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2022 DIGILAW 452 (TS)

M. Narayana v. State of Andhra Pradesh

2022-07-13

JUVVADI SRIDEVI

body2022
ORDER : 1. This Criminal Revision Case, under Sections 397 & 401 of Cr.P.C. is filed by the petitioner/accused, challenging the judgment, dated 17.12.2007, passed in Criminal Appeal No. 240 of 2007 by the IV Additional Metropolitan Sessions Judge, Hyderabad, whereby, the judgment, dated 29.06.2007, passed in C.C. No. 736 of 2003, by the IV Additional Chief Metropolitan Magistrate, Hyderabad, convicting the petitioner/accused of the offence under Section 304A of IPC and sentencing him to undergo imprisonment for a period of six months and to pay fine of Rs.5,000/- in default, to undergo simple imprisonment for one month, was confirmed. 2. I have heard the submissions of the learned counsel for the petitioner/accused and the learned Assistant Public Prosecutor representing the respondent-State. I have perused the record. 3. The charge-sheet allegations, in brief, are that on 06.12.2002 evening hours, the de-facto complainant-Thota Vijay, along with his wife-Sridevi and son-Suraj, aged 13 months, was proceeding on Bajaj Chetak Scooter bearing registration No. AP-10-J-5576 from their house to Boduppal to visit their relative. When he reached near Mahaveer Emporium, Habsiguda, an APSRTC Bus bearing registration No. AP-09-Z-5820, being driven by its driver in a rash and negligent manner, hit the scooter from backside. While the bus ran over the minor boy Suraj resulting in his instantaneous death, Sridevi received severe injuries on her head and the complainant received simple injuries. Immediately, the complainant and his wife Sridevi were shifted to Gandhi Hospital for treatment, where the doctor declared that the wife of the complainant Sridevi was brought dead. On a report lodged by the complainant, the police registered the subject crime, completed investigation, and laid charge-sheet before the trial Court against the driver of the bus for the offence under Section 304A of IPC. 4. To substantiate the case of prosecution, PWs.1 to 11 were examined and Exs.P1 to P9 were marked. On behalf of the petitioner-accused, no evidence, either oral or documentary, has been adduced. 5. The trial Court, after analyzing the entire evidence on record, holding that the subject accident occurred due to rash and negligent driving of the driver of the bus bearing registration No. AP-09-0Z-5820, as such, he is liable for conviction, convicted and sentenced the petitioner-accused as stated supra. Aggrieved by the same, the petitioner-accused preferred the subject Criminal Appeal No. 240 of 2007 before the Court below. Aggrieved by the same, the petitioner-accused preferred the subject Criminal Appeal No. 240 of 2007 before the Court below. The Court below, after re-appreciating the entire evidence on record, confirmed the judgment of the trial Court. Aggrieved by the same, the petitioner-accused filed this Criminal Revision Case. 6. Learned counsel for the petitioner/accused would submit that the lower appellate Court, without properly appreciating the material placed on record, erroneously confirmed the judgment of the trial Court. The ingredients of Section 304A of IPC have not been made out against the petitioner-accused. There are contradictions and material omissions in the evidence of prosecution witnesses. The subject accident took place due to the negligent driving of the de-facto complainant, but not due to rash and negligent driving of the petitioner-accused. Further, PW-9-Motor Vehicle Inspector categorically deposed that there was no damage caused to the scooter in the subject accident. If really the bus had hit the scooter from backside at a high speed, there could have been damages to the scooter also. This makes the subject accident improbable. Further, the passengers of the subject bus were not examined to prove the rash and negligent driving on the part of the petitioner-accused. It is a fit case to acquit the petitioner-accused of the charge levelled against him and ultimately prayed to allow the Criminal Revision Petition as prayed for. 7. Per contra, the learned Assistant Public Prosecutor would submit that the subject accident took place due to the rash and negligent driving of the petitioner-accused. There are direct witnesses to the subject accident. There are no contradictions and material omissions in the evidence of prosecution witnesses. The evidence placed on record clinchingly proves the guilt of the petitioner-accused beyond all reasonable doubt. Hence the trial Court was justified in convicting and sentencing the petitioner-accused, which was rightly confirmed by the lower appellate Court. There are no circumstances to interfere with the impugned judgment and ultimately prayed to dismiss the Criminal Revision Case. 8. In view of the above submissions, the point that arises for determination in this Criminal Revision Case is as follows: “Whether the impugned judgment, dated 17.12.2007, passed in Criminal Appeal No. 240 of 2007 by the IV Additional Metropolitan Sessions Judge, Hyderabad, is legally sustainable?” POINT: 9. The petitioner was convicted for the offence under Section 304A of IPC. 8. In view of the above submissions, the point that arises for determination in this Criminal Revision Case is as follows: “Whether the impugned judgment, dated 17.12.2007, passed in Criminal Appeal No. 240 of 2007 by the IV Additional Metropolitan Sessions Judge, Hyderabad, is legally sustainable?” POINT: 9. The petitioner was convicted for the offence under Section 304A of IPC. The date of commission of offence, i.e. 06.12.2002 is not in dispute. PW-3 is a star witness in this case. He is an independent direct witness to the subject accident. He deposed that the petitioner-accused drove the subject bus in a rash and negligent manner and hit the scooter from its backside which resulted in small kid and the mother of kid fell down on road, bus ran over on the head of the kid causing his instantaneous death and injuries to the wife of the complainant. He further deposed that they caught hold the accused and handed over to the police. He further identified the accused in the Court. Though PW-3 was cross examined, nothing was elicited to disprove his testimony in examination-in-chief. PW-2, the injured witness, also deposed about the bus hitting the scooter resulting in instantaneous death of his minor son and injuries to himself and his wife. PW-8, the doctor who conducted autopsy over the dead body of the minor boy and wife of the complainant, deposed in his evidence that the wife of the complainant (Sridevi) died due to head injury which might have been caused in a road accident. He further deposed that he also conducted autopsy over the dead body of the minor boy and he died due to injuries caused to head and neck and the said injuries might have been caused in road accident. He issued Ex.P6-PME Report. The evidence of PWs.1 to 8 and 10 coupled with Ex.P1-complaint, Ex.P2-Scene of offence panchanama, Ex.P3-rough sketch, Ex.P4-two inquest reports of the deceased, Ex.P5-PME Report of the deceased Sridevi, Ex.P6-PME Report of minor boy Suraj and Ex.P9-FIR, substantiates that the subject accident occurred due to rash and negligent driving of the driver of the RTC bus bearing registration No. AP-09-Z-5820, which resulted in instantaneous death of the minor boy Suraj and death of the wife of complainant Sridevi and receiving injuries by the complainant. There is consistency and corroboration in the evidence of prosecution witnesses. There is consistency and corroboration in the evidence of prosecution witnesses. There are no contradictions and material omissions in the evidence of prosecution witnesses. Further, in view of the direct evidence of independent witness with regard to the subject accident, the contention of the learned counsel for the petitioner-accused that since no damage was caused to the scooter, the subject accident is improbable, needs no consideration. Further, non-examination of the passengers of the bus is not fatal to the case of the prosecution. All the requirements for establishing the offence under Section 304A of IPC against the petitioner-accused have been made out. Both the Courts below, having meticulously analyzed the evidence on record in correct perspective, rightly convicted the petitioner-accused for the offence under Section 304A IPC. 10. As far as the quantum of sentence imposed against the revision petitioner is concerned, the offence took place as long back as in the year 2002. The petitioner/accused attended the trial Court as well as the lower appellate Court in connection with this case. Further, the petitioner/accused was on bail throughout the case before the trial Court as well as the lower appellate Court. Further, this Court, vide order, dated 19.12.2007, passed in Crl. R.C.M.P. No. 2602 of 2007, granted suspension of sentence against petitioner/accused and ordered his release on bail. It is brought to the notice of this Court that in all, the petitioner/accused was in judicial custody for a period of 3 days in connection with this case. 11. In B.G. Goswami vs. Delhi Administration, (1974) 3 SCC 85 the Hon’ble Supreme Court, while reducing the punishment to the period already undergone by the accused therein, laid down the general principles that are to be borne in mind by the Courts while determining the quantum of punishment. It was observed as follows: “The sentence of imprisonment can be for a lesser period but in that event the Court has to assign special reasons which must be recorded in writing. In considering the special reasons the judicial discretion of the Court is as wide as the demand of the cause of substantial justice. Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations which weigh with a judicial mind in determining its appropriate quantum in a given case. In considering the special reasons the judicial discretion of the Court is as wide as the demand of the cause of substantial justice. Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act which is not only harmful to the society of which he forms an integral part, but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and re-claim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to jail now after 7 years of the agony and harassment of these proceedings when he is also going to lose his job and to earn a living for himself and for his family members and for those dependent on him, we feel that it would meet the ends of justice if we reduce the sentence of imprisonment to that already undergone but increase the sentence of fine from Rs. 200/- to Rs. 400/-. Period of imprisonment in case of default will remain the same.” 12. Further, in the recent decision of the Hon’ble Apex Court in V.K. Verma vs. CBI, (2014) 3 SCC 485 it was held as follows: “In imposing a punishment, the concern of the court is with the nature of the act viewed as a crime or breach of the law. The maximum sentence or fine provided in law is an indicator on the gravity of the act. The maximum sentence or fine provided in law is an indicator on the gravity of the act. Having regard to the nature and mode of commission of an offence by a person and the mitigating factors, if any, the court has to take a decision as to whether the charge established falls short of the maximum gravity indicated in the statute, and if so, to what extent. The long delay before the courts in taking a final decision with regard to the guilt or otherwise of the accused is one of the mitigating factors for the superior courts to take into consideration while taking a decision on the quantum of sentence. The Appellant is now aged 76. We are informed that he is otherwise not keeping in good health, having had also cardio vascular problems. The offence is of the year 1984. It is almost three decades now. The accused has already undergone physical incarceration for three months and mental incarceration for about thirty years. Whether at this age and stage, it would not be economically wasteful, and a liability to the State to keep the Appellant in prison, is the question we have to address. Having given thoughtful consideration to all the aspects of the matter, we are of the view that the facts mentioned above would certainly be special reasons for reducing the substantive sentence but enhancing the fine, while maintaining the conviction.” 13. While determining the quantum of sentence, the Court is expected to strike balance between too harsh and too lenient view. Balancing has to be done between the rights of the accused and the needs of society at large. It would also be a daunting challenge to preserve the trust of citizens when using the authority of the Courts to convict an accused. In the instant case, the incident pertains to the year 2002, i.e. more than 19 years ago. The petitioner/accused has already undergone physical incarceration for about 3 days and mental trauma for about 19 years. Keeping in view the provisions of Article 21 of the Constitution of India and the interpretation thereof qua the right of an accused to a speedy trial, judicial compassion can play a role and a convict can be compensated for the mental agony which he undergoes on account of protracted trial. Keeping in view the provisions of Article 21 of the Constitution of India and the interpretation thereof qua the right of an accused to a speedy trial, judicial compassion can play a role and a convict can be compensated for the mental agony which he undergoes on account of protracted trial. Under these circumstances, directing the petitioner/accused to serve the remaining period of sentence imposed upon him would be unfair. Article 21 of the Constitution would bring within its sweep, not only expeditious trial but disposal of appeals and revisions. Having given thoughtful consideration to all the aspects of the matter, this Court is of the considered opinion that the facts mentioned above would certainly be special reasons for reducing the substantive sentence, while maintaining the conviction. Considering the totality of the circumstances, this Court deems it appropriate that if the sentence of imprisonment is modified to the period already undergone by the petitioner/accused, the same would sub-serve the ends of justice. 14. Accordingly, while maintaining the conviction recorded against the petitioner/accused, the sentence of imprisonment imposed against him by the trial Court and confirmed by the lower appellate Court, is reduced to the period of imprisonment already undergone by him. The fine amount of Rs.5000/- imposed is maintained, along with default sentence. 15. With the above reduction/modification of sentence of imprisonment, this Criminal Revision Case is dismissed, being devoid of merit. 16. Miscellaneous Petitions, if any, pending in this Criminal Revision Case, shall stand closed.