Andhra Pradesh High Court - Amravati
Gadela Anil Reddy, vs The State Of Andhra Pradesh, on 5 December, 2023
THE HON'BLE SRI JUSTICE V.SRINIVAS
CRIMINAL REVISION CASE No.2092 of 2011
ORDER:
Assailing the judgment dated 11.10.2011 in Crl.A.No.67 of 2010 on the file of Court of learned II Additional District & Sessions Judge(FTC), Srikakulam, confirming the conviction against the petitioner/accused for the offence under Section 337 of Indian Penal Code (hereinafter referred to as "IPC") by the judgment dated 02.07.2010 in C.C.No.85 of 2009 on the file of Court of learned Special Judicial Magistrate of First Class (Prohibition & Excise), Srikakulam, but modified and reduced the sentence of imprisonment from six (6) months to three (3) months simple imprisonment, the petitioner/accused filed the present criminal revision case under Section 397 r/w.401 of the Criminal Procedure Code, 1973 (hereinafter referred to as "Cr.P.C.").
2. The revision case was admitted on 17.10.2011 and the sentence of imprisonment was suspended vide orders in Crl.R.C.M.P.No.3129 of 2011.
3. The petitioner was arrayed as accused in Cr.No.58 of 2008 of Laveru Police Station for the offence under Section 338 2 of IPC and police laid the charge sheet and the same was numbered as C.C.No.85 of 2009 on the file of Court of learned Special Judicial Magistrate of First Class (Prohibition & Excise), Srikakulam and after full pledged trial, found the accused guilty for the offence under Section 337 of IPC and sentenced to undergo simple imprisonment for a period of six (6) months.
4. Aggrieved by the said conviction and sentence imposed by the Trial Court, the petitioner/accused filed an appeal, vide Crl.A.No.67 of 2010, before the Court of learned II Additional District & Sessions Judge, Srikakulam and the same was dismissed by confirming the conviction against the petitioner, but modified and reduced the sentence of imprisonment from six (6) months to three (3) months simple imprisonment.
5. Against the said judgment of the first Appellate Court, the present criminal revision case was preferred by the petitioner/accused.
6. Now the point that arises for determination in this revision is "whether there is any illegality or infirmity in the findings recorded by the Trial Court as well first Appellate Court?"
7. Sri P.Nagendra Reddy, learned counsel for the petitioner submits that victim in this case was examined as P.W.3 and 3 according to the prosecution P.W.1 by name Varanasi Sambamurthy gave a report as if he saw the incident and the same was registered by the Sub Inspector of Police, Laveru Police Station vide Cr.No.58 of 2008 under Section 338 of IPC. In fact, neither P.W.1 nor P.W.2/Sunku Neelayya supported the version of prosecution.
8. He further submits that the Court below erroneously convicted the petitioner under Section 337 of IPC and sentenced him to undergo imprisonment for a period of three (3) months and that the judgment of the Court below is not sound in law.
9. As against the same, the learned Assistant Public Prosecutor submits that both the Courts below made concurrent findings with regard to the injuries received by P.W.3, relied upon the evidence P.W.6 and nothing was placed on record to interfere with the concurrent findings of the Courts below.
10. After hearing both sides, as well perusing the material on record, it is true, P.W.3, who is injured, was admitted in Government Hospital, Srikakulam immediately after the incident and thereafter shifted to Seven Hills Hospital, Visakhapatnam for better treatment. P.W.3 categorically deposed that about three years ago at about 06.30 a.m. he 4 started from Tatipudi Village on his Bajaj Platina motor cycle to Srikakulam and at about 09.00 a.m., when he reached near Subhadrapuram Junction near Laveru, a Tipper Lorry came in opposite direction in wrong route dashed against his motor cycle, due to which, he fell down on the road and received injuries on the back side of his head, left chin, left color bone and ribs.
11. The prosecution, no doubt, examined P.W.6, Medical Officer, who treated P.W.3 and he deposed that on 07.05.2008 at about 07.59 p.m., he examined P.W.3 and found the following injuries:
i) Emphysema chest with fracture 1 and 2 ribs on the left side;
ii) Deformity swelling left clavicle with fracture;
iii) Deformity swelling lower jaw with fracture mandible and
iv) Lacerated injury right knee, measuring 3x2x1 cm.
12. He further deposed that the injury Nos.1 to 3 are grievous in nature and injury No.4 is simple in nature and might have been caused in a road accident. While cross examination, he deposed that the said injuries are possible if a person fell down from a motor cycle.
13. Admittedly, in-order to prove the fracture injuries, no Radiologist was examined nor any X-ray reports were placed on 5 record. Might be true, P.W.6 stated that injury Nos.1 to 3 referred to supra are grievous in nature and injury No.4 is simple in nature, but in-order to prove the nature of the injuries, the prosecution has to examine the Radiologist and simple opinion made by the medical officer did not form part of the record rather cannot be called as the said evidence is accepted.
14. In this context, it is relevant to make a note of the judgment of the Hon'ble Supreme Court reported between Maddan Gopal Kakkad v. Naval Dubey1, wherein at paragraph No.34 held as follows:
"A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court, although not an expert, may form its own judgment on those materials after giving due regard to the experts opinion because once the experts opinion is accepted, it is not the opinion of the medical officer but of the Court."
1(1992) 3 SCC 204 6
15. In the present case also, there is no such expert's opinion or data i.e., X-rays, as well the medical officer did not explain the terms of science. So that, the Court cannot arrive at a conclusion that the evidence of medical officer being taken as expert's opinion to form an opinion that the injurie Nos.1 to 3 received by P.W.3 are grievous in nature.
16. However, it is well established in the present case that on 07.05.2008 at about 09.00 a.m., at Subhadrapuram Junction on N.H.5, accused drove the lorry bearing No. AP 35 U 9819 in a rash and negligent manner with high speed in wrong direction and dashed against the motor cycle of P.W.3 and thereby he sustained injuries. So, both the Courts below considered the evidence of P.W.3, P.W.6 and P.W.8 investigating officer and rightly found that P.W.3 received injuries in an accident caused by the petitioner/accused.
17. Basing on the said material placed before the trial Court convicted the petitioner for the offence under Section 337 of IPC and sentenced him to undergo imprisonment for a period of six (6) months, whereas, the first appellate Court confirmed the conviction, but modified and reduced the sentence of imprisonment from six (6) months to three (3) months simple imprisonment as there is no mistake committed by the trial 7 Court and there are no mitigating circumstances found from the judgment of the trial Court in convicting the accused for the offence under Section 337 of IPC and with regard to the quantum of sentence, the first appellate Court made an observation that considering the facts and circumstances, he feel it is just and expedient to reduce the sentence of imprisonment from six (6) months to three (3) months.
18. Now the point is whether the imprisonment of three (3) months imposed against the petitioner under Section 337 of IPC is required to confirm or to be modified.
19. Admittedly, both the Courts below found the nature of injuries sustained by P.W.3 are grievous in nature, though the prosecution failed to prove the same as discussed supra. Thereby, it can be treated as simple in nature.
20. Admittedly, the incident said to be happed on 07.05.2008 and more than fifteen (14) years have been lapsed by now, on perusal of the material placed on record before the trial Court, there is no medical evidence or other evidence similar in nature to prove the nature of the injuries sustained by P.W.3 as discussed supra, the petitioner was aged about 25 years by the date of incident and now he is aged about 40 years. 8
21. Learned counsel for the petitioner also submits that the petitioner is having wife and children depending on him and if he subjected to any imprisonment, the family will be disturbed and stand on the road.
22. For which, this court perused, the punishment prescribed under Section 337 of IPC reads as follows:
"Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both."
23. From the above, the maximum punishment, which can be imposed by the Court under Section 337 of IPC is six (6) months or with fine which may extend to five hundred rupees, or with both. In the present case on hand, the first appellate Court modified and reduced the sentence of imprisonment against the petitioner from six (6) months to three (3) months of simple imprisonment. But, in view of lapse of more than fourteen (14) years, considering the nature of the injuries sustained by P.W.3 and other circumstances regarding family of the petitioner, this Court is of the considered opinion that the fine alone can be imposed against the petitioner under Section 337 of IPC. 9
24. In the result, the Criminal Revision Case is disposed of by confirming the conviction imposed against the petitioner/accused for the offence under section 337 of IPC by the Courts below, however, the sentence imposed by the trial Court as well first appellate Court against the petitioner is hereby modified as fine of Rs.500/- (Rupees Five Hundred only), in default of payment of fine to suffer simple imprisonment of one (1) month. The petitioner/accused is directed to pay the said fine amount before the learned Special Judicial Magistrate of First Class (Prohibition & Excise), Srikakulam within one (1) month from the date of copy of this order made ready.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_______________________ JUSTICE V.SRINIVAS Date: 05.12.2023 Krs 10 96 THE HON'BLE SRI JUSTICE V.SRINIVAS CRIMINAL REVISION CASE No.2092 of 2011 DATE: 05.12.2023 Krs