Andhra Pradesh High Court - Amravati
Dukkipati Srinivas Rao, East Godavari ... vs State Of A.P., Rep. By Public Prosecutor on 26 February, 2024
APHC010475122011
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
(Special Original Jurisdiction)
[ 3367 ]
MONDAY ,THE TWENTY SIXTH DAY OF FEBRUARY
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE V SRINIVAS
CRIMINAL REVISION CASE NO: 2435 OF 2011
Between:
1. DUKKIPATI SRINIVAS RAO, EAST GODAVARI DISTRICT, S/o. Balayogi R/o.
Krapa Village, Ainavilli Mandal, E.G.District.
...PETITIONER(S)
AND
1. STATE OF A P REP BY PUBLIC PROSECUTOR, Rept. by the Public
Prosecutor,
...RESPONDENTS
Revision filed under Section 397/401 of CrPC praying that in the circumstances stated in the affidavit filed in support of the CriminalRevisionCase, the High Court may be pleased toto present this memorandum of criminal revision case against the judgment dated 08-12-2011 in Crl.Appeal No. 161 of 2010 on the file of the Court of the II Additional Sessions Judge, East Godavari at Amalapuram, in confirming the judgment and substantial sentence dated 30-04-2010 in C.C.No. 550 of 2006 on the file of the Additional Judicial First Class Magistrate, Amalapuram.
I.A. NO: 1 OF 2011(CRLRCMP. NO: 3682 OF 2011) Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to release the petitioner on bail by suspending the sentence in Crl.Appeal No. 161 of 2010 dated 08-12-2010 on the file of the Court of the II Additional Sessions Judge, East Godavari District, pending disposal of the Crl.Rc. before this Hon'ble Court. Counsel for the Petitioner(s):SRI. G RAMA GOPAL Counsel for the Respondents: PUBLIC PROSECUTOR (AP) The Court made the following:
Assailing the judgment dated 08.12.2011 in Crl.A.No.161 of 2010 on the file of the Court of learned II Additional Sessions Judge, East Godavari at Amalapuram, confirming the conviction and sentence passed against the accused by the judgment dated 13.04.2010 in C.C.No.550 of 2006 on the file of the Court of learned Additional Judicial Magistrate of First Class, Amalapuram, for the offences under section 304-A, 337 and 338 of Indian Penal Code (hereinafter referred to as "IPC"), the petitioner/accused filed the present criminal revision case under Section 397 r/w.401 of the Criminal Procedure Code, 1973.
2. The revision case was admitted on 09.12.2011 and the sentence of imprisonment imposed against the petitioner was suspended, vide orders in Crl.R.C.M.P.No.3682 of 2011.
3. The shorn of necessary facts are that:
i). On 14.09.2006 one Sathala Verriyya (hereinafter referred to as "deceased") went to amalapuram to see his son P.W.5-Sathala Nageswra Rao and after sometime, both of them proceeded to their village and engaged an auto bearing No.AP 20 7913 at Clock Tower Center, Amalapuram and proceeded to Mummidivaram. Accused, who is driver of the said auto, drove the same in a rash and negligent manner and when they reached near Joduthumulu of Bhatvavilli village, accused tried to overtake another auto and dashed a motor cycle bearing No.AP 5G 7970 in opposite direction, on that P.Ws.1 and 2, who were travelling on the said motor cycle, fell on the ground and sustained injuries. The auto also turned turtle and the inmates in the auto also sustained severe injuries. Later, deceased succumbed to injuries while undergoing treatment.
ii). Basing on the statement of P.W.1 recorded by Head Constable of Amalapuram Taluka P.S., registered a case in Cr.No.93 of 2006 under Sections 304-A, 337 and 338 of IPC and investigated into.
4. After completion of investigation, P.W.13-S.I of Police laid charge sheet and the same was numbered as C.C.No.550 of 2006 on the file of the Court of learned Additional Judicial Magistrate of First Class, Amalapuram and trial was conducted and found the accused guilty of the offences under Section 304-A, 337 and 338 of IPC and sentenced to undergo simple imprisonment for a period of six (6) months and to pay fine of Rs.1,000/-, in default to suffer simple imprisonment for one (1) months, for the said offences.
5. Aggrieved by the same, the petitioner preferred an appeal, vide Crl.A.No.161 of 2010, before the Court of learned II Additional Sessions Judge, East Godavari at Rajahmundry and the same was dismissed, vide judgment dated 08.12.2011, by confirming the judgment of the trial Court.
6. Against the said judgment of the first Appellate Court, the present criminal revision case was preferred by the petitioner/accused.
7. Heard Sri G.Ram Gopal, learned counsel for the petitioner and Sri S.Dheera Kanishk, learned Special Assistant Public Prosecutor for the respondent-State.
8. Now the point that arises for determination in this revision is "whether there is any manifest error of law or flagrant miscarriage of justice in the findings recorded by the Trial Court as well first Appellate Court?"
9. Sri G.Ram Gopal, learned counsel for the petitioner submits that both the Courts below convicted the accused based on conjectures and surmises rather than legal evidence; that P.Ws.1 and 2 did not identify the accused and the test identification parade was not conducted; that P.W.5 identified the accused for the first time during evidence; that the speed of the vehicle is not a criteria to convict the accused for the offence under Section 304-A IPC; that there is no rash and negligence on the part of the petitioner in causing the incident; that the prosecution failed to explain the reasons for the accident; that the Trial Court as well Sessions Court failed to appreciate the material on record in a proper perspective and erroneously convicted the petitioner and the same is liable to be set aside.
10. Per contra, Sri S.Dheera Kanishk, learned Special Assistant Public Prosecutor for the respondent submits that P.Ws.1, 2 and 5 consistently deposed about the negligent driving of the driver of the crime auto as well P.W.9 doctor, who given treatment to P.Ws.1 and 2 deposed about the injuries sustained by them in the road accident and their evidence clearly shows that while the deceased along with his son P.W.5 proceeding in crime auto, the driver of the said auto drove the same in a rash and negligent manner and dashed against the motor cycle of P.Ws.1 and 2, as a result auto also turned turtle and deceased died while undergoing treatment; that the prosecution witnesses categorically deposed about the rash and negligent driving of the petitioner at the time of incident; that P.W.5, who was proceedings in the crime auto as passenger, identified the accused as driver of the crime auto and that the prosecution proved the guilt of the accused beyond all reasonable doubt by examining P.Ws.1 to 13 and producing Exs.P.1 to P.15.
11. In view of the above rival contentions, this Court perused the material available on record. P.Ws.1 and 2 categorically deposed about the manner of the incident, rash and negligent driving of the driver of the crime auto that on 14.09.2006 at about 05.30 p.m., while P.Ws.1 and 2 were coming on motorcycle to Amalapuram, when they reached Jodu Tomulu of Bhatnavilli Village, the auto driven by the accused in a rash and negligent manner at high speed dashed against their motor cycle. Resulted, they sustained injuries. P.W.5 and his deceased father sat in the back side seat of the said auto.
12. The main contention of the accused is that P.Ws.1 and 2 did not identify him as driver of the crime auto, as such, there is no material on record to say that he drove the crime auto at the time of incident.
13. In this context, it is relevant to refer the testimony of P.W.5. He deposed that on 14.09.2006, himself and his father boarded an Auto bearing No.AP 20 U 7913 and the accused is the driver of the crime auto and when they reached near Jodutumulu of Batnavilli Village, the accused drove the said auto in a rash and negligent manner and dashed against a scooter in opposite direction. As a result, the auto turned turtle, himself and his father received injuries and later his father succumbed to injuries while undergoing treatment. The evidence of P.W.5 is very clear that accused was the driver of the crime auto by the time of incident and due to his negligence only the accident was occurred.
14. Regarding the identification of the accused, the Hon'ble Supreme Court in Rabindra Kumar Pal @ Dara Singh v. Republic of India1 held that "the identification of the accused for the first time before the trial Court is admissible in evidence. When the eye witness had an ample opportunity to see the accused at the scene of offence and they have identified the accused before the Court, there is no need of Test Identification Parade".
15. Herein this case, P.W.5, who said to be traveling in the crime auto along with his father (deceased) as one of the passenger by the date of incident, categorically identified the accused as driver of the crime auto. Further, the accused did not dispute the death of the deceased and injuries sustained by P.Ws.1 and 2 in the accident occurred on 14.09.2006. Even though P.Ws.3 and 4, who said to eye-witness to the incident, not supported the prosecution case, nothing was elicited during cross examination to disbelieve the testimony of P.Ws.1, 2 and 5 about the manner of the incident, injuries sustained by them, death of the deceased, identity of the accused as driver of the crime auto by the date of incident and their presence at the scene of offence. Furthermore, P.W.5 has every chance to identify the accused, because himself and deceased boarded the said auto as passengers on the date of incident and proceeded for some distance. The above all clearly proves that the accused was the driver of the crime auto by the date of incident and he driven the same in a rash and negligence manner, resulted death of the deceased and injuries to P.Ws.1 and 2.
1 (2011) 2 SCC 490
16. As per the undisputed testimony of P.W.9, on 14.09.2006, he treated P.Ws.1 and 2 and issued Exs.P.8 and P.9 wound certificates respectively. He also opined that injuries could cause in road traffic accident.
17. Further, as per the testimony and opinion of P.W.11-Motor Vehicle Inspector under Ex.P.11, the accident occurred is not due to any mechanical defect of the vehicle. The same is not disputed by the accused by way of any cross examination.
18. The trial Court as well Sessions Court categorically held that the testimony of prosecution witnesses clearly goes to show that the petitioner/accused had driven the vehicle in a rash and negligence manner at high speed and dashed against the deceased, as a result deceased succumbed to injuries and P.Ws.1 and 3 received injuries.
19. It is settled law that in view of the concurrent findings on facts by the Trial Court as well Sessions Court, this Court being Revisional Court is not expected to set aside the same without any material of perversity or manifest error in the findings arrived by both the Courts below. There is no material before this Court to discard the trustworthiness of prosecution witnesses.
20. All these facts go to show that both the Courts below rightly came to conclusion that there is rash and negligence on the part of the petitioner in causing the incident and that there is no apparent failure on the part of the Trial Court as well Sessions Court in appreciating the evidence on record or to arrive at a conclusion that prosecution proved the guilt of the accused for the said offences. In these circumstances, this Court is of the considered opinion that there is no perversity or flaw in the findings recorded by both the Courts below in convicting the accused for the said offences.
21. However, while arguing the matter, learned counsel for the petitioner/accused submits that the accident was occurred on 14.09.2006 and there are mitigating circumstances to reduce the sentence imposed against the petitioner by the trial Court, which was confirmed by the Sessions Court. He also brought to the notice of this Court a judgment of the Hon'ble Supreme Court reported in Nand Ballabh Pant v. State (Union Territory of Delhi)2, wherein the APEX Court considered the facts and reduced the period of sentence of imprisonment imposed on the appellate from two (2) months to one (1) month rigorous imprisonment.
22. He also brought to the notice of this Court another judgment of Hon'ble Supreme Court reported in Jagdish Chander v. State of Delhi3, wherein also the APEX Court considered the relevant circumstances and reduced the sentence of imprisonment to that of already undergone, but increased the sentence of fine from Rs.500/- to Rs.700/-.
23. In this connection, it is relevant to make a mention a judgment of the Hon'ble Supreme Court reported between Manish Jalan v. State of Karnataka4, wherein the relevant observation of Hon'ble Supreme Court at paragraph Nos.15 and 16 was that "the appellant has been found to be guilty of offences punishable under Sections 279 and 304A IPC for driving rashly and negligently on a public street and his act unfortunately resulted in the loss of a precious human life. It was a rash and negligent act simplicitor and 2AIR 1977 SC 892 3AIR 1973 SC 2127 4(2008) 8 SCC 225 not a case of driving in an inebriated condition. Having regard to the all these facts, a lenient view can be taken in the matter and the sentence of imprisonment can be reduced."
24. Even in Nagaraj v. Union of India5, the APEX Court at paragraph Nos.18 and 19 held that "the appellant/accused has already undergone one month jail sentence; second, the offence in question neither against the society nor it involves any moral turpitude and nor it has resulted in causing any harm or injury to any human being except causing some damage to the railway property, viz., one railway crossing gate; and lastly, the ofence is now 13 years old. In view of the aforementioned three reasons and in the interest of justice, therefore of the considered opinion that the six months jail sentence awarded to the appellate by the three Courts below deserves to be altered to what he has already undergone by the appellant till date."
25. As well in Mohinder Singh v. State of Haryana6, the Hon'ble Supreme Court held at paragraph No.2 that "they are not inclined to interfere on the merits of the case and at the same time, they cannot lose sight of fact that the occurrence took place more than a quarter of century back and to send the accused in prison after 25 years, would be travesty of justice."
26. No doubt, in the present case also the incident was said to be happened on 14.09.2006 and by this time seventeen (17) years have already been lapsed, but there was a loss of one human life and injuries sustained by two persons.
52019 (1) ALT (Crl.) 209 62019 (3) Crimes 89
27. Having regard to the above discussion and in view of the above pronouncements of the Hon'ble Supreme Court, this Court is of the considered opinion that the conviction is upheld, however, to meet the ends of justice, the sentence of imprisonment is reduced to three (3) months from six (6) months for the offences under Section 304-A, 337 and 338 of IPC.
28. In the result, the Criminal Revision Case is allowed in part, modifying the sentence of imprisonment imposed against the petitioner/accused to that of three (3) months simple imprisonment instead of six (6) months for the offences under Section 304-A, 337 and 338 of IPC. In respect of fine imposed, the judgment of the trial Court is hereby confirmed. The period of sentence, if any, already undergone by the petitioner/accused, shall be given set off under Section 428 Cr.P.C. The petitioner/accused is directed to surrender before the Court of learned Additional Judicial Magistrate of First Class, Amalapuram, to serve the remaining sentence, if not, the learned Magistrate concerned shall take steps against the petitioner.
Interim orders granted earlier if any, stand vacated. As a sequel, miscellaneous applications pending, if any, shall stand closed.
_______________________ JUSTICE V.SRINIVAS Date: 26.02.2024 Krs 147 THE HON'BLE SRI JUSTICE V.SRINIVAS CRIMINAL REVISION CASE No.2435 of 2011 DATE: 26.02.2024 Krs