict and firm in their approach. The gravity is compounded by the appealing number of cases involving death, injury and massive loss of property on the highways in the State of Karnataka rendering it possibly the most dangerous State in the country as far as highway travel is concerned. The situation is hopelessly aggravated by total indolence displayed by the Government authorities represented by the Police Department and the Transport Department who exercise almost Zero level of supervision and control over the highways and who through such a callous attitude virtually encourage the majority of highway drivers to turn themselves into absolute killers. While the Courts need to take judicial notice of these factors particularly since despite repeated directions from this High Court, the Home Department has till date still not set up any highway patrols nor is action being taken in respect of the rash and negligent driving on the highways about which I shall need to make some further observations. While all of this may be true, the Courts need to ensure that the cases are evaluated with a sense of professional expertise insofar as no prejudice or bias can be allowed to cloud the judicial eye while evaluating motor accident cases.

5. The respondent's Counsel submitted that the only evidence on record in this case is that of the three eye-witnesses and their statement to the effect that the accused was driving the LCV at a fast speed is no indication of rashness and negligence. Apart from the fact that this was an open stretch on the National highways where every vehicle is entitled to move at a relatively vast speed what Mr. Chandramouli emphasises was that the finer ingredient of the law has been upheld by the Trial Court insofar as even if a vehicle is being driven fast as long as the driver had control over it insofar as it was not driven in a manner that endanger life and property, that the velocity is not the sole test of rashness and negligence. Also, dealing with the evidence that it was the LCV which collided against the car, what the learned Counsel points out is that the two vehicles did hit each other and therefore, from this fact it would still not be possible for a Court to establish conclusively as to which of the drivers was at fault or whether both of them were at fault. In this regard, he has submitted that the Courts invariably look to other heads of evidence from which it is possible for the Court to recount the incident and definitely Judge as to who was the guilty party and he has highlighted certain serious lacunae in this case. He has relied on the unreported decision of this Court reported in AIR 1980 Kar. Sh. N. 15 wherein, in an earlier decision of this Court in B.S Shastry v. State of Karnataka . Cr. R.P No. 25 of 1977., the learned Judge has recorded the fact that the sketch of the site of occurrence is of prime importance as also the position of the two vehicles, the width of the road and the situation all around that existed at that time and how the accused reacted during that situation in which he was placed. Mr. Chandramouli points out that no sketch has been prepared and that this situation is fatal to the prosecution case because the mahazar Exhibit P. 7 only sets out a general description of the vehicles and is nothing more than a panchanama whereas, the sketch would have provided a total picture to the Court of all factors including the level or otherwise of the road, whether it was straight or curved, whether there were any obstructions, what was the nature of the surface, whether any other vehicles were parked there and the like. Learned Counsel submits that the omission of this vital document is fatal to the prosecution case. While I am inclined to agree that it is extremely damaging in the present case, I need to uphold the submission canvassed by the learned Additional Standing Public Prosecutor that the sketch is only one more piece of assistance for the Trial Court and if there is other satisfactory evidence the non-availability of a sketch will not be ipso facto fatal to the prosecution.

6. Next, what was emphasised by the respondent's learned Counsel was that all the important factors such as the road surface, and other prevalent conditions have not been brought on record and these would have had a major bearing on the evaluation of rashness and negligence. The indication was given by pointing out that P.W 3 has admitted that the side of the road was in a rather bad condition with several pits. The submission was that if the road surface was bad as is often the case due to pot-holes or the like or if there was some other minor obstruction which forced the car driver to suddenry deviate, that this unexpected deflection alone could have caused the collision when the vehicles are passing relatively close to each other. Again, from the condition of the side of the road learned Counsel submitted that the prosecution evidence is silent with regard to the edges and as often happens, if the edges were extremely steep and thereby, vehicles were forced to remain on the tarred portion itself that this could at times brings them dangerously close to each other. These arguments were put forward for purposes of pointing out that on the existing record it would be difficult to rule out the possibility of a genuine accident.

7. Another head of argument concerns the number of persons in the car. While it is admitted that the LCV was fully loaded what Mr. Chandramouli was emphasizing was that despite its size if 9 adult passengers and 5 children are squeezed into an ambassador car the inevitable consequences would be that the driver would hardly have any room to even sit comfortably or for that matter to drive the vehicle safely. The first contention therefore is that merely because the driver of the car was died, the Court ought not to assume that he was not at all at fault particularly when it is demonstrated that the car was most certainly overloaded. Lastly, Mr. Chandramouli submitted that in an appeal against acquittal unless it is demonstrated that the findings of the lower Court are totally perverse or that the lower Court has overlooked important evidence or has recorded findings that resulted in a miscarriage of justice that the High Court ought not to interfere with the decision. His submission was that on the facts of this case no interference is called for.

8. Though the Additional State Public Prosecutor is right when he points out that the basic principle of res ipso loquitur applies to the accident and that the facts speak for themselves in the majority of motor accident cases, it is still necessary for the prosecution to establish beyond reasonable doubt that the accused was driving the vehicle in manner that was both rash and negligent and in cases of the present type the reverse position becomes equally necessary insofar as the prosecution must satisfy the Court that the rashness and negligence is not attributable to the opposite party which in this case happens to be the driver of the car. This case is unique because it has possibly thrown up for the first time a rare and unusual angle of the law which seems to have been hitherto overlooked in motor accident cases, viz., that a situation may arise whereby the driver of one of the vehicles is so hopelessly handicapped by circumstances that it is not the question of rashness and negligence on his or her part but it is more importantly a position of helplessness that has occasioned the accident. While it is true that the witnesses have stated that the LCV hit the car, what needs to be taken note of is as to whether the car got into a position whereby the accused could not avoid hitting the LCV The suggestion put to the witnesses that the car was overtaking another vehicle and had travelled to the wrong side of the road, has been denied, but, we do not have any clear cut and cogent evidence with regard to whether the accused was well-within his half of the road or not when the collision took place. There does appear to be some material to indicate that there was a curve in the road and if this is the position, there is a tendency for vehicles which are driven fast to swing further to the opposite side of the road than necessary and if this had occurred, on the State of the present record it is impossible to conclusively hold that it was the accused alone who was guilty. Again, the investigation has left several grow areas in this case, the first of them being with regard to the condition of the road surface. If the road surface was extremely bad or if there were potholes which the drivers were trying to avoid that could have caused deflection in the line of movement and again if the edges of the road were extremely sharp with a large gap between the level points of the road surface and the border, difficulties arise insofar as vehicles cannot even when required, go off the road. These are vital aspects of the case which the investigation ought to have taken note of. Again, the Motor vehicles Inspector has merely stated that the two vehicles were road worthy and that the brakes were in order. The more important aspect that has not been looked into is, with regard to the efficiency of the steering column of the two vehicles about which we have no evidence and it would be equally important for the Motor vehicles Inspectors to be directed to submit in their report comprehensive details with regard to the age and condition of the vehicles. Most of the cars and Maxicabs used on intercity routes are flogged round the clock without maintenance or with the worst quality of maintenance they are reduced to a condition whereby, even if they are capable of moving, they will still have to be regarded as highly unsafe from the engineering point of view. Next, we are left with the familiar position with regard to the manner in which goods vehicles are hopelessly overloaded and one does not know as to what type of load the LCV was carrying, whether it was stable, whether it was overloaded, etc. This Court is setting out all these aspects in the hope that hereinafter the police and the Transport authorities will concentrate on the finer and rudimentary aspects of the investigation and not deal with it in the casual and cavalier manner in which it is generally done, as in this case.

9. On the vital aspect of overloading this Court needs to highlight the fact that this is one more case wherein the admitted position is that the car was carrying either 9 or 10 adults and 5 childrens which is exactly more than double the permissible passenger load of the car. Even though the car is capable of moving in that condition the first causality is the safety aspect insofar as all the systems are under abnormal pressure and when it comes to the person operating the vehicle we are left with a familiar situation of the driver being jammed against the door, sitting at an uncomfortable angle hardly able to reach and operate the controls and holding on to the steering wheel from an oblique position. The Court needs to take judicial notice of the fact that all these taxies and Maxicabs are in an abnormal hurry to reach their destination and start back and in the process, the drivers have a tendency to over speed. It is true that the 3 witnesses have stated that the car was being driven slowly. The question that this Court needs to address itself to is as to whether the driver of the car with 9 to 10 adult occupants in it was in any position to operate it safely of whether he was driving under abnormal stress and physical pressure and from the evidence on record, in my considered view that the later position holds good. In such a situation even assuming that the car driver was keeping to a moderate speed, from the material on record it would be extremely difficult to hold that he would have been in a position to control the car properly on a turn and more importantly to take necessary evasive action if the situation required. It is on a combination of these considerations that I am of the view that even though prima facie there is some material against the accused that it would be Equally difficult to rule out the possibility of the car driver not having been able to control the vehicle properly and to have been responsible for the accident. As I have observed earlier, there is nothing on record to justify rashness and negligence on the part of the car driver, but the circumstances in which he was placed almost unequivocally indicates that he was so heavily handicapped that it would have been impossible for him to operate the vehicle safely and efficiently. It is only on this ground that the accused will be entitled to the benefit of doubt and that consequently, for reasons other than those recorded by the Trial Court the order of acquittal would still have to be upheld.

10. Before parting with this judgment, this Court needs to pass strictures in the severest and strongest terms against the transport and Police Departments who through their total negligence and complete disregard for human life and safety have permitted a state of utter callousness to exist on the national highways in the State. While the law enjoins upon the Police Department, and the Transport Department simultaneously to enforce the laws with regard to ensuring that taxies and transport vehicles do not carry more than the specified number of persons, the State of Karnataka has witnessed some of the most horrifying accidents in the recent past. In 3 of the cases that have brought distress to hundreds of families in the last one year, a bus which had a licensed carrying capacity of 45 persons and which plunged into a tank was found to be carrying 139 persons out of whom 28 were school children. In another accident where a bus was authorised to carry 30 persons and it had capsized causing a large number of deaths and injuries, it was again found to be carrying 143 persons out of whom 50 were travelling on the top of the bus. In two other cases, a Maxicab which met with a serious accident was licensed to carry 11 persons and it was found that it was carrying 39 persons and in another case of a car, like in the present instance, where all the occupants were killed, it was found that apart from the 13 persons inside the car there was a large amount of material being carried in the carrier and on the top of the vehicle weighing around 1 ton. This is a distressing and unpardonable state of affairs and it has come about only becauseof the refusal on the part of these two departments to enforce the law. In a large number of cases, the offenders are encouraged because they are permitted to operate in this fashion in total collusion with the law enforcement officers. When instances such as these come before the Court all that can be done is that the Court recommends to the authorities in the Government particularly those incharge of these departments that immediate corrective steps be taken, first of all by ensuring that the laws, rules and regulations are strictly enforced, that unqualified persons are prohibited from driving the vehicles, that the rules of the road are complied with and that substandard vehicles are not permitted to ply. The learned Additional State Public Prosecutor who has very ably assisted in the conduct of this case and also very competently, is requested to forward a copy of this judgment to the heads of the two departments in the State of Karnataka with a request that some improvement be brought about to this dismal state of affairs.

11. The appeal accordingly fails and stands dismissed. The bail bond, if any of the accused to stand cancelled.