Andhra Pradesh High Court - Amravati
M. Basheer, vs The State Of Ap Rep By Its Pp Hyd., on 21 February, 2023
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CRIMINAL REVISION CASE No.1303 of 2008
ORDER:
A convict/accused presented this criminal revision case under Sections 397 and 401 Cr.P.C. questioning the correctness of judgments of two Courts below.
2. An automobile accident occurred on 03.07.2002 resulted in death of one person and injuries to eight persons. The vehicle involved was an auto rickshaw bearing No.AP-02-U- 3142. The incident occurred during broad day light at 9:30 A.M. at a place that was about 5 K.Ms. away from Rayadurg. At the relevant point this revision petitioner was stated to be driving the said auto rickshaw with 15 passengers in it. One of the injured/PW.3, who was shifted to Government Hospital, Rayadurg, gave his statement to police as per Ex.P.11 and Rayadurg Police acting upon it registered Crime No.46 of 2002 and investigated into the case and found the auto driver/ revision petitioner was responsible for the crime incident and laid charge sheet before the learned Judicial Magistrate of First Class, Rayadurg, who thereupon took cognizance for the offences under Sections 337, 338 and 304 I.P.C. and Section 187 of the Motor Vehicles Act. While the crime incident 2 Dr. VRKS, J Crl.R.C.No.1303 of 2008 occurred on 03.07.2002 the accused was arrested on 01.10.2002. Trial Court summoned him and he duly appeared and he was defended by his own learned counsel when he was furnished with copies of documents in terms of Section 207 Cr.P.C. Crime alleged allegations were put to him under Section 251 Cr.P.C. and the accused denied the truth of the allegations and pleaded not guilty. That made the prosecution to introduce the evidence in the form of PWs.1 to 12 and Exs.P.1 to P.14. Witnesses were duly cross-examined in defence of the accused. The learned Magistrate having found incriminating material, he confronted the same to the accused and sought for his explanations as required under Section 313 Cr.P.C. The accused responded by mere denial stating that the evidence led against him was false. When he was informed of his right to have any evidence in his defence, he reported no such evidence.
3. On considering the material on record in that case in C.C.No.315 of 2002 and after hearing arguments, the learned trial Court stated that the evidence of eye witnesses was consistent and that evidence established the identity of the accused as the one who drove the auto rickshaw at the relevant time and the learned Magistrate also found that at the material 3 Dr. VRKS, J Crl.R.C.No.1303 of 2008 point of time accused was driving the auto rickshaw at high speed and the accused found a jeep coming in opposite direction was also coming at high speed and it was near a culvert that the accused noticed the opposite coming vehicle and it was at that stage he swerved his vehicle towards right side in such a manner that it turned turtle and fell into a ditch resulting the death of one and injuries to eight others. He found that the inquest report, post-mortem report and wound certificates issued by the doctor and the evidence of the doctor/PW.5 added strength to the oral evidence and found the accused guilty and convicted him and sentenced him by a judgment dated 14.09.2006 as mentioned below:
Section Imprisonment Fine Default
Sentence
304-A I.P.C. Rigorous Rs.1,000/- 3 months
Imprisonment
for one year
338 I.P.C. Rigorous Rs.500/- 3 months
Imprisonment
for one year
337 I.P.C. Rigorous Rs.300/- 2 months
Imprisonment
for six months
187 of the Motor - Rs.100/- -
Vehicles Act
4
Dr. VRKS, J
Crl.R.C.No.1303 of 2008
4. Aggrieved of his conviction and sentence, the accused made an appeal to the learned Sessions Judge, Anantapur in Criminal Appeal No.71 of 2006. The learned Sessions Judge having considered the arguments advanced on both sides and having considered the entire evidence and the judgment impugned before him found that on all the material aspects the decision taken by the trial Court was correct and the approach of the trial Court was in accordance with law and it found no merits in the contentions raised by the appellant before him and accordingly by a judgment dated 27.08.2008 it dismissed the appeal and confirmed the judgment of the trial Court so far as guilt and conviction of the accused is concerned. However, on the question of various sentences prescribed, the learned Sessions Judge thought of modifying them by way of reduction and did it accordingly as mentioned below:
Section Imprisonment Fine Default Sentence 304-A I.P.C. Rigorous Rs.1,000/- 3 months Imprisonment for six months 338 I.P.C. Rigorous Rs.500/- 3 months Imprisonment for six months 337 I.P.C. Rigorous Rs.300/- 2 months Imprisonment for three months 187 of the Motor - Rs.100/- -
Vehicles Act 5 Dr. VRKS, J Crl.R.C.No.1303 of 2008
5. It is against those judgments this revision is filed stating that the evidence on record was improperly appreciated by Courts below and in fact the investigation was defective as the police failed to investigate whether it was the fault of this accused or it was the fault of the opposite coming jeep driver that caused this crime accident. That this accused with a view to avoid collision with the opposite vehicle swerved his vehicle to the left side of the vehicle, where there was a ditch into which the auto went unfortunately and because of this unexpected event the auto turned turtle and in such circumstances, it could not be said that the accused was either rash or negligent in driving the vehicle. It is further contended that the Courts below without recording any specific finding as to which of the victims suffered simple injuries and which of the victims suffered grievous injurious simply went on to convict the accused for the offences under Sections 338 and 337 I.P.C. and that is illegal and irregular. Learned counsel appearing for the revision petitioner argued that some of the witnesses deposed that there was no rash or negligent act on part of the accused, but the Courts below did not appreciate that evidence. It is for 6 Dr. VRKS, J Crl.R.C.No.1303 of 2008 these reasons, the revision petitioner seeks to upset the impugned judgments and acquit him of the case.
6. The learned Special Assistant Public Prosecutor appearing for the respondent-State submit that after exhaustive investigation and due trial, both the Courts below appropriately considered the facts and concluded the case against this revision petitioner and the judgments impugned do not suffer from any illegality or irregularity or impropriety and therefore, sitting in revision there is no warrant for this Court to interfere with the guilt, conviction and sentence of the revision petitioner.
7. On considering the arguments of learned counsel on both sides, the points that fall for consideration are:
1. Was there mis-appreciation of evidence resulting in conclusions that cannot be sustained? and
2. Whether the impugned judgments are illegal or irregular in prescribing the sentence without requisite findings recorded?
8. Points:
The fact that this revision petitioner drove the auto rickshaw bearing No.AP-02-U-3142 at 9:30 A.M. along with 15 passengers in the auto rickshaw and that the auto rickshaw fell 7 Dr. VRKS, J Crl.R.C.No.1303 of 2008 into a ditch resulting in death of one person by name Sri K.Ramalinga Prasad and injuries to several others are some of the facts that were established by evidence and requisite findings were recorded by both the Courts below as against which no challenge is raised in this revision, is a matter of fact on record.
9. Causing death by doing an act with the intention of causing death is 'culpable homicide'. However, causing death by doing any rash or negligent act not amounting to 'culpable homicide' is made an offence under Section 304-A I.P.C. Causing grievous hurt to any person by doing any act so rashly or negligently as to endanger to human life or the personal safety of others is made an offence under Section 338 I.P.C. and causing hurt to any person by doing any act as to endanger to human life or the personal safety of others, it is made an offence punishable under Section 337 I.P.C. It is in the context of these legal mandates, the conduct attributed to the revision petitioner has to be seen. The sequence of events that emerged at the trial are to the effect that with 15 passengers on board this revision petitioner was driving his auto rickshaw at high speed and it was going on the road and this revision petitioner noticed a jeep 8 Dr. VRKS, J Crl.R.C.No.1303 of 2008 coming in the opposite direction and his auto rickshaw was reaching near a culvert where the road is a little narrower. The version of the witnesses was that both the auto rickshaw as well as the opposite coming jeep were moving in such uncontrollable manner because of their speed and the revision petitioner drove his auto rickshaw towards right side and the auto turned turtle and fell into a ditch. It is this aspect of the matter that was consistently spoken to by all the witnesses excepting one. All the material witnesses were passengers in the vehicle. They testified as PWs.3, 4, 5, 9 and 11. The above act of the accused was also stated to be rash or negligent by the witnesses. However, PW.11 stated that there was no such rashness or negligence on part of the revision petitioner.
10. Witnesses to facts are to depose facts. The effect of those facts, in terms of law, is a matter for argument by a counsel and is a matter for decision for a Court. Without deposing a fact if a witness says the accused drove the vehicle rashly or negligently that is no evidence at all since those two terms by themselves do not indicate any facts enabling a Court of law to adjudge the criminality of the acts involved in the facts. That many witnesses spoke that this revision petitioner was rash or 9 Dr. VRKS, J Crl.R.C.No.1303 of 2008 negligent and one witness positively said that this revision petitioner was not rash or not negligent are judgments of the witnesses which have no bearing. A perusal of the judgments of the Courts below do indicate that PW.11 as well as the other witnesses deposed facts in the same manner. It was on such evidence the Courts below concluded that this revision petitioner was negligent. It is undisputed that the revision petitioner is a professional auto rickshaw driver. Thus, being a professional he has a special skill of driving. Such professional driver is expected to show the skill of any reasonably competent member of his profession. Being an auto rickshaw driver carrying so many passengers beyond the prescribed limit, it was his duty to see the safety of his passengers. If he was careless amounting to culpable breach of his duty, in other words failure to do something that a reasonable person would do or doing something that a reasonable person would not do would be considered as negligence in criminal law. It is in the light of that legal requirement now this Court has to see that the facts established through the evidence fall within the scope of this legal norm or not. The evidence on record is to the effect that with such heavy load of passengers, this revision petitioner was driving the auto rickshaw at such a speed and he noticed a 10 Dr. VRKS, J Crl.R.C.No.1303 of 2008 culvert where the road narrows down. When the culvert was on a regularly plied road of this revision petitioner, he must have that normal sense of driving making him to reduce the speed of his vehicle so as to control it and safely drive through the road. Added to that he noticed another speeding jeep in his opposite direction. On a narrow road near a culvert while another vehicle was coming at in such menacing speed any prudent driver would have applied brakes and slowed down the vehicle and took it to the side of the road so that the travel could be safely covered. It is not the evidence of witnesses nor was it the defence of the accused that this revision petitioner ever applied breaks in such circumstances. Why he did not apply brakes was within his exclusive knowledge and he was expected to say to the Court, but he/revision petitioner kept his silence without divulging any facts to the Courts. That indicates that he was not prepared to apply breaks, let what may come. Instead of applying breaks what he did was he swerved the vehicle to the right side of the road. Be it noted that the evidence on record indicate such facts but in the memorandum of grounds of this revision it is incorrectly mentioned as left side of the road. Be that as it may. Instead of applying breaks he swerved to the right side and since it is a place nearer the culvert, the place 11 Dr. VRKS, J Crl.R.C.No.1303 of 2008 would not be as flat as a road and existence of a slope or ditch is a normal phenomenon. Being a professional driver it is all within the normal grasp of a reasonable prudent driver. Instead of looking after the safety of his passengers and safety of himself, the revision petitioner was prepared to drive further and swerve it on one side and in the process he encountered a ditch which he could not negotiate and the whole auto rickshaw along with multitude of passengers fell down leading to death of one and injuries to others. This conduct of the accused purely falls within the parameters of Section 304-A I.P.C. and the Courts below rightly recognized it. The contention of the learned counsel for revision petitioner that there was lapse in the investigation as it failed to consider the rash and negligent driving of the opposite coming jeep driver is of little consequence since it is not that jeep driver's conduct that is at trial. It is not a case where the auto rickshaw collided with that jeep. Therefore, both the Courts below did not find any merit in his contention and his repeated contention here has no merit for the reasons that are mentioned earlier. In these circumstances, this Court finds that the judgments of the Courts below, when they found that this revision petitioner was guilty for the offence 12 Dr. VRKS, J Crl.R.C.No.1303 of 2008 under Section 304-A I.P.C. is perfectly in accordance with facts and law and the same is approved here.
11. Having gone through the judgment of the learned trial Court as well as that of the learned first appellate Court, a few aspects are to be stated here.
12. The learned trial Court recorded the evidence of injured witnesses and recorded the evidence of the doctor who treated them and considered the wound certificates in Exs.P.1 to P.7. Throughout its judgment it did not make a mention as to which of these injured suffered grievous hurt attracting Section 338 I.P.C. and which of the injured suffered simple hurt attracting Section 337 I.P.C. Without rendering any finding it simply went on to convict the accused under both the provisions of law. This lapse was specifically contended before the learned first appellate Court. It is unfortunate that the learned first appellate Court/Sessions Judge having noted down such contentions did not feel to bestow any attention on that aspect. He neither recorded a clear finding of fact attracting each of those two provisions nor stated anything. Except mentioning the contention of the accused nothing was done. It is in the context of these facts, the contention of the revision petitioner 13 Dr. VRKS, J Crl.R.C.No.1303 of 2008 that it is illegal and irregular to convict the revision petitioner under both the provisions of law, I find merit in it. Since the evidence on record established hurt to eight individuals and since there is no specific finding on record indicating which of the injuries of which of these injured was grievous in nature, this Court shall find the revision petitioner not guilty for the offence under Section 338 I.P.C. and to that extent the judgments of both the Courts below shall be set aside. Since the evidence indicated hurt to the injured, which was supported by medical evidence, the same shall be considered as simple hurt and in that view of the matter, the finding of guilt conviction and sentence rendered by the Courts below for the offence under Section 337 I.P.C. shall be confirmed. Thus, both the points are answered accordingly.
13. In the result, this Criminal Revision Case is allowed in part confirming the judgment dated 27.08.2008 of learned Sessions Judge, Anantapur in Criminal Appeal No.71 of 2006 so far as the offences under Sections 304-A and 337 I.P.C. are concerned. The revision petitioner/accused is acquitted for the offence under Section 338 I.P.C. and to that extent the judgment of the first appellate Court shall be set aside and fine 14 Dr. VRKS, J Crl.R.C.No.1303 of 2008 of Rs.500/- shall be refunded to the revision petitioner/accused by the learned trial Court on a duly made application by the revision petitioner.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 21.02.2023 Ivd 15 Dr. VRKS, J Crl.R.C.No.1303 of 2008 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR CRIMINAL REVISION CASE No.1303 of 2008 Date: 21.02.2023 Ivd 16 Dr. VRKS, J Crl.R.C.No.1303 of 2008