Andhra Pradesh High Court - Amravati
Bonthu Narasimha Rao vs The State Of A.P. on 31 October, 2022
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THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL REVISION CASE NO.575 OF 2007
ORDER:-
This Criminal Revision Case came to be filed on behalf of the petitioner, who was the accused in C.C.No.423 of 2002, on the file of Additional Judicial Magistrate of First Class, Amalapuram, East Godavari District and appellant in Criminal Appeal No.222 of 2005, on the file of II Additional District & Sessions Judge, Amalapuram, East Godavari District.
2) The Petitioner herein faced the prosecution in C.C.No.423 of 2002, on the allegations of Sections 304-A, 338, 337 of Indian Penal Code ("I.P.C." in short) and Section 3 & 4 of Motor Vehicles Act r/w Section 181 of Motor Vehicles Act ("M.V. Act" in short). He suffered with conviction in C.C.No.423 of 2002, dated 13.12.2005, on the file of Additional Judicial Magistrate of First Class, Amalapuram, against which he filed a Criminal Appeal No.222 of 2005, on the file of II Additional District & Sessions Judge, Amalapuram, where he could not succeed. Challenging the judgment in the Criminal Appeal No.222 of 2005, dated 13.04.2007, he filed the present Criminal Revision Case.
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3) The case of the prosecution in brief pertaining to C.C.No.423 of 2002, on the file of the Additional Judicial Magistrate of First Class, Amalapuram, is as follows:
(i) On 21.08.2002 at 5-00 P.M., the accused driver of Tractor B/No.AP5 B 7242 and Trailor B/No.AP 5U 3487 combination started from Devaguptham Village in view of the marriage of daughter of P.W.9 which was fixed to perform in Venkateswara Swamy Temple at Amalapuram on the night of same day at 8-00 P.M. The P.Ws.1 to 9 and Deceased Nos.1 to 5 i.e., Katta Vijaya Lakshmi, Kudipudi Suryakantham, Namala Venkata Lakshmi, Pithani Sailakshmi, Badugu Dhana Lakshmi, boarded the crime vehicle and the accused failed to take any precautions while taking about 30 persons in the trailor. On the way to Amalapuram when the said Tractor-cum-Trailor reached near to the Rice Mill of Kamanagaruvu village at about 5-45 P.M., the accused drove the said vehicle in a rash and negligent manner, as a result, the left front tyre of the tractor was suddenly burst and the tractor went un-control of the accused and as a result the Tractor-cum-Trailor turned turtle into the left side irrigation canal and on that all passengers who travelled in the said Tractor-cum-Trailor fallen underneath and drowned in 3 the water. P.Ws.1 to 9 as well as Deceased Nos.1 to 5 received injuries on their persons. P.W.11-P.C.1742, Ainavilli Police Station who was coming behind the crime vehicle, witnessed the offence. With the assistance of P.W.10 and some others he rescued the injured persons and sent them to the hospital for treatment by the autos. The accused absconded from the scene of offence after the offence.
(ii) On 21.08.2002 at 7-00 P.M. on the strength of Hospital Intimation and statement given by Deceased No.4, a case in Crime No.56 of 2002 under Section 338, 337 of IPC has been registered and investigated into by the Investigating Officer i.e., P.W.29. During the course of investigation, he examined all the injured persons on 21.08.2002 including P.W.11.
(iii) On 22.08.2002 P.W.29 visited the scene of offence, inspected the same minutely, prepared rough sketch of the same and got photographed the scene of offence in various angles through L.W.33-Private Photographer and he sent a requisition to P.W.25-Motor Vehicle Inspector, Amalapuram to inspect the crime vehicle and to issue necessary accident report. 4
(iv) On 26.08.2002 at 9-30 A.M. on the strength of death intimation of Deceased No.1 from Critical Care Hospital, Amalapuram, P.W.29 re-registered the case altering the section of law from 338 and 337 I.P.C. to 304-A, 338 and 337 I.P.C. and issued F.I.R. to all officers concerned and he conducted inquest over dead body of Deceased No.1 on 26.08.2002 in the presence of P.W.18 and L.W.35-Kudupudi Surya Prakasarao and 36-Bhyrisetty Nageswara Rao. On 27.08.2002 at 7-00 A.M. P.W.29 received death intimation of Deceased Nos.2 and 3 and he conducted inquests over dead body of Deceased Nos.2 and 3 in the presence of P.W.18 and L.W.35- Kudupudi Surya Prakasarao and 36-Bhyrisetty Nageswara Rao. On 28.08.2002 at 9-00 A.M. he received death intimation of Deceased No.4, who is complainant in this case and he conducted inquest over the dead body of Deceased No.4 in the presence of P.W.18 and L.W.35-Kudupudi Surya Prakasarao and 36-Bhyrisetty Nageswara Rao and requisitions were given by P.W.29 to the concerned Medical Officers to conduct postmortem examinations over dead bodies of Deceased Nos.1 to 54 and to issue necessary postmortem certificates.
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(v) On 30.08.2002 at 8-00 P.M. P.W.29 arrested the accused at his house at Devaguptham and sent him to the Court for judicial remand. On 01.09.2002 P.W.27 received a report from P.W.16 stating that Deceased No.5, who travelled in the crime vehicle on 21.08.2002 at the time of offence, received injuries. Later she was discharged from hospital. On 23.08.2002 she was admitted in private hospital and from there also she was discharged and on 26.08.2002 midnight Deceased No.5 was died and the body was buried at Pallamkurru and hence requested action and he gave a requisition to P.W.28-Mandal Executive Magistrate, Katrenikona to exhume the grave of Deceased No.5 and to conduct inquest.
(vi) On 02.09.2002 P.W.28 exhumed the body from the grave through P.W.17 and conducted inquest over Deceased No.5 and P.W.24 conducted postmortem examination at the grave and later the body was again buried in the same grave. P.W.25 who inspected the crime vehicle issued accident report and opined that the accident was due to mechanical defect of the vehicle with sudden deflation of the crime vehicle left tyre due to burst and it is observed that the driver drove the vehicle through the said tyre was in bold condition and thus not 6 exercised reasonable care and diligence. P.Ws.19 to 24 and 26 are the medical officers and they issued wound certificates and postmortem certificates of injured persons and Deceased Nos.1 to 5 respectively.
4) The learned Additional Judicial Magistrate of First Class, Amalapuram, on considering the material on record, taking cognizance under Section 304-A, 338 and 337 of I.P.C. and further Section 3 and 4 r/w 181 of M.V. Act. On appearance of the petitioner in the capacity of the accused before the trial Court and after complying the provisions of Section 207 of Code of Criminal Procedure ("Cr.P.C." for short), he was examined under Section 251 of Cr.P.C. with reference to the allegations in the case of the prosecution, for which he denied the allegations and pleaded not guilty and claimed to be tried.
5) During the course of trial, on behalf of the prosecution P.Ws.1 to 29 were examined and Exs.P.1 to P.47 were marked. The accused was examined before the trial Court under Section 313 Cr.P.C. for which he denied the incriminating circumstances put before him, but he did not enter into any defence by examining any witnesses. But, he relied on Ex.D.1- portion of 161 Cr.P.C. statement of P.W.14.
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6) The learned Additional Judicial Magistrate of First Class, Amalapuram, on hearing both sides and on considering the oral and documentary evidence, found the petitioner guilty of the offence under Section 304-Aof I.P.C. for causing death of five persons and Sections 337 and 338 of I.P.C. for causing injuries to P.Ws.1 to 9 and further Section 3 and 4 r/w 181 of M.V. Act, for driving the vehicle without any driving license and accordingly, convicted him and sentenced him to suffer Rigorous Imprisonment for two years and to pay fine of Rs.1,000/- in default Simple Imprisonment for four months for the offence under Section 304-A I.P.C. and to suffer Simple Imprisonment for six months for the offence under Section 337 of I.P.C. and to suffer Simple Imprisonment for one year for the offence under Section 337 of I.P.C. and to suffer Simple Imprisonment for three months for the offence under Section 3 and 4 of M.V. Act r/w 181 of M.V. Act.
7) Aggrieved by the said conviction and sentence imposed against the accused, the accused filed Criminal Appeal No.222 of 2005 on the file of II Additional District & Sessions Judge, Amalapuram, East Godavari District and the learned II Additional District & Sessions Judge, Amalapuram, by virtue of 8 the judgment, dated 13.04.2007, allowed Criminal Appeal in part only relating to modification of sentence and confirming the appeal in all other aspects. So, the learned Appellate Judge modified the sentence imposed against the accused as that of one year Rigorous Imprisonment for the offence under Section 304-A of I.P.C. and further modified the sentence under Section 338 of I.P.C. as that of Rigorous Imprisonment for six months and further modified the sentence as that of Rigorous Imprisonment for three months for the offence under Section 337 of I.P.C. The conviction and sentence imposed under the provisions of M.V. Act is not disturbed. Aggrieved by the said judgment of the Appellate Court, the unsuccessful accused in Calendar Case, who is an unsuccessful appellant in the Criminal Appeal, filed the present Criminal Revision Case, challenging the judgment of the Appellate Court.
8) Now in deciding this Criminal Revision Case, the point that arises for consideration is whether the judgment, dated 13.04.2007 in Criminal Appeal No.222 of 2005 suffers with any illegality, irregularity and impropriety and as to whether there are any grounds to set aside the judgment in 9 Criminal Appeal No.222 of 2005, on the file of the II Additional District & Sessions Judge, Amalapuram?
Point:-
9) The learned Advocate by name Sri T. Sai Surya, representing the learned counsel for the petitioner by name Sri K. Chidambaram, would advert to the grounds of revision and the substance of the grounds of revision is that both the Courts below did not take care to ensure that identification of the accused is established, as such, conviction of the petitioner is wholly illegal and contrary to the evidence. The Courts below did not see that all the witnesses of the occurrence did not support the case and P.Ws.10 to 19 had no scope to know the driver of the vehicle at the relevant point of time. The Courts below convicted the petitioner basing on conjecturers and surmises and there was no negligence proved because the accident took place due to burst of front tyre. So, the Courts below erred in convicting the appellant, as such, the Revision Case is liable to be allowed.
10) Sri Y. JagadeeswaraRao, the counsel, representing the learned Public Prosecutor, would submit that both the Courts below recorded valid and tenable reasons to negative the 10 contentions of the accused and appellant. There was cogent evidence before the trial Court to show that the accused was the driver of the crime vehicle at the time of offence in question and he driven the same in a rash and negligent manner. There was oral evidence as well as the Dying Declaration of one of the deceased to prove the case against the Revision Petitioner. Both the Courts below considered the evidence in proper perspective and recorded cogent reasons, as such, Revision Case is liable to be dismissed.
11) To appreciate the contention of both parties, I would like to refer here the substance of the case. The case of the prosecution is specific that the accused was the driver of the tractor bearing No.AP 5 B 7242 and he allowed 30 persons in the trailer bearing No.AP 5U 3487 annexure to the tractor from Devaguptham to go to marriage venue in Venkateswara Swamy Temple in Amalapuram on 21.08.2002 and he driven the vehicle in a rash and negligent manner and as such, the left front tyre of the truck suddenly burst, as a result, five passengers died in the accident and P.Ws.1 to 9 received injuries. A Constable i.e., P.W.11, who was followed the tractor, witnessed the occurrence.
This is the sum and substance of the case of the prosecution. 11 So, allegations against the present petitioner before the trial Courts were for causing death of five persons by his rash and negligent act and further for causing simple injuries and grievous injuries to as many as nine persons. There was also an allegation that he had no valid driving license whatsoever at the time of offence in question. So, to succeed in the case alleged against the Revision Petitioner before the trial Court, the prosecution was supposed to prove the fact that the accused was driving the vehicle in question at the time of accident and that he driven the same in a rash and negligent manner and that on account of the rash and negligent act of the Revision Petitioner, Deceased Nos.1 to 5 died and that he had no valid driving licence at the time of offence in question.
12) Admittedly, the prosecution examined as many as 29 persons to prove the guilt against the accused and got marked several exhibits. P.Ws.1 to 9 are the injured persons. P.W.10 hearsay witness. The prosecution projected P.Ws.11, 12, 13, 14, 15 and 16 as direct witnesses to the occurrence. P.W.17 is the Gram Panchayat Assistant of Pallamkurru. Prosecution examined P.Ws.19 to 24 and 26, the medical officers. P.W.25 is Motor Vehicle Inspector. P.W.27 is the Head 12 Constable. P.W.28 is the Mandal Executive Magistrate, who conducted inquest and P.W.29 is the Investigating Officer. The prosecution got marked Exs.P.1 to P.10, the statements of P.Ws.1 to 9 recorded during the investigation because they did not support the case of the prosecution. Exs.P.11 to P.14 are the relevant portion of four inquest reports. Exs.P.15 to P.29 are the wound certificates of injured persons. Exs.P.30 to P.33 and P.36 are the postmortem certificates of the deceased. Ex.P.34 is the analysis report. Ex.P.35 is the certificate issued by the Motor Vehicle Inspector. Ex.P.37 is the report given by P.W.16 to the Sub Inspector of Police. Ex.P.38 is the inquest report pertaining to Badugu Dhana Lakshmi. Ex.P.39 is the hospital intimation. The crucial document that was marked by the prosecution is Ex.P.40, statement given by one of the deceased to the Station House Officer, which was treated as Dying Declaration by the Courts below. Ex.P.41 is the F.I.R. and Ex.P.42 is the rough sketch. Prosecution exhibited Exs.P.43, 45 to 47, the death intimations pertaining to the deceased. Ex.P.44 is the altered F.I.R. The accused got marked Ex.D.1, a portion of statement of P.W.14 by way of contradiction.
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13) In the light of the allegations against the Revision Petitioner before the trial Court and in the light of the findings of the Courts below while deciding the legality, propriety and regularity of the judgment of the Appellate Court, it is within the provisions of this Court to look into as to whether the prosecution before the trial Court is able to establish the fact that the accused was the driver of the offending vehicle at the time of accident and if so, whether he caused death of five persons and injuries simple and grievous to nine persons and whether he driven the vehicle without having any proper driving licence. This thing is to be gone into while deciding the legality and propriety of the judgment of the Appellate Court.
14) Admittedly, it is a case where P.W.1 claimed to be the injured and who travelled in the offending vehicle, did not support the case of the prosecution as regards the identity issue is concerned. So, for the better appreciation, I would like to refer here the evidence of P.Ws.1 to 9.
15) It is the evidence of P.W.1 that about 2 years ago herself and 40 persons were going to Amalapuram from Devaguptham to attend the marriage of her eldest sister's daughter and when they reached red-bridge at Amalapuram the 14 tractor and trailor fell in to the canal there and she lost her conscious and she do not know how the tractor fell into the canal and she regained conscious at Govt. Hospital, Amalapuram. Due to the accident her left leg was broke and she was examined by the police and they recorded her statement.
16) It is the evidence of P.W.2 that about 2 years ago while she along with about 30 persons were coming to Amalapuram from Devaguptam (V) to attend the marriage. By the time the tractor in which they were travelling reached to Kamanagaruvu (V). It fell in the canal and she do not know how the accident took place and she was shifted to the Govt. Hospital, Amalapuram and she sustained injuries on her waist and shoulder and she do not know driver of the said tractor and she was examined by the police and they recorded her statement.
17) It is the evidence of P.W.3 that about two years ago while she along with some persons were coming to Amalapuram from Devaguptham (V) to attend a marriage in a tractor and when they reached to a village, the tractor fell into a canal and subsequently she regained conscious at hospital. Since driver of 15 the said tractor not belongs to their village, she does not know him. In the said accident leg of P.W.1 was broken and police examined and recorded her statement.
18) It is the evidence of P.W.4 that on 21-8-2002 she along with P.Ws.1 to 3 and others nearly 30 persons started from Devaguptham (V) on a tractor to come to Amalapuram for the marriage and at about 6-00 P.M. when they reached Kamanagaruvu (V), the tractor with trailor turned turtle and fell into the river and her right leg was broken and the persons who were travelling in the said tractor sustained injuries and some of persons become unconscious and she was referred to Govt. Hospital, Amalapuram and she regained conscious and some of persons who sustained injuries and fracture were also admitted in the hospital and the tractor was proceeding in speed manner.
19) It is the evidence of P.W.5 that about 3 years ago she along with some 20 or 30 persons were coming to Amalapuram in a tractor from Devaguptham (V) and by the time they travelled some distance as one of the tyres of the tractor burst, the tractor fell into river and she sustained an injury on her chest. They herself and others who sustained injuries were brought to Amalapuram hospital and subsequently they joined in 16 Chiranjeevi Raju's hospital and she does not know the driver of the said tractor and police recorded her statement.
20) It is the evidence of P.W.6 that about 3 years ago she along with 30 persons in order to come to Amalapuram to attend a marriage boarded a tractor in Devaguptham (V) and when they reached nearby red-bridge at Amalapuram tube of tractor was burst so that the tractor with trailor fell into the river by the side of road and they all were drowned into the water and they regained conscious in a hospital, Amalapuram and she sustained injury on the right side buttock and she do not know the driver of the said tractor, so also its number.
21) It is the evidence of P.W.7 that about 3 years ago she along with P.Ws.1 to 5 and others in order to come to Amalapuram to attend the marriage, all boarded the tractor at Devaguptham (V) and when the tractor reached nearby Kamanagaruvu (V) at about 5-30 P.M. one of the tube of the tractor was burst so that the tractor fell into the canal and the persons who travelled in the tractor drowned and some of the persons received inures and she received injuries on her neck and water entered into her ears thereby she suffered ear pain and she do not know driver of the said tractor by then. 17
22) It is the evidence of P.W.8 that about more than 2 years ago she along with some others started from Devguptham (V) to come to Amalapuram by a tractor to attend the marriage and when they reached Kamanagaruvu (V), one tube of the tractor was burst and on that the tractor-cum-trailor fell into the canal situated by the side of road. She sustained simple injuries on her leg and the persons who travelled in the tractor also sustained injuries and they were all shifted to Area Hospital, Amalapuram and she do not know driver of the tractor and since tyre of the tractor was burst, so that the accident took place.
23) It is the evidence of P.W.9 that marriage of his daughter was performed about 3 years ago and on the date of the alleged accident he along with their men were coming on tractor-cum-trailor from Devaguptham (V) and when they reached near Kamanagaruruvu(V), front tyre of the tractor was burst. On that the tractor-cum-trailor fell into the canal which is situated by the side of Kamanagaruvu (V) road and the police joined him and others who sustained injuries in the accident in the hospital and he also sustained injuries on his leg and the said tractor belongs to the accused and one Bonthu Nageswarao arranged the said tractor and he do not know, who was the 18 driver of the said tractor on the date and time of accident. The persons who travelled in the said tractor also sustained some injuries, as one of the tyres of the tractor was burst, so that the accident took place.
24) It is to be noticed that simply because P.Ws.1 to 9 did not identify the accused as that of the driver of the offending vehicle in question, their evidence cannot be disbelieved regarding other aspects. Their evidence is liable to be taken into consideration as regards the injuries spoken by them and further the evidence of P.W.4 that the tractor was proceeding in a speedy manner cannot be disbelieved simply because, he did not identify the driver. So, the prudent course is to look into the other evidence available on record to know what is the evidence that proves the fact that the accused was the driver of the offending vehicle. Keeping in view now, it is prudent to look into the other evidence. P.W.10 is the hearsay witness, who deposed that about three years ago at 5-00 P.M. while he was at his house, he heard some sound, he came out the house and noticed a tractor fell into the canal and noticed some persons who were lifted from the canal. Even he did not testify the name of the accused.
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25) Now coming to the evidence of P.W.11, 12, 13, 14, 15 and 16, it is basing on their evidence that the Courts below gave findings against the Revision Petitioner. Now it is pertinent to look into the evidence. Turning to the testimony of P.W.11, who claimed to be a Police Constable and who followed the offending vehicle on a two wheeler, he deposed that on 21.08.2002 at about 5-00 P.M. he was returning from the house to go to Amalapuram Town Police Station. At 5-45 P.M. he reached nearby Satyanarayana Rice Mill at Kamanagaruvu village. Then he found a front left wheel of the tractor was burst and the driver of the tractor tried to control the vehicle but it proceeded to some extent and as he could not control the same, the tractor-cum-trailor fell into the canal which is situated left side of the road. By then, he was coming on his scooter and on seeing the same, he raised cries. With the help of the persons gathered there, they lifted the trailor and saved 30 persons who were travelling in the trailor. Then, after informing the same to D.S.P., he sent the injured to the hospital by autos and other means. Number of the tractor is 7242. Accused was driving the tractor by then in a speedy manner and he can identify the driver of the said tractor and accused is the driver. 20
26) Turning to the evidence of P.W.12, his evidence is that on 21.08.2002 in order to attend his relatives' marriage, their family members along with P.W.9 started on a tractor to go to Amalapuram. The said tractor did not reach to Amalapuram. Then he (P.W.12) and his relatives proceeded to the red bridge by scooter and noticed that the tractor fell into the canal and some of the persons were shifted to the hospital from the accident place. Then he rushed there. Some of his relatives joined in the Area Hospital, Amalapuram, some of them joined in Care Hospital and some of them were shifted to Kakinada. His daughter Vijayalakshmi sustained injuries and she joined in Care Hospital, Amalapuram and subsequently she died. He came to know from the injured that due to burst of tyre of tractor, and as it was proceeding in a speedy manner, they fell into the canal. Accused is the driver of the tractor. The accused house is situated nearby his house and he was present when the tractor started from Devaguptham and he cannot say the number of the tractor.
27) Turning to the evidence of P.W.13, the marriage of P.W.9's daughter was performed about three years ago at Amalapuram. On the date of accident, his wife and some others 21 started from Devaguptham in a tractor to go to Amalapuram. The tractor belongs to the accused and he was present at the time of starting of the tractor from Devaguptham. Later, one Katta Murali telephoned to him that accident took place on the way to Challapalli. Then he rushed to the scene and noticed the tractor-cum-trailor fell into the canal by the side of the road. He did not enquire as to how the accident took place.
28) Coming to the evidence of P.W.14 on 21.08.2002 his wife in order to attend the marriage of daughter of P.W.9, boarded the tractor at Devaguptham. The said tractor reached Samansa village and then left front wheel of the tractor was burst and it fell into the canal. Accused was the driver of the tractor at the time of accident. Then he along with his friend started on Luna moped and reached the accident spot. By then the tractor crossed them and after proceeding to some extent, accident took place. He along with some others shifted the tractor-cum-trailor and the persons. There may be 40 persons travelling in the tractor. On 27.08.2002 his wife died while undergoing treatment in Care Hospital, Amalapuram. He can identify the accused as driver of the tractor and he was driving the vehicle in a speedy manner.
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29) According to the P.W.15, he and some others boarded a tractor in Devaguptham and it reached Kamanagaruvu village, accident took place. He came to know about the same by Katta Murali Krishna. His wife received injuries. On 28.02.2002 she died. Accused is the driver of the tractor. The accused used to drive the vehicle in a speedy manner, so the accident took place.
30) Coming to the evidence of P.W.16, the marriage of daughter of P.W.9 took place on 21.08.2002. He sent his wife to the marriage on a tractor, but, she did not attend the marriage. The tractor in which she was travelling met with an accident. Then he rushed to the Government Hospital, Amalapuram. His wife informed him that the accident took place as the accused drove the tractor in a speedy manner. While taking treatment in the hospital, she died. He came to know that the accused was the driver of the tractor.
31) As seen from the cross examination part of P.W.11, they remains nothing to disbelieve his evidence. What the accused was able to elicit from his mouth that prior to the accident, he does not know the accused. It is to be noticed that the incident in question happened during brought day light. So, 23 when P.W.11 was following the tractor on his Moped and when he was a Constable and when he rushed to the accident spot on seeing the accident, it is quite natural for P.W.11 to identify the accused. Since, so far as the identity aspect is concerned, this Court could not find any abnormality in the evidence of P.W.11. Similarly, it is a case where P.W.12 categorically testified that he was present when the tractor had started from Devaguptham and by then the accused was the driver of the vehicle. Though, he did not witness the accident in question, but, according to him at the starting point, accused was the driver. It is not the case of the accused or evidence of P.Ws.1 to 9, the injured, that on the transit the driver of the vehicle was changed. So, in so far as the identity of accused by P.W.12 is concerned, the evidence of P.W.12 is found to be reliable in my considered view.
32) Even according to testimony of P.W.13 at the time of starting of the tractor by the accused after 40 persons boarded in the tractor, he was physically present. So, P.W.13 also testified the fact that accused started the tractor with 40 persons to attend the marriage. Turning to the evidence of P.W.14, he is person, who deposed that he along with his friend 24 started on a Lune Moped and the accused crossed them by driving the tractor-cum-trailor and after passing some distance, the tractor met with accident. So, the evidence of P.W.14 also categorically present consistent version as regards the fact that the accused was the driver of the vehicle in question when it was started. Though, Ex.D.1 negatived that he was a direct witness to the accident in question, but Ex.D.1 did not negative the fact that he witnessed when the accused started the tractor as a driver in the village.
33) Admittedly, the evidence of P.W.15 is hearsay in nature. Similar is the case in respect of the evidence of P.W.16. On analyzing the evidence of P.Ws.11 to 14, this Court has no reason to disbelieve their testimony. Apart from this, one cannot deny the fact that Ex.P.40 is the statement given by Pithani Sai Lakshmi, who was also one of the deceased and her statement was recorded by the Station House Officer, Amalapuram Taluk Police Station on 21.08.2002. So after giving her statement she died. According to Ex.P.40, it is the statement given by Pithani Sai Lakshmi narrating the fact that to attend a marriage they engaged a tractor and the accused was the driver of the tractor. Both the Courts below treated 25 Ex.P.40 as that of a Dying Declaration. In my considered view, both the Courts below rightly relied upon Ex.P.40 treating it as a Dying Declaration, which reveals the name of the Revision Petitioner as a driver of the tractor. So, in so far as the identity of the accused as that of the driver of the offending vehicle at the time of accident is concerned, there was cogent evidence available on record, though P.Ws.1 to 9 did not speak about the identity of the accused. The Courts below, in my considered view, rightly relied upon the evidence of P.Ws.11 to 14 and Ex.P.40 Dying Declaration in this regard.
34) So, in my considered view, the prosecution was able to establish and prove the fact that the accused was driving the offending vehicle at the time of accident.
35) Now coming to the rash and negligent act alleged against the Revision Petitioner though P.W.4 did not speak about the identity aspect of the accused, categorically deposed during the course of chief examination itself that the tractor was proceeding in a speedy manner at the time of accident. In this regard, no contraversion was suggested to P.W.4. Turning to the evidence of P.W.11, he testified that accused was driving the tractor by the time of accident in a speedy manner. Nothing is 26 elicited during the course of cross examination of P.W.11 also in this regard to disbelieve his testimony. Apart from this, there is evidence of P.W.15 as regards the earlier instances that the accused has no sufficient experience in driving the tractor and more over he used to drive the tractor in a speedy manner. Leave a part the evidence of P.W.15 in this regard which can be taken as hearsay in nature, there is evidence of P.W.25 the Motor Vehicle Inspector to the effect that having received the requisition from the Sub Inspector of Police, he inspected the crime vehicle i.e., tractor B/No.AP 5B 7242 and trailor B/No.AP 5U 3487 on 24.08.2002. He found the breaking system intact and the accident was not due to mechanical defect of the vehicle. Due to sudden depletion of the tractor, as front left tyre was burst, it is observed that the driver drove the vehicle, though the said tyre was in boiled condition and the driver did not exercise reasonable and diligent care. By virtue of evidence of P.W.25, it is crystal clear that the front left tyre of the vehicle in question was in boiled condition, but in spite of the same, accused driven the vehicle in a speedy manner.
36) Apart from this, it is borne out from the evidence available that accused driven the vehicle without having any 27 valid driving licence. Either during the cross examination of the prosecution witnesses or during the course of Section 313 Cr.P.C. examination, accused had no substantial defence at all. He has no defend to say as to whether he was not driver of the offending vehicle at the time of accident. His defence appears to be evasive. He was simply denying the case of the prosecution. It is a case that P.W.11 who had no motive at all to depose false against the accused, testified the fact that the accused was driving the vehicle in a speedy manner. Apart from this, there is evidence of P.W.4 that the vehicle was being driven in a speedy manner. So, the facts and circumstances are such that the accused having got knowledge that the front left tyre of the vehicle was in boiled condition, did not exercise proper precautions and driven the vehicle in a speedy manner. So, the evidence on record, in my considered view, categorically proves that the accused driven the vehicle in a rash and negligent manner thereby the accident in question was occurred. Accused was not supposed to drive the vehicle in a speedy manner when the tyre was in boiled condition. Even the accused was not supposed to start the vehicle and he was not supposed to put the vehicle on record, as the tyre of the vehicle was in boiled 28 condition, which may burst at any time, if the vehicle was put in use on the road. The facts and circumstances are such that the accused was not able to control the vehicle and the tractor fell into the canal on the left side. So, when the accused had every knowledge that the tyre of the vehicle was in boiled condition, he was not supposed to drive the vehicle in a speedy manner. Had he driven the vehicle in a reasonable speed looking into the condition of the tyre, he would have controlled the vehicle when the tyre was burst. Even according to evidence of P.W.25, the Motor Vehicle Inspector, the breaking system was in good condition and they were found intact. So virtually, the accident was occurred as the left front tyre of the vehicle was burst. The over act of the accused in driving the vehicle when the front left tyre was in boiled condition itself is a negligent act in my considered view. So, there was every possibility for the accused to control the vehicle, if he was driving the vehicle in a normal speed having got knowledge that the tyre was in boiled condition. Apart from this, the very act of the accused to step into the driver seat to drive the tractor, though by then he had no valid driving licence, itself is a negligent act. As the accused did not possess any valid driving licence, he had every 29 knowledge that he will not be able to drive the vehicle in the manner expected from a skilled driver, who has driving licence, as such, this itself is sufficient to say that accused did rash and negligent act.
37) Having regard to the above, I am of the considered view, that the evidence on record before the trial Court is sufficient to say that the accused driven the vehicle in a rash and negligent manner and caused the accident in question.
38) Needless to point out here that there is voluminous evidence on record to prove the simple or grievous injuries, as the case may be, received by P.Ws.1 to 9. In this regard, the prosecution examined several witnesses. P.W.19 is examined by the prosecution to prove the injuries on P.W.1 and P.W.2. According to him, Ex.P.15 is the wound certificate of P.W.1 and Ex.P.16 is the wound certificate of P.W.2. He also examined L.W.6 and issued Ex.P.17. He also examined Bonthu Babu and issued Ex.P.18. He also examined P.W.3 and issued Ex.P.19. He examined P.W.4 and issued Ex.P.12 and L.W.4-Guvvala Seethalakhsmi and issued Ex.p.21.
39) P.W.20 deposed about the examination of L.W.6- Bokka Surya Ratnam and his issuance of Ex.P.22 wound 30 certificate. He further spoken the fact that he examined P.Ws.5, 6, Dommeti Satya Gayathri Devi, L.W.11-Bonthu Mangayyamma, L.W.19-Demmeti Chandra Sekhar, Bonthu Baby Kumari and Katta Nagar Durga. He further spoken about the issuance of Exs.P.23 to 29 wound certificates. P.W.20 conducted postmortem on the dead body of deceased No.1 and issued Ex.P.30 postmortem report. P.W.22 conducted postmortem over the dead body of deceased No.2 and issued Ex.P.31 postmortem report. P.W.23 conducted postmortem over the dead body of deceased No.3 and issued Ex.P.32 postmortem report. P.W.24 conducted autopsy over the dead body of deceased No.5 and issued Ex.P.33 postmortem report. P.W.26 conducted postmortem over the dead body of deceased No.4 and issued Ex.P.36 postmortem report. P.W.18 is the Mandal Executive Magistrate, who conducted inquest regarding the death of four and he also conducted inquest on the dead body of the first deceased. P.W.28 is the person, who conducted inquest over the dead body of the deceased No.5.
40) So, by virtue of the evidence of P.Ws.19 to 24 and P.W.26 and the wound certificates under Exs.P.15 to 29 and postmortem reports, the prosecution proved that the death of 31 five deceased were on account of the fatal injuries received in the accident, which was caused by the accused. So, there was a direct connection between the accident and the cause of death of deceased Nos.1 to 5. So, in my considered view, the prosecution was successful in proving the fact that on account of the rash and negligent act of the accused, there were deaths of five persons i.e., deceased Nos.1 to 5 and there were simple or grievous injuries, as the case may be, to P.Ws.1 to 9.
41) Further the accused had no say that he driven the vehicle with a valid driving license. His defence was evasive and he was not certain about his defence. So, in my considered view, the prosecution before the trial Court was successful in establishing the guilt of the accused under Section 304-A, 338 and 337 of IPC and further Section 3 and 4 r/w 181 of M.V. Act is beyond reasonable doubt. The learned II additional District & Sessions Judge, Amalapuram, rightly appreciated the contentions canvassed by the appellant as against the judgment of the trial Court. The contention of the Revision Petitioner that there was no identity established by the prosecution is devoid of merits. His contention that there was no possibility for the witnesses, who supported the case, to know the driver of the 32 tractor is without any basis. There was cogent evidence on record to prove that the accused was the driver of the offending vehicle and he driven the same in a rash and negligent manner.
42) According to the ground No.4 of the Revision, the negligence on the part of the driver was not proved because accident took place due to burst of the front tyre, it means that accused admitted that he was the driver of the offending vehicle. If somebody was driving the vehicle other than the accused and accused was brought into picture, the Revision Petitioner should have been in a position to ventilate such defence before the trial Court. So, at one hand the accused contended that his identity was not there. At another hand he contended that the accident was happened as the front tyre was burst. Both the said contentions were not found favour by the Courts below on analyzation of the evidence in a proper way.
43) Having regard to the above, virtually there are no merits in grounds of revision and in my considered view, the judgment of the learned II Additional District & Sessions Judge, Amalapuram, West Godavari District, dated 13.04.2007, does not suffer with any irregularity, impropriety and illegality. In my considered view, he rightly looked into the case of the 33 prosecution and the defence of the accused before the trial Court and he dismissed the appeal with valid reasons, confirming the judgment of the trial Court. However, he took into consideration some lenient view and modified the sentence imposed against the appellant. Having regard to the above, I am of the considered view that the Revision Case must fail.
44) In the result, the Criminal Revision Case is dismissed.
45) The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the judgment of this Court to the trial Court and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against the petitioner/appellant in C.C. No.423 of 2022, dated 13.12.2005 and to report compliance to this Court.
Consequently, miscellaneous applications pending, if any, shall stand closed.
________________________ JUSTICE A.V. RAVINDRA BABU Dt.31.10.2022.
PGR 34 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU CRIMINAL REVISION CASE NO.575 OF 2007 Date: 31.10.2022 PGR