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2022 DIGILAW 1371 (AP)

RAGATI HARI v. THE STATE OF AP REP BY ITS PP HYD

2022-11-24

A.V.RAVINDRA BABU

body2022
ORDER : This is a Criminal Revision Case is filed under Sections 397 and 401 of Criminal Procedure Code (“Cr.P.C.” for short), challenging the judgment in Criminal Appeal No.23 of 2007, dated 23.06.2008, on the file of I Additional Metropolitan Sessions Judge, Visakhapatnam, where under the learned Sessions Judge dismissed the Criminal Appeal filed by the petitioner, confirming the judgment in C.C.No.35 of 2006, dated 01.02.2007, on the file of the II Additional Chief Metropolitan Magistrate, Visakhapatnam. 2. The petitioner faced the trial under Section 304-A of Indian Penal Code (“I.P.C.” for short) in C.C.No.35 of 2006, dated 01.02.2007 and in the said case, the learned II Additional Chief Metropolitan Magistrate, Visakhapatnam, found the petitioner guilty of the offence under Section 304-A of I.P.C. and after questioning the him, sentenced him to suffer simple imprisonment for six months. 3. The parties to this Criminal Revision Case will hereinafter be referred as described before the trial Court, for the sake of convenience. 4. The State, represented by Sub-Inspector of Police, II Town Traffic Police Station, Visakhapatnam, filed charge sheet in Crime No.3 of 2006 of II Town Traffic Police Station, Visakhapatnam, alleging in substance as follows: (i) Accused is resident of Santhi Nagar, Kailasapuram Road, Visakhapatnam. He is the rider of Yamaha Rx 100 Motorcycle bearing Registration No.AP 31B 4110 at the time of occurrence. The offence took place on 06.01.2006 at 7-00 P.M. on the road near Ramakrishna Theatre, Kobbarithota, Visakhapatnam, within the limits of II Town Traffic Police Station. The deceased in the case is one Anipi Simhadri S/o late Raja Rao, aged 55 years. He is resident of SVP Nagar, Kobbarithota, Visakhapatnam. L.W.1-Anipi Kanaka Raju resident of Kancharapalem, Visakhapatnam, is the defacto-complainant and the son of the deceased. L.W.2-Vanapalli Govinda and L.W.3-K. Appa Rao are direct witnesses to the occurrence. (ii) On 06.01.2006 at 7-00 P.M., accused being rider of Yamaha Rx 100 Motorcycle bearing No.A.P.31B 4110, driven the same in a rash and negligent manner while coming from Ramakrishna junction towards Dolphin Junction. With the motorbike, he dashed the pedestrian (deceased) while crossing the road near Ramakrishna Theatre, Kobbarithota, Visakhapatnam. Then the deceased fell on the road and sustained injuries and blood oozed out from the ear and nose. He was shifted to King George Hospital, Visakhapatnam for treatment on 07.01.2006 in unconscious state. With the motorbike, he dashed the pedestrian (deceased) while crossing the road near Ramakrishna Theatre, Kobbarithota, Visakhapatnam. Then the deceased fell on the road and sustained injuries and blood oozed out from the ear and nose. He was shifted to King George Hospital, Visakhapatnam for treatment on 07.01.2006 in unconscious state. While undergoing treatment, he succumbed to injuries at the hospital on 09.01.2006 at 2-00 P.M. (iii) L.W.11, Head Cosntable-436 recorded the statement of L.W.1 and forwarded the same to L.W.12. Originally, L.W.12 registered a case in Crime No.3 of 2006 under Section 337 of I.P.C. and investigated into. He examined the scene of offence and prepared rough sketch and examined the witnesses. After the death of deceased, section of law was altered into Section 304-A of IPC. Inquest was held over the dead body of the deceased on 10.01.2006 during the course of investigation. Later, the body was referred for postmortem examination to the Professor, Forensic Medicine, Andhra Medical College, Visakhapatnam. The Assistant Professor of Forensic Medicine, Andhra Medical College, Visakhapatnam, conducted autopsy over the dead body of the deceased and issued postmortem certificate, opining that he died due to Respiratory and circulatory failure due to injury to skull bone, injury to brain due to “Head Injury”. L.W.12, the investigating officer, arrested the accused on 12.01.2006 at 12-00 noon and sent him for judicial remand. The Assistant Motor Vehicle Inspector, Visakhapatnam, inspected the crime vehicle and issued a report, opining that the accident was not due to any mechanical defects of the vehicle. After completion of the investigation, charge sheet is laid. (iv) The learned II Additional Chief Metropolitan Magistrate, Visakhapatnam, took the case on file under Section 304-A of I.P.C. and after appearance of the accused and after furnishing copies of documents, examined him under Section 251 of Cr.P.C. with reference to allegations in the prosecution case. Accused denied the allegations, pleaded not guilty and claimed to be tried. (v) During the course of trial, on behalf of the prosecution, P.Ws.1 to 7 were examined and Exs.P.1 to P.7 were marked. After closure of the evidence of prosecution, accused was examined under Section 313 of Cr.P.C. with reference to the incriminating circumstances appearing in the evidence, for which the accused denied the incriminating circumstances and reported no defence evidence. (v) During the course of trial, on behalf of the prosecution, P.Ws.1 to 7 were examined and Exs.P.1 to P.7 were marked. After closure of the evidence of prosecution, accused was examined under Section 313 of Cr.P.C. with reference to the incriminating circumstances appearing in the evidence, for which the accused denied the incriminating circumstances and reported no defence evidence. (vi) The learned II Additional Chief Metropolitan Magistrate, Visakhapatnam, after hearing both sides and on considering the oral as well as documentary evidence, found the accused guilty of the offence under Section 304-A of I.P.C. and after questioning him about the quantum of sentence, sentenced him to suffer simple imprisonment for six months. Aggrieved by the same, the unsuccessful accused in C.C.No.35 of 2006, filed Criminal Appeal No.23 of 2007 before the I Additional Metropolitan Sessions Judge, Visakhapatnam and the learned appellate Court dismissed the appeal filed by the appellant, confirming the judgment of the trial Court. Aggrieved by the same, the unsuccessful appellant in Criminal Appeal No.23 of 2007, filed the present Criminal Revision Case. 5. Now in deciding the Criminal Revision Case, the point that arises for consideration is whether the judgment in Criminal Appeal No.23 of 2007, on the file of the I Additional Metropolitan Sessions Judge, Visakhapatnam, dated 23.06.2008, suffers with any illegality, irregularity or impropriety and whether there are any grounds to interfere with the same? Point: 6. Sri Siva Sai Swaroop, learned counsel, representing learned counsel for the Revision Petitioner, would contend that the Courts below without proper analyzation of the evidence on record and without looking into the probabilities of the case, erred in convicting the accused for the offence under Section 304-A of I.P.C. There was no material before the trial Court to establish the identity of the accused and the evidence of P.Ws.2 and 3 was interested in nature. P.W.1, the maker of the F.I.R. was not the witness to the occurrence. However, both the Courts below erroneously relied upon the evidence of P.Ws.2 and 3 and recorded an order of conviction, which is not tenable. The learned counsel, Sri Siva Sai Swaroop, apart from the said contention, would also canvass a contention that in case of dismissal of this Criminal Revision Case, the sentence imposed against the petitioner, may be reduced. 7. The learned counsel, Sri Siva Sai Swaroop, apart from the said contention, would also canvass a contention that in case of dismissal of this Criminal Revision Case, the sentence imposed against the petitioner, may be reduced. 7. The learned counsel by name Sri Y. Jagadeeswara Rao, representing learned Public Prosecutor, would seeks to support the judgment of the trial Court on the ground that the evidence of P.Ws.2 and 3 remained unshaked during the course of cross examination and they were natural witnesses, who witnessed the occurrence and their evidence is trustworthy and both the Courts below rightly looked into the evidence on record and rightly recorded an order of conviction as the case may be and even the learned II Additional Chief Metropolitan Magistrate, Visakhapatnam, took a lenient view and imposed only six months simple imprisonment, as such, the Criminal Revision Case is liable to be dismissed. 8. In the light of the facts and circumstances, what the prosecution was supposed to establish before the trial Court is as to whether the accused was the driver of the offending vehicle i.e., motorbike bearing No.A.P.31B 4110 at the time of incident and as to whether he drove the same in a rash and negligent manner and caused the death of deceased. 9. P.W.1 before the trial Court is no other than the son of deceased, who came to know about the occurrence and gave statement under Ex.P.1. For better appreciation, it is pertinent to look into the substance of the allegations in Ex.P.1. As seen from Ex.P.1, it is purported statement recorded from the mouth of P.W.1 which runs in substance that the date of offence is 06.01.2006 at 7-00 P.M. His father Simhadri at Ramakrishna Theatre, was crossing the road. Then a motorbike came with high speed in a rash and negligent manner and hit his father. As his father did not find any visible injuries, he was taken to house. On 07.01.2006, evening he came to his father and took him to the hospital where he died. This is a substance of the allegations raised in Ex.P.1. 10. Now coming to the evidence part of P.W.1, his evidence is very clear that he was told that his father died of accident while he was crossing the road. His father was taken to the house and there from to the hospital. This is a substance of the allegations raised in Ex.P.1. 10. Now coming to the evidence part of P.W.1, his evidence is very clear that he was told that his father died of accident while he was crossing the road. His father was taken to the house and there from to the hospital. His father was treated for 1 ½ days and he told him that a motorcycle hit him. Thereafter he died. Ex.P.1 is his report. 11. Now coming to the evidence of P.W.2, who claimed to be a witness to the occurrence, he deposed that he is doing selling of flowers since 10 years. He is a flower vendor. He was coming by selling flowers from Kobbarithota towards Durgalamma temple on the date of incident. One old man was coming towards Durgalamma temple. One boy was riding a motorcycle. He can identify the said boy. He was riding motorcycle at speed and consequently hit the old man and he sustained injuries. He (P.W.2) left the place. Number of vehicle is A.P.31 V 4110. He was examined by the police. 12. P.W.3 deposed that he is a flowers vendor since 20 years. He witnessed the accident while he was selling flowers. When he reached nearby Durgalamma temple, the accident was happened. The road was leading from Ramakrishna junction to Dolphin hotel. One boy was riding Yamaha motorcycle negligently at high speed and hit a person there and the said person sustained injuries on the head. Blood was coming out from the nose. Accused is the person, who was riding the motorcycle on that day. He informed the incident to injured son. He was examined by the police. The injured was alive at the time of accident. 13. P.W.4 is the wife of the deceased, who spoken to the fact that the deceased died two years ago due to hitting by a motorcycle. One boy told about the accident. The deceased was brought from Durgalamma temple where the accident took place. He sustained injury and blood was oozing out from nose and mouth. She took him to King George Hospital where he died after surviving for one day. Her son gave report to police. 14. P.W.5 testified that he was present at the time of inquest and Ex.P.2 is inquest report and it bears his signature. He sustained injury and blood was oozing out from nose and mouth. She took him to King George Hospital where he died after surviving for one day. Her son gave report to police. 14. P.W.5 testified that he was present at the time of inquest and Ex.P.2 is inquest report and it bears his signature. P.W.6 is the Motor Vehicle Inspector, who deposed that he received a requisition from Station House Officer, II Town Police Station on 10.01.2006 and inspected the motorcycle bearing No.A.P.31B 4110 on the even day at II Town Traffic Police Station at Visakhapatnam. He found the breaks system of the vehicle is intact. The accident occurred was not due to any mechanical defects of the vehicle. Ex.P.3 is certificate issued by him. P.W.7 is the person, who conducted autopsy over the dead body of the deceased and issued Ex.P.4. The cause of death is respiratory and circulatory failure due to injury to skull, injury to brain. Ex.P.4 is the postmortem report. P.W.8 is the person, who recorded the statement of P.W.1 and he testified the same. P.W.9 is the investigating officer, who spoken about the investigation. 15. Admittedly, according to the case of prosecution, P.W.1 is not the direct witness to the occurrence. The date of offence was 06.01.2006 and the statement from P.W.1 came to be recorded on 07.01.2006. It appears from the inquest report that though originally the injured did not find any visible injuries on his body and he was taken to the house and on the very next day when the blood was oozing from his nose and mouth, he was taken to the hospital and in the hospital he died. So, on account of the delay in recording the statement of P.W.1 by the police, the case of the prosecution cannot be thrown out. In a case of this nature, the delay is bound to be occurred. When the date of incident was said to be on 06.01.2006, the injured was brought to the hospital on the very next day, as such, the facts came to the knowledge of the police only on the next day where the statement of P.W.1 was recorded. 16. In a case of this nature, the delay is bound to be occurred. When the date of incident was said to be on 06.01.2006, the injured was brought to the hospital on the very next day, as such, the facts came to the knowledge of the police only on the next day where the statement of P.W.1 was recorded. 16. Now, this Court has to see whether the evidence adduced by the prosecution before the trial Court would establish the identity of the accused that he was the rider of the offending vehicle at the time of incident and if so whether he drove the vehicle in a rash and negligent manner and caused the death of the deceased. To establish the same, there is evidence of P.Ws.2 and 3. As this Court already pointed out that P.W.2 testified the fact that he can identify the driver and the driver driven the vehicle with speed. Turning to the evidence of P.W.3, he categorically testified that the accused is the person, who driven the vehicle in a rash and negligent manner at the time of accident. 17. Now, I would like to look into the cross examination part of P.Ws.2 and 3 to ascertain as to whether their evidence is convincing or not and to sustain his conviction and in their evidence they remains anything in support of the contention of the accused. This Court would like to make it clear that the defence of the accused is denial simplicitor, though specific and distinct incriminating circumstances were put before him by the trial Court during Section 313 Cr.P.C. examination. He denied the same and reported no defence witnesses and when he asked that whether he wishes to say anything, he replied that his Lawyer would say. So, when the evidence adduced by the prosecution is so specific that the accused was the driver of the offending vehicle at the time of accident in question and he drove the same with high speed and hit the deceased, accused did not venture to deny the fact that he was the driver of the vehicle at the time of accident. So, virtually, he has no say that he was not driving the vehicle at the time of accident and that he did not drive the same in the manner as alleged by the prosecution. So, virtually, he has no say that he was not driving the vehicle at the time of accident and that he did not drive the same in the manner as alleged by the prosecution. So, the denial simplicitor made by the accused is nothing but evasive in my considered view when crucial facts were spoken by P.Ws.2 and 3 as regards the identity of the accused and also the fact that accused driven the vehicle in a rash and negligent manner and those things were put to the accused. Accused was supposed to explain the same. So, the defence of the accused is nothing but evasive before the trial Court. 18. Now coming to the cross examination part of P.W.2, he is selling flowers at Kurupam market. He was riding the cycle from Kobbarithota at the time of accident. He witnessed the accident while he was coming to the road from the lane. Four or five persons were there when he witnessed the accident. Injured was alive and blood was coming out from the nose. He happened to witness the accident while he was going that side. Someone has lifted the injured. For the first time, he is giving evidence. He denied that he was not present at the scene of offence and he was not selling flowers by then. 19. Coming to the evidence of P.W.3 during the course of cross examination he stated that he is a hawker and selling flowers. Deceased was also a flower vendor and he was aged 50 or 60 years. Deceased maintained a shop. He resides at behind Ramakrishna theatre. The accident was occurred while he (P.W.3) was going towards a lane by the side of Durgalamma temple. He stated before the police that the accused was riding the motorcycle without blowing horn and at speed. The vehicle hit the deceased while he was crossing the divider. The vehicle hit while the deceased was crossing the road and the question of hitting front side or back side as suggested does not arise. He fell down soon after the hitting. He denied that he was not present at the time of accident. 20. The vehicle hit the deceased while he was crossing the divider. The vehicle hit while the deceased was crossing the road and the question of hitting front side or back side as suggested does not arise. He fell down soon after the hitting. He denied that he was not present at the time of accident. 20. In the light of answers spoken by P.W.3 on minute aspects in the cross examination that when the deceased was crossing the road, the vehicle hit, etc., the suggestion put forth before P.W.3 that he was not present at the time of accident cannot stands to any reason. P.Ws.2 and 3 were quietly emphatic about their presence at the time of occurrence and accused failed to dent their cross examination in any way to suit his defence. Having gone through the evidence of P.Ws.2 and 3 carefully, this Court is of the considered view that their evidence cannot be disbelieved at all. Simply, because P.Ws.2 and 3 were the flower vendors and the deceased was also a flower vendor, their evidence cannot be branded as interested in nature. Under the circumstances, I am of the considered view that the evidence adduced by the prosecution regarding the identity of the accused as rider of the motorcycle is quietly believable. 21. Now coming to the manner of accident, a pedestrian is certainly entitled to cross the road. Ultimately, it is for the driver of the motorbike or the vehicle to take care of the pedestrian, who would cross the road naturally. Virtually, it is not the defence of the accused that there was any negligence on the part of the deceased in trying to cross the road. If the accused was not at fault and if the fault was on the part of the deceased, accused is bound to open his mouth suggesting any probabilities in his defence that he was not at all fault in driving the vehicle. Accused for the reasons best known to him, made evasive defence and denied everything and has no probable say at all to suit his defence. In the circumstances of the case P.Ws.2 and 3 withstood the probing cross examination made on behalf of the accused and the answers that are spoken by P.Ws.2 and 3 would further lends an assurance to the case of prosecution as having witnessed the occurrence. 22. In the circumstances of the case P.Ws.2 and 3 withstood the probing cross examination made on behalf of the accused and the answers that are spoken by P.Ws.2 and 3 would further lends an assurance to the case of prosecution as having witnessed the occurrence. 22. So, the evidence of them is that the accused came in the motorbike with high speed and hit the deceased negligently. Having considered the evidence of P.W.7, the person, who conducted autopsy over the dead body of the deceased, coupled with Ex.P.4, the postmortem report, there is a link established by the prosecution that the cause of death was on account of the injuries received by the deceased which the deceased sustained when he was hit by the motorbike of the accused. 23. A perusal of the judgment of the trial Court reveals that the trial Court furnished cogent reasons and rightly believed the evidence of P.Ws.2 and 3. The learned I Additional Metropolitan Sessions Judge, Visakhapatnam also when the accused raised various contentions in the Criminal Appeal, rightly looked into all those contentions and negatived the contentions of the accused. The findings of the learned appellate Court are such that P.Ws.2 and 3 fully supported the case of the prosecution and their evidence is not all impeached and their evidence on the crucial aspect is quietly believable. The learned I Metropolitan Sessions Judge, Visakhapatnam rightly looked into the fact that the accident occurred was not on account of any mechanical defect of the vehicle in question. 24. Apart from this, the investigation done by P.W.7, the investigating officer, is also on right lines. Having regard to the evidence on record, I am of the considered view that the prosecution before the trial Court was successfully able to establish the guilt of the accused beyond reasonable doubt under Section 304-A of IPC. 25. The learned counsel for the petitioner also canvassed a contention herein that in the event of dismissal of the Criminal Revision Case by this Court, the Court may consider to reduce the quantum of sentence imposed against the petitioner. It is to be noticed that the offence under Section 304-A of IPC is punishable with imprisonment of either description for a term which may extend to two years. The learned II Additional Chief Metropolitan Magistrate, Visakhapatnam, after questioning the accused, imposed only six months simple imprisonment. It is to be noticed that the offence under Section 304-A of IPC is punishable with imprisonment of either description for a term which may extend to two years. The learned II Additional Chief Metropolitan Magistrate, Visakhapatnam, after questioning the accused, imposed only six months simple imprisonment. The above sentence by the learned II Additional Chief Metropolitan Magistrate, Visakhapatnam cannot be said to be excessive or harsh at all. Already the learned trial Court took a lenient view, which was confirmed by the appellate Court. 26. Having regard to the above, I am of the considered view that the sentence imposed against the Revision Petitioner before the trial Court which was confirmed by the appellate Court in the Criminal Appeal is not liable to be interfered with and I see no reason to reduce the said sentence of imprisonment. Hence, I am of the considered view that the judgment in Criminal Appeal No.23 of 2007, dated 23.06.2008, on the file of the I Additional Metropolitan Sessions Judge, Visakhapatnam, does not suffers with any illegality, irregularity and impropriety, as such, the Criminal Revision Case must fail. 27. In the result, the Criminal Revision Case is dismissed. Consequently, miscellaneous applications pending, if any, shall stand closed.