Andhra Pradesh High Court - Amravati
Polothu Naif Raju Nypu Raju, vs The State Of Ap Rep By Its Pp Hyd., on 21 February, 2024
APHC010621532010
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
WEDNESDAY, THE TWENTY FIRST DAY OF FEBRUARY 3364
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE A V RAVINDRA BABU
CRIMINAL REVISION CASE No: 2120 OF 2010
Between:
POLOTHU NAIF RAJU @ NYPU RAJU. ...PETITIONER(S)
AND
THE STATE OF AP REP BY ITS PP HYD ...RESPONDENT(S)
The Court made the following:
ORDER:
Challenge in this Criminal Revision Case is to the judgment in Criminal Appeal No.73 of 2009, dated 08.11.2010, on the file of the Court of II Additional District and Sessions Judge (Fast Track Court), Srikakulam (for short, 'the learned Additional Sessions Judge') where under the learned Additional Sessions Judge partly allowed the Criminal Appeal, filed by the appellant/accused, set- aside the conviction of the appellant/accused in Calendar Case No.211 of 2005, dated 13.04.2009, on the file of the Court of Judicial Magistrate of First Class, Tekkali (for short, 'the trial Court') for the offence under Section 338 of the Indian Penal Code, 1860 (for short, 'the IPC') and acquitted him under Section 255(1) 2 AVRB,J Crl.R.C. No.2120/2010 of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C') and that the fine amount paid by him for the said offence was treated as fine towards expenses incurred by the prosecution under Section 357 Cr.P.C as a part of sentence under Section 304 IPC while confirming the conviction and sentence imposed against him for the offence under Section 304-A IPC.
2. The parties to this Criminal Revision Case will hereinafter be referred to as arrayed before the trial Court, for the sake of convenience.
3. The present revision petitioner faced trial in the aforesaid C.C. No.211 of 2005 for the offences under Sections 304-A and 338 IPC. The case of the prosecution, in brief, as averred in the charge sheet filed by the Police in Crime No.55 of 2005, for the aforesaid offences, is that on 05.07.2005, while the accused - driver of Lorry bearing registration No.AP 16 TU 0610 (for short, 'the offending vehicle') was proceeding from Chelluru to Bhuvaneswar with a load of sugar on NH-5 road, the deceased Rokalla Satheesh and his uncle Nokku Veeraswamy (LW.1) boarded the said lorry at Narsipuram junction to go to Kanchili and at 12:00 noon, when the said lorry reached near Subhadrapuram village, the accused drove the same in a rash and 3 AVRB,J Crl.R.C. No.2120/2010 negligent manner and dashed the back portion of the stationed lorry bearing registration No.AP 16 Y 4415, which was parked by the left side of NH-5 road. On account of the same, the deceased - Rokalla Satheesh and Nokku Veeraswamy received severe injuries. They were taken to Area Hospital, Tekkali for treatment. Basing on the statement of the deceased, a case in Crime No.55 of 2005 of Nandigam Police Station for the offences under Sections 337 and 338 IPC was registered by LW.16 - Head Constable and it was investigated into. Later, after the deceased succumbed to injuries, Section of law was altered to 304-A IPC after his death. During investigation, Head Constable examined as many as 7 witnesses, recorded their statements, visited the scene of offence and prepared observation report. He later held inquest over the dead body of the deceased. On 07.07.2005, LW.16 - Head Constable arrested the accused and sent him for remand. LW.17 - SI of Police, Nandigam Police Station took up further investigation and completed. Post-mortem examination was conducted over the dead body of the deceased and the deceased appears to have been died of the cardio-respiratory failure due to multiple injuries and hypovolemic shock. LW.15 - Motor Vehicle Inspector, Palasa who inspected the crime vehicle issued accident report opining that the accident was not occurred due to any mechanical defect of the 4 AVRB,J Crl.R.C. No.2120/2010 offending vehicle. The case was numbered as C.C. No.211 of 2005 by the jurisdictional Magistrate and after appearance of the accused he was examined under Section 251 Cr.P.C. with reference to the allegations in the prosecution for which he denied the same. Later, accused was put to trial.
4. On behalf of the prosecution before the concerned Magistrate, PWs.1 to PW.11 were examined and Exs.P-1 to P-16 were marked. After completion of the prosecution side, 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 same.
5. The learned jurisdictional Magistrate after considering the evidence available on record, found the accused guilty of the offences under Sections 304-A and 338 IPC and, after questioning him about the quantum of sentence, sentenced him to suffer Rigorous Imprisonment for six (6) months for the offence under Section 304-A IPC and sentenced him to pay a fine of Rs.1,000/- for the offence under Section 338 IPC in default to suffer Simple Imprisonment for one (1) month.
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6. Felt aggrieved of the aforesaid conviction and sentence, unsuccessful accused therein filed the aforesaid Criminal Appeal before the learned Additional Sessions Judge, which came to be allowed in part, as above. In the Criminal Appeal, the learned Additional Sessions Judge while confirming the conviction and sentence under Section 304-A IPC, set-aside the conviction and sentence under Section 338 IPC.
7. The un-successful appellant/accused felt aggrieved of the aforesaid conviction and sentence under Section 304-A IPC, filed the present Criminal Revision Case.
8. Now, in deciding the present Criminal Revision Case, the point that arises for consideration is whether the judgment in Criminal Appeal No.73 of 2009, dated 08.11.2010, on the file of the Court of II Additional District and Sessions Judge (FTC), Tekkali is sustainable under law and facts and whether there are any grounds to interfere with the same?
POINT:
9. Sri A.S.K.S. Bhargav, learned counsel, representing learned counsel for the revision petitioner, would contend that basing on the solitary evidence of PW.1, who was the injured, and without 6 AVRB,J Crl.R.C. No.2120/2010 there being any proper evidence to prove the rash and negligent act alleged against the petitioner, both the Courts below committed an error in convicting the accused. Except the solitary evidence of PW.1, which was not at all convincing, there was no corroborating evidence. There was no possibility for the accused to drive the vehicle in a rash and negligent manner on account of the curves ahead of the place of accident. Further, the defence of the accused before the trial Court was denial that he was the driver of the offending vehicle. The prosecution did not prove the fact that the accused was the driver or that he drove the offending vehicle in a rash and negligent manner. The entire evidence adduced by the prosecution is missing necessary essential ingredients to constitute the offence under Section 304-A IPC. In support of his contentions, learned counsel would rely upon a decision of Orissa High Court in Badri Prasad Tiwari v. The State1 and an un- reported decision of Karnataka High Court, dated 15.12.2016, in Nagaraju v. State by Tumakuru Rural Police (copy of decision was filed by learned counsel). With the above submissions, he would contend that both the Courts below committed an error in convicting the accused as such the Criminal Revision Case is liable to be allowed.
1 1994 (Crl.L.J) 389 7 AVRB,J Crl.R.C. No.2120/2010
10. Smt. D. Prasanna Lakshmi, learned Special Assistant, representing learned Public Prosecutor, would canvass a contention that PW.1 was no other than the injured and he traveled in the cabin of lorry physically along with the deceased for a considerable period. He identified the accused to prove the fact that accused was the driver of the offending vehicle. The prosecution exhibited Ex.P-16 - trips sheet and further at the time of arrest of the accused, this document was seized along with the driving license. Hence, the prosecution proved the fact that the accused was the driver of the offending vehicle. With regard to the rash and negligent act, prosecution has established that the accused by driving his lorry in a rash and negligent manner hit the stationed lorry, which was parked at the left side of the road. It was not a case of Head on Collision. So, the fact that the accused in a broad day light hit the stationed lorry behind its back clearly establishes that the accused drove the offending vehicle in a rash and negligent manner. Hence, the Criminal Revision Case is liable to be dismissed.
11. It is to be noted that this Criminal Revision Case is filed against a concurrent finding of the learned Judicial Magistrate of First Class, Tekkali and the learned Additional Sessions Judge, 8 AVRB,J Crl.R.C. No.2120/2010 Srikakulam. The finding of facts recorded by both the Courts was that, according to the evidence of PW.1 - injured, accused was the driver of the offending vehicle. As evident from the evidence of PW.1, he categorically supported the case of prosecution. According to him, on 05.07.2005, while they were proceeding from Narsipuram cross road to Kanchili, he and deceased Rokalla Satish boarded into the lorry and they sat beside the lorry driver. When they reached near Subadrapuram village, the lorry in which they were travelling hit a stationed lorry as its driver drove the same in a rash manner. The deceased received head injuries and also fractures to his both legs. He (PW.1) received injury to his urinary bladder and also fracture injury to his left leg. Immediately, they were shifted to Area Hospital, Tekkali. He deposed that he can identify the driver of the offending vehicle and the accused is the driver of the offending vehicle.
12. It is to be noted that the accused had no consistent defence during the course of trial. At one hand his evidence was that he was not the driver of the offending vehicle and at another hand his evidence was that the lorry driver did not drove the offending vehicle with speed. Another contention was that PW.1 did not travel in the aforesaid crime vehicle. The above defence of the 9 AVRB,J Crl.R.C. No.2120/2010 accused was nothing but an evasive. The fact remained is that PW.2 and PW.3 are the persons who received information about the accident. PW.4 also acted as a mediator to the inquest report. PW.5 was also a witness to the inquest report. PW.6 is the Medical Officer, who conducted post-mortem examination over the dead body of deceased and opined that the cause of death was due to cardio respiratory failure secondary due to multiple injury and hypovolemic shock. Ex.P-4 is the post-mortem report. PW.8 is the Motor Vehicle Inspector, Palasa, who inspected the offending vehicle and gave his opinion that the accident was not occurred due to any mechanical defect of the offending vehicle. Ex.P-5 is the MVI Report.
13. The prosecution examined the driver of the stationed lorry, which was parked on the left side of the road at the time of accident. He was examined as PW.9. He testified the fact that 2 years ago, on one day at 12:00 noon he parked his lorry at outskirts of Nandigam and went to take a bath. One lorry which was proceeding from Tekkali towards Calcutta dashed his stationed lorry from its back. He knows that one person, who is a passenger, in the lorry received injuries. Prosecution examined PW.11, who was the Head Constable and in charge of Nandigam 10 AVRB,J Crl.R.C. No.2120/2010 Police Station at the time of incident. He deposed that he examined the witnesses, prepared observation report and got conducted inquest over the dead body of the deceased. He handed over further investigation to PW.10 - SI of Police. PW.10 is the SI of Police, who after verification of the investigation, filed charge sheet in this case.
14. It is to be noted that the prosecution exhibited rough sketch of the scene of offence under the cover of Ex.P-11, which discloses that the stationed lorry was on the extreme side of NH-5 road. There was no denial of the fact that there was sufficient space to the right side of the stationed lorry on NH-5 road so as to overtake from its right side. Apart from this, prosecution exhibited the driving license of the accused, Ex.P-12, C-book of the lorry under Ex.P-13 and further Exs.P-14 and P-15 copy of Insurance and copy of permit. Ex.P-16 was the trips sheet. The evidence of PW.1 coupled with aforesaid documents goes to prove that the accused was the driver of the offending lorry at the time of accident in question.
15. Apart from this, the incident in question was happened in a broad day light. It was not a case where the stationed lorry was in the middle of the road and all of a sudden without noticing the 11 AVRB,J Crl.R.C. No.2120/2010 same the accused caused the accident. So, the facts and circumstances are quite clear that when a lorry was stationed on the extreme left side of the NH-5 road, during broad day light, accused was not supposed to hit the same. All these circumstances clinchingly proves the fact that accused drove his lorry in a rash and negligent manner and hit the stationed lorry from its behind which resulted into death of the deceased and injuries to PW.1.
16. Turning to the decision of Orissa High Court in Badri Prasad Tiwari (1st supra), it was a case where a mini bus hit a person who was returning on a bullock cart. The factual matrix of that case stands on a different footing. Here is a case that PW.1 physically travelled in the cabin of lorry of the accused along with the deceased and he was a direct witness to the occurrence. Apart from this, the decision of the Karnataka High Court in Nagaraju (2nd supra) is also not helpful to the case of prosecution. The above said case arose out of the concurrent findings of the trial Court as well as Additional Sessions Judge and basing on the evidence available on record the Karnataka High Court dismissed the Criminal Revision Case. Both the above referred decisions are not helpful to the case of the petitioner in any way. 12
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17. The evidence of PW.1 discloses that the driver of the offending vehicle drove the vehicle in a rash and negligent manner. Apart from this, the revision petitioner had no business to hit the stationed lorry from its behind in a broad day light, which was parked on the extreme left side of NH-5 road. As pointed out, both the Courts below on proper appreciation of the evidence on record made concurrent findings that the appellant/accused was the driver of the offending vehicle and that he hit the stationed lorry in a rash and negligent manner.
18. The scope of this Criminal Revision Case is limited against the concurrent findings of the Courts below. Appreciation of evidence by both the Courts below was on proper lines with appropriate reasons. By any stretch of imagination, the reasons set forth by the Courts below cannot said to be perverse or illegal.
19. Having regard to the above, this Court does not find any reason, whatsoever, to interfere with the concurrent findings arrived at by the learned Judicial Magistrate of First Class, Tekkali as well as by the learned Additional Sessions Judge, Srikakulam.
20. In the result, the Criminal Revision Case is dismissed. 13
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21. The Registry is directed to take steps immediately under Section 388 Cr.P.C to certify the order of this Court along with the trial Court record, if any, to the trial Court on or before 29.02.2024 and on such certification, the trial Court shall take necessary steps to carry out the remaining sentence imposed against the revision petitioner/accused in C.C. No.211 of 2005, dated 21.06.2007, and as confirmed in Criminal Appeal No.73 of 2009, dated 08.11.2010 and to report compliance to this Court. A copy of this order be placed before the Registrar (Judicial), forthwith, for giving necessary instructions to the concerned Officers in the Registry.
Consequently, Miscellaneous Applications pending, if any, shall stand closed.
________________________________ JUSTICE A.V.RAVINDRA BABU Date: 21.02.2024 DSH