Andhra Pradesh High Court - Amravati
Palagoni Sekhar vs The State Of A.P. on 4 March, 2024
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
MONDAY ,THE FOURTH DAY OF MARCH
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE A V RAVINDRA BABU
CRIMINAL REVISION CASE NO: 1273 OF 2009
Between:
1. PALAGONI SEKHAR, S/o. Lakshmaiah R/o. Tatikollu Village,
Devarakonda Mandal, Nalgonda District.
...PETITIONER(S)
AND
1. THE STATE OF A P, High Court of A.P., Hyderabad.
...RESPONDENT(S)
Counsel for the Petitioner(s): SR. MD SALEEM
Counsel for the Respondents: PUBLIC PROSECUTOR
The Court made the following:
ORDER:
Challenge in this Criminal Revision Case is to the Judgment, dated 28.07.2009 in Criminal Appeal No.26 of 2009 on the file of learned IV Additional District and Sessions Judge, Ongole, whereunder the Additional Sessions Judge dismissed the Criminal Appeal filed by the appellant, confirming the conviction and sentence against them in C.C.No.284 of 2008, dated 19.02.2009, on the file of the Court of Special Judicial Magistrate of First Class, Excise Court, Ongole, for the offence under Section 304-A Indian 2 Penal Code, 1860 (for short, 'the IPC'), but modified the simple imprisonment of two years into six months.
2. The parties to this Criminal Revision Case will hereinafter be referred as described before the trial Court for the sake of convenience.
3. The case of the prosecution in brief, according to the contents of charge sheet filed by the Sub-Inspector of Police, Maddipadu Police Station in Crime No.136 of 2007 against the accused namely Polagoni Sekhar, S/o Lakhsmaiah, is as follows:
(i) LW.1 Thannirup Adilakshmi is the wife of the deceased.
The deceased is Thanniru Thirupathaiah, S/o Tirupathaiah. He is the resident of Ghantapalem, Ongole and he is a rikshaw puller. The deceased acted as Kerosene hawker on part-time basis.
(ii) On 23.10.2007, at about 03.00 a.m., the deceased and LW.5-Kunchala Srinu, left Ongole along with kerosene drum rickshaw with a view to go to Doddavaram Village to distribute the kerosene. After having a tea at Throvagunta Village, they were going towards Doddavarappadu Village. After crossing Maddipadu village, accused driver of lorry bearing No. AP 16 TW 1638, while proceeding on the same direction, drove the vehicle in a rash and negligent manner and without taking precautionary measures and lost control over the vehicle and hit to the kerosene rickshaw of 3 the deceased, resulting in which the deceased received fatal injuries and died on the spot.
(iii) On 23.10.2007 at 07.00 a.m., on receipt of a report of the accused, LW.13-the S.I. of Police, Maddipadu Police Station registered a case in Crime No.136 of 2007 under Section 304-A I.P.C. and investigated into. He visited the scene of offence, prepared observation report attested by LW.8-Kunchala Sankar and LW.9-Savanam Chakrapani as mediators. He prepared rough sketch of the scene of offence and got photographed the scene of offence. He conducted inquest over the dead body of the deceased in the presence of panch witnesses and recorded their statements. Later he forwarded the dead body for postmortem examination. LW.11-Civil Assistant Surgeon, Government Hospital, conducted autopsy over the dead body of the deceased and issued P.M. certificate, opining that the cause of the death is due 'shock and haemorrhage due to multiple injuries'. LW.12-the Motor Vehicle Inspector inspected the crime vehicle and issued report stating that the accident occurred was not due to any mechanical defects. On 24.10.2007, at 11.00 a.m., LW.12 arrested the driver in Maddipadu Police Station and sent him for judicial remand after seizing original trip sheet from him. Hence, the charge sheet.
4. The learned Special Judicial Magistrate of First Class, Excise Court, Ongole, took cognizance under Section 304-A of the IPC 4 and after appearance of accused and on compliance of the provisions under Sections 207 of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C.'), examined the accused under Section 251 Cr.P.C., for which accused denied the offence and pleaded not guilty and claimed to be tried.
5. To bring home the guilt against accused, during the course of trial, the prosecution examined PWs.1 to 10, got marked Exs.P1 to P9.
6. After the closure of the evidence of the prosecution, accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing in the evidence let in, for which he denied the incriminating circumstances and stated that a false case is foisted against him. He disclosed that in the early hours at 06.00 a.m., when he was going on his vehicle, the police stopped the same, took him to the police station and obtained signature. He did not let in any defence evidence.
7. The Special Judicial Magistrate of First Class, Excise Court, Ongole, on hearing both sides and after considering the oral as well as documentary evidence on record, found the accused guilty of the offence under Section 304-A of the IPC, convicted him under Section 255(2) of the Cr.P.C. and after questioning him about the quantum of sentence sentenced him to suffer Simple Imprisonment for a period of two years and to pay a fine of 5 Rs.500/-, in default to suffer simple imprisonment for a period of one month. Felt aggrieved of the conviction and sentence under Section 304-A of the IPC, the unsuccessful accused filed criminal appeal No.26 of 2009 before IV Additional District and Sessions Judge, Ongole and the appeal was dismissed on merits, but by modifying the sentence of two years simple imprisonment to six months.
8. Felt aggrieved of the judgment in criminal appeal No.26 of 2009 on the file of the IV Additional District and Sessions Judge, Ongole, the unsuccessful accused filed the present Criminal Revision Case.
9. Now in deciding this criminal appeal, the point that arise for determination is as follows:
"Whether the judgment, dated 28.07.2009 in Criminal Appeal No.26 of 2009 on the file of the IV Additional District Sessions Judge, Ongole is sustainable under law and facts, in terms of legality, regularity or propriety and whether there are any grounds to interfere with the said judgment?
10. Point:
Sri Shaik Meeravali, learned counsel representing Sri Md.Saleem, learned counsel for the petitioner, would contend that PWs.1 to 4 were not witnesses to the occurrence. The trial Court imposed the conviction on the solitary evidence of PW.5, 6 who was a planted witness. He was not a witness to the occurrence. He did not lodge any report with the police. PW.9 turned hostile before the trial Court. Both the Courts below fell in error in maintaining the conviction, as such the present criminal revision case is liable to be allowed.
11. It is to be noted that the criminal law was set in motion on account of the report lodged by accused itself. At this juncture, it is pertinent to look into the report lodged by the accused. It is a scribed report. It runs that accused is the driver of the lorry bearing No. AP 16 TW 1638 since six months. Owner was one Somaiah. On 21.07.2007, he started from Miryalaguda with load of cement and delivered it at Renigunta. He was returning on 22.10.2007. He started at Kalahasthi with a load of batteries, so as to deliver at Deccan factory at Miryalaguda. He was moving along with his cleaner Ashok. On 23.10.2007, at 04.30 a.m., nearer to Maddipaudu near Vellampalli on N.H.5, ahead of the lorry, one person with drum of kerosene was moving on rikshaw. He (accused) got some drowsiness on account of the sleep, as such due to his negligence, hit the person who was moving with kerosene drum and the said person fell on the left side of the tyre and died instantaneously. He came to know that his name is Tirupathaiah. The report under Ex.P1 was lodged on 23.10.2007 at 07.00 a.m. 7
12. Now coming to the evidence adduced by the prosecution, PWs.1 to 4 were not a witnesses to the occurrence. PW.1 was the wife of the deceased. Her husband died about one year ago, while he was going to Doddavaram on his kerosene cart. The person who accompanied her husband came and informed her about the accident through phone, while she was present in the house. Then she went to the spot and found the dead body of her husband. The accident was occurred at 04.30 a.m. Head of her husband was crushed. No crime vehicle was found there. Her daughter noted the number of the crime vehicle. She heard that accident occurred was due to rash and negligent driving of the driver of the offending vehicle.
13. Coming to the evidence of PW.2, the daughter of PW.1. She testified that when she was at her house along with her mother, Srinu informed to her about the accident. Then they rushed to the spot. They found head injuries on the dead body of her father. She also found crime vehicle-lorry. Its number is AP 16 TW 1638. After the accident, the driver of the lorry went to the police station and stopped his lorry. She came to know that the driver of the lorry came to the accident spot and dashed the oil pushcart.
14. Coming to the evidence of PW.3, he was younger brother of the deceased, who claimed that they came to know about the occurrence through LW.5-Srinu. They went to the accident spot 8 and found the dead body. He learnt that it was occurred at 04.00 a.m., due to negligent driving of the driver of the offending vehicle. PW.4 was also a person who came to know about the accident. Admittedly, evidence of PWs. 1 to 4 was a hearsay in nature. They testified the presence of the dead body at the accident spot with injuries. Their evidence only establishes that the deceased died in the road accident.
15. Now turning to the evidence of PW.5, he was the lone witness to the occurrence. He was the person who accompanied the deceased. His evidence is that on 23.10.2007 at 04.00 a.m., he and the Tirupathaiah were going to the Doddavaram to Ongole along with oil tankers. At about 03.00 a.m., they started. When they reached near Maddipadu police station towards Addanki side, he proceeded infront of the deceased Tirupathaiah. By that time, one lorry came from Kalahasthi side, proceeded to Miryalaguda side and dashed the Tirupathaiah who was going on the roadside margin along with oil tanker, without blowing any horn. Due to hit, oil pushcart fell underneath the bumper of the lorry. After the accident, driver of the lorry stopped his vehicle and went Maddipadu police station. He came to accident spot and found the Tirupathaiah dead, due to crush injury on his head. Accident was occurred due to negligent driving of the driver of the lorry. 9
16. PW.6 was the mahazar witness, for the observation of scene of offence by the S.I. of police. Ex.P1 was the mahazarnama and he was also a witness with regard to the inquest conducted over the dead body and Ex.P2-inqeust report.
17. PW.7-S.I. of Police, who testified that on 23.10.2007 at 07.00 a.m., while he was present in the station, one Polagoni Sekhar, the driver of the crime vehicle came to the police station and presented a report and he registered it as a case in Crime No.136 of 2007 under Section 304-A I.P.C. and issued F.I.R. Ex.P3 is the report given by the accused. Ex.P4 is the F.I.R. Later, he took up investigation. He kept the accused in surveillance. He left the police and proceeded scene of offence. He observed the scene of offence in the presence of PW.6 and LW.9 and prepared scene observation report and obtained signatures of mediators on the report. He prepared Ex.P5-rough sketch. He got Ex.P6-three positive photographs at the scene of offence. He examined PWs.1 to 5. He conducted inquest over the dead body of the deceased and he examined the witnesses at the time of inquest. He sent the dead body for postmortem examination. On the next day, he secured the presence of the owner of the offending vehicle and recorded his statement. He verified the crime vehicle records. He arrested the accused as the driver of the crime vehicle and sent 10 him for remand. Later he handed over the file of S.I. of police, Devi Subbaiah.
18. PW.8 was the medical officer who conducted autopsy over the dead body of the deceased and issued postmortem certificate 'cause of death was shock and haemorrhage due to multiple injuries'.
19. PW.9 was the earlier owner of the lorry and according to him, one Venkata Reddy purchased the crime vehicle from him and informed him that the vehicle met with accident. He went to the Madipadu police station and signed a paper. Accused is the driver of the crime vehicle at the time of accident.
20. PW.10-the Motor Vehicle Inspector, deposed that he examined the crime vehicle on 25.10.2007 and opined that the accident occurred was not due to any mechanical defects.
21. This criminal revision case is filed by the accused on the concurrent findings of the learned Special Judicial Magistrate of First Class, Excise Court, Ongole, as well as learned IV Additional District and Sessions Judge, Ongole. The scope of the criminal revision case is limited to see whether the judgment of the learned IV Additional District and Sessions Judge, Ongole, suffer with any illegality, irregularity or impropriety.
22. Firstly, this Court would like to deal with identity aspect of the accused. Though PWs.1 to 4 were not the witnesses to the 11 occurrence. PW.5 was the witness to the occurrence. He categorically testified the manner of the accident and further that he came to know that the accused went to police station and lodged a report. The evidence of PW.7-S.I. of police, reveals that accused went to the police station and lodged Ex.P3-report. According to the evidence of PW.9, he has own lorry bearing No. AP 16 TW 1638. He know the accused. One Venkata Reddy purchased the vehicle from him and informed him that the vehicle met with accident.
23. It is to be noted that even according to the Section 313 Cr.P.C. examination, version of the accused when he was driving the vehicle, in the early hours, the police stopped, took him to the police station ad obtained his signatures. So, he never disputed the fact that he was the driver of the offending vehicle on that particular day. His defence was denial simplicitor.
24. During the course of cross-examination of PW.5-the direct witness to the occurrence, he suggested to him that the police implicated the crime vehicle, so as to enable the kith and kin of the deceased to claim compensation. In the entire cross-examination of PW.5, the accused did not agitate that he was not the driver of the offending vehicle. It is to be noted that before the Courts below, accused raised a contention that Ex.P3 was hit by Indian Evidence Act and it was inadmissible in evidence and it was 12 confession. Both the Courts below, negatived the contention of the accused.
25. It is to be noted that the relevant provisions of Motor Vehicles Act imposes statutory obligation on the incharge of the vehicle which met with accident to report the matter to the police under certain circumstances. Section 134 the Motor Vehicles Act, 1988 ('M.V.Act' for short) runs as follows:
134. Duty of driver in case of accident and injury to a person. - When any person is injured or any property of a third party is damaged, as a result of an accident in which a motor vehicle is involved, the driver of the vehicle or other person in charge of the vehicle shall-
(a)unless it is not practicable to do so on account of mob fury or any other reason beyond his control, take all reasonable steps to secure medical attention for the injured person, [by conveying him to the nearest medical practitioner or hospital, and it shall be the duty of every registered medical practitioner or the doctor on the duty in the hospital immediately to attend to the injured person and render medical aid or treatment without waiting for any procedural formalities], unless the injured person or his guardian, in case he is a minor, desires otherwise;
(b) give on demand by a police officer any information required by him, or, if no police officer is present, report the circumstances of the occurrence, including the circumstances, if any, for not taking reasonable steps to secure medical attention as required under clause (a), at the nearest police station 13 as soon as possible, and in any case within twenty-four hours of the occurrence;.
So, it is a statutory obligation of the driver when he met with accident, to report the matter to the police, as to circumstances in which, he did not take any steps to secure medical aid etc. So, absolutely when Ex.P3 was said to be lodged by the accused to discharge his statutory obligation under Section 134 of the M.V.Act, it cannot be held that it was in admissible in evidence. So, Ex.P3 discloses that the accused was the driver of the offending vehicle.
26. Apart from this, the accused wanted to exculpate himself on the ground that on account of sudden drowsiness due to sleep, he hit the deceased who was moving with oil tanker, but for obvious reasons, during the course of trial, he wanted to get rid of Ex.P3, which is not tenable. By any stretch of imagination, Ex.P3 cannot be considered as a document which is inadmissible in evidence when it was lodged in terms of compliance of Section 134 (a) and
(b) of the M.V.Act and contained exculpatory statement. Absolutely, both the Courts below are justified looking into Ex.P3. The defence of the accused during Section 313 Cr.P.C. as if all of a sudden, the police caught hold his vehicle, took him to the police station and obtained signatures was nothing but evasive, which was not at all probablized. So, the prosecution adduced cogent evidence with regard to the identity aspect.
14
27. Coming to the rash and negligent act alleged against the accused, though a solitary evidence of PW.1 was alone there, but the evidence is fully convincing. It is a case where when the deceased and PW.5 were moving with respective carts with oil tankers, on the margin of the road, the accused hit the cart of the deceased causing instantaneous death. It is quitely evident from the evidence of PW.5, which remained unshaken during the cross- examination. The photographs marked by the prosecution under the cover of Ex.P6, depicts the manner of the accident. It discloses that the lorry went to the left side of the margin of the road and after dashing the deceased, it came to the road. The kerosene oil tanker was found underneath the bumper of the lorry of the accused. The physical features of the scene of offence as found in the photographs goes to prove the fact that the accident occurred was only on account of the rash and negligent driving made by the accused.
28. Turning to the evidence of motor vehicle Inspector, i.e., PW.11, coupled with the report under Ex.P9, the accident occurred was not due to any mechanical defects of the vehicle. The evidence of the medical officer coupled with Ex.P7 reveals that the cause of the death of the deceased was on account of fatal injuries received in the accident.
15
29. In my considered view, the evidence on record, cogently establishes the fact that the accused being the driver of the crime vehicle bearing No. AP 16 TW 1638, drove the same in a rash and negligent manner and hit the deceased from behind, when the deceased was moving on the extreme left side margin of the road. So, it is clear case of Section 304-A I.P.C. Both the Courts below rightly found the revision petitioner guilt of the offence under Section 304-A I.P.C. Apart from this the learned Special Judicial Magistrate of First Class, Excise Court, Ongole imposed sentence of simple imprisonment of two years against the accused. The learned IV Additional District and Sessions Judge, Ongole, who dealt with the appeal, modified the sentence from that of two years to six months, by taking a lenient view. Viewing from any angle, absolutely the judgment of the IV Additional District and Sessions Judge, Ongole, dated 28.07.2009 in criminal appeal No.26 of 2009 is absolutely sustainable under law and facts and there are no grounds what so ever to interfere with same.
30. In the result, the criminal revision case is dismissed confirming the judgment, dated, 28.07.2009 in Criminal Appeal No.26 of 2009 on the file of the learned IV Additional District and Sessions Judge, Ongole.
31. The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the order of this Court to the trial 16 Court on or before 11.03.2024 and on such certificate, the trial Court shall take necessary steps to carry out the sentence imposed against the petitioner/accused and to report compliance to this Court.
32. The Registry is directed to forward copy of the order along with record to the trial Court on or before 11.03.2024.
Consequently, Miscellaneous Applications pending, if any, shall stand closed.
________________________ JUSTICE A.V. RAVINDRA BABU Dt.04.03.2024 Vnb 17 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU CRLRC NO.1273 OF 2009 Date: 04.03.2024 Note:
The Registry is directed to forward copy of the order along with record to the trial Court on or before 11.03.2024. Vnb 18 IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI MONDAY ,THE FOURTH DAY OF MARCH TWO THOUSAND AND TWENTY FOUR PRESENT THE HONOURABLE SRI JUSTICE A V RAVINDRA BABU CRIMINAL REVISION CASE NO: 1273 OF 2009 Between:
1. PALAGONI SEKHAR, S/o. Lakshmaiah R/o. Tatikollu Village, Devarakonda Mandal, Nalgonda District.
...PETITIONER(S) AND
1. THE STATE OF A P, High Court of A.P., Hyderabad.
...RESPONDENT(S)
DATE OF JUDGMENT PRONOUNCED : 04.03.2024
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
1. Whether Reporters of Local Newspapers
may be allowed to see the common judgment? Yes/No
2. Whether the copy of order may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wishes to see
the fair copy of the common judgment? Yes/No
_____________________
A.V.RAVINDRA BABU, J