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2023 DIGILAW 192 (AP)

Korada Pydiraju v. State Of A. P.

2023-01-24

A.V.RAVINDRA BABU

body2023
ORDER : This Criminal Revision Case is filed by the petitioner, who was the appellant in Criminal Appeal No.140 of 2005, on the file of I Additional District and Sessions Judge, Vizianagaram, challenging the judgment, dated 24.06.2009, whereunder the learned I Additional District and Sessions Judge, Vizianagaram, dismissed the Criminal Appeal filed by the appellant by confirming the judgment of the trial Court in C.C.No.332 of 2004 wherein the accused was found guilty for the offences under Sections 304-A, 338 and 337 of Indian Penal Code (“I.P.C.” for short) and was convicted and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs.1,000/- in default to suffer for simple imprisonment for two months for the offence under Section 304-A of I.P.C. and sentenced to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for two months for the offence under Section 338 of I.P.C. and further sentenced to pay a fine of Rs.500/- in default to suffer simple imprisonment for one month for the offence under Section 337 of I.P.C. 2. The parties to this Criminal Revision Case will hereinafter be referred to as described before the trial Court for the sake of the convenience. 3. The State, represented by the Sub-Inspector of Police, Denkada Police Station, filed a charge sheet pertaining to Crime No.50 of 2003 of the said police station alleging the offences under Sections 304-A, 338 and 337 of I.P.C. 4. Briefly to state the case of the prosecution is as follows: Accused is the driver of Auto bearing No. AP 35 T 5128. He drove the auto from Nathavalasa to Vizianagaram on 16.06.2003. On 16.06.2003 one Sheik Srinivasa Rao (hereinafter will be referred to as “deceased”) was proceeding towards Nathavalasa from Vizianagaram on his motorcycle bearing A.P.35 C 3374 by keeping on left side. L.W.3-Meesala Ramu was also sitting as pillion rider. Accused drove the auto rashly and negligently and hit the motorcycle of the deceased in opposite direction at 4-30 P.M. As a result, the deceased received severe injuries and died on the spot. L.W.3, the pillion rider of the motorcycle received grievous injuries. L.Ws.1 and 2-Penumajji Dalinaidu and Vasi Chinnayya respectively, the passengers in the auto also received injuries. Injured were shifted to Government Hospital, Vizianagaram. Accused also received injuries. Having witnessed the occurrence, L.W.4-Lenka Rajeswari intimated the incident to L.W.6-Shaik Sarvor and others. L.W.3, the pillion rider of the motorcycle received grievous injuries. L.Ws.1 and 2-Penumajji Dalinaidu and Vasi Chinnayya respectively, the passengers in the auto also received injuries. Injured were shifted to Government Hospital, Vizianagaram. Accused also received injuries. Having witnessed the occurrence, L.W.4-Lenka Rajeswari intimated the incident to L.W.6-Shaik Sarvor and others. On receipt of information, L.W.17, concerned police rushed to the hospital and recorded the statement of L.W.1 and registered a case in Crime No.50 of 2003 under Sections 304-A, 338 and 337 of I.P.C. and took up investigation. He conducted inquest over the dead body of the deceased in the presence of mediators and direct witnesses. He also observed the scene of occurrence in the presence of mediators. He got conducted postmortem to the dead body of the deceased. He arrested the accused on 21.06.2003 and sent him for remand. The Motor Vehicles Inspector inspected the crime vehicle and opined that the accident was not due to any mechanical defects of the crime auto. L.W.11-G. Venkataramana, the owner of the auto confirmed that the accused was the driver of the auto on the date of offence. The cause of death of deceased was due to haemorrhage and shock and due to sudden ante mortem injuries to the brain. The Medical Officer, who treated the injured, issued wound certificates stating that the first injured and second injured received simple injuries and third injured received grievous injuries. The Radiologist took X-ray on the third injured. Hence, the charge sheet. 5. The learned Additional Judicial Magistrate of First Class, Vizianagaram in C.C.No.362 of 2003, took cognizance against the accused for the offences under Sections 304-A, 338 and 337 of I.P.C. and after furnishing copies of documents, examined the accused under Section 251 of the Code of Criminal Procedure (“Cr.P.C.” for short) as regards the allegations in the charge sheet and explained to him in Telugu for which he pleaded not guilty and claimed to be tried. Thereafter, C.C.No.362 of 2003 was transferred from the Additional Judicial Magistrate of First Class, Vizianagaram to the Court of Special Judicial Magistrate of First Class (Excise), Vizianagaram and was renumbered as C.C.No.332 of 2004 and proceeded with the trial. 6. In order to prove the guilt of the accused, the prosecution before the Court below examined P.Ws.1 to 15 and got marked Exs.P.1 to P.20. 6. In order to prove the guilt of the accused, the prosecution before the Court below examined P.Ws.1 to 15 and got marked Exs.P.1 to P.20. After closure of the evidence of the prosecution, accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances in the evidence adduced by the prosecution, for which he denied the same and stated that he has no defence evidence. 7. The learned Special Judicial Magistrate of First Class (Excise), Vizianagaram, on hearing both sides and on considering the oral as well as documentary evidence, found the accused guilty of the offences under Sections 304-A, 338 and 337 of I.P.C. and after questioning him about the quantum of sentence, convicted him under Section 255 (2) of Cr.P.C. sentenced him as above. Challenging the judgment of the trial Court, the unsuccessful accused filed the Criminal Appeal No.140 of 2005 before I Additional District and Sessions Judge, Vizianagaram, which came to be dismissed on merits on 24.06.2009. Challenging the same, the present Criminal Revision case is filed. 8. Now, in deciding the present Criminal Revision Case, the point that arises for consideration is as to whether the judgment, dated 24.06.2009 of the learned I Additional District and Sessions Judge, Vizianagaram in Criminal Appeal No.140 of 2005 suffers with any illegality, irregularity and impropriety and whether there are any grounds to interfere with the judgment of the learned I Additional District and Sessions Judge, Vizianagaram? Point :- 9. Sri G.V. Sailendra, learned counsel, representing the learned counsel for the petitioner, would contend that there are discrepancies in the evidence of P.Ws.1 and 2 which were not considered by the Courts below properly. There was no chance for P.W.1 to witness the occurrence, as he was sitting in the Baby seat opposite to the seat of the driver, as such, he would have no chance to observe what was happened in the front of the auto. The prosecution did not examine other persons, who travelled in the auto and there was discrepancies as how many persons travelled in the auto. As per the evidence of investigating officer, the road was a busy road and several government offices are located. So, there was no possibility for the accused to drive the auto in high speed. The prosecution did not examine other persons, who travelled in the auto and there was discrepancies as how many persons travelled in the auto. As per the evidence of investigating officer, the road was a busy road and several government offices are located. So, there was no possibility for the accused to drive the auto in high speed. Both the Courts below failed to consider that the burden lies on the prosecution to prove the guilt against the accused, as such, the judgment of the appellate Court is not sustainable. Therefore, it is liable to be interfered. 10. Sri Y. Jagadeeswara Rao, learned counsel, representing the learned Public Prosecutor, would contend that P.Ws.1 and 2 are the injured witnesses and P.W.2 is defacto-complainant and P.W.3 is the pillion rider of the motorbike and they categorically testified that the accused was the driver of the auto and he drove the same in a rash and negligent manner and caused the death of deceased and further caused injuries to P.Ws.1 to 3. The prosecution adduced cogent evidence before the trial Court and both the Courts below rightly convicted the accused, as such, the Criminal Revision Case is liable to be dismissed. 11. P.W.1 is no other than one of the passengers, who claimed to have travelled in the auto and he was the injured. P.W.2 is another passenger, who claimed to have travelled in the auto and he was also the injured. P.W.3 is the pillion rider of the motorbike, which was driven by the deceased. P.W.4 claimed to be an independent witness. 12. Now, coming to the evidence of P.W.1, he deposed that at about 1 ½ years prior to the date of his examination, on one day about 4 or 4-40 P.M., he boarded an auto driven by the accused at Nathavalasa to go to Vizianagaram and that the accused was driving the auto in high speed while crossing the school at Denkada and hit a Hero Honda Motorcycle coming in their opposite direction, that the driver of the motorcycle fell down on the road at a distance of 10 feet from the scene of offence and died instantaneously. He also deposed that the pillion rider also fell down and sustained injuries and that he received injuries to his left rib and left leg due to the accident. He also deposed that the pillion rider also fell down and sustained injuries and that he received injuries to his left rib and left leg due to the accident. One Dalinaidu (PW2) also received injuries and that they were shifted to the hospital. 13. P.W.2, the defacto-complainant, testified that on 16.06.2003 which fell on Monday at about 3-45 P.M., he boarded an auto A.P.35 T 5128 driven by the accused at Nathavalasa to reach Vizianagaram. He sat on the right side of the driver in the front seat of the auto. When their auto reached near the hospital at Denkada, due to negligent driving of the driver of the auto it hit against the motorcycle bearing No.AP 35 C 3374 which was coming in their opposite direction and that the motorcycle rider died on the spot. It is his further evidence that their auto was going on the right side of the road at the time of incident and that when the auto dashed against the motorcycle, the handle bar of the motorcycle hit him and that he received bleeding injuries to his right leg, his head and waist. P.W.1 who is travelling in the auto also received injuries. At that time, seven passengers including himself were travelling in the auto and the injured were shifted to hospital. At the hospital, the police came and recorded his Ex.P.1 statement. 14. The pillion rider of the motorcycle, who is P.W.3, testified that about 2 years prior to the date of his examination, the deceased who is an RMP doctor in Rellivalasa left for Vizianagaram along with himself for the purpose of purchasing medicine on his motorcycle. After purchase of medicine while they were returning on the said motorcycle at 4-30 P.M., an auto coming in their opposite direction hit against their vehicle. Then he fell down, received injuries and lost consciousness. He also deposed that the deceased received head injury and died on the spot. At the time of incident, the deceased was riding the vehicle at normal speed, but the auto driven by the accused came at high speed. They were shifted to Government Headquarters Hospital, Vizianagaram and from there, he was shifted to KGH, Visakhapatnam, for better treatment. 15. He also deposed that the deceased received head injury and died on the spot. At the time of incident, the deceased was riding the vehicle at normal speed, but the auto driven by the accused came at high speed. They were shifted to Government Headquarters Hospital, Vizianagaram and from there, he was shifted to KGH, Visakhapatnam, for better treatment. 15. P.W.4 deposed in substance that about 2 years ago at 4-00 P.M., while she was drawing water at the bore well situated at Mandal Office, Denkada, she heard some sound from the road. Then she rushed there and found a dead body and a motorcycle was lying on the road. She identified the dead body as that of Sheik Srinivasa Rao and informed the incident to his father over phone. She came to know that the auto hit the bike in a rash and negligent manner. 16. P.Ws.5 and 6 are the mediators for the scene observation report under Ex.P.2 and they deposed about the same. 17. P.W.7, inquest panchayatdar, supported the case of the prosecution with regard to the inquest under Ex.P.3. 18. P.W.8, the owner of the offending auto, testified that on the date of offence, accused was the driver of the auto bearing No.A.P.35 T 5138 and he informed him that he committed an accident near Chinthadivada Village. Then he gone there and found the dead body at the scene of offence. 19. P.W.9, the Medical Officer, spoken about the postmortem examination over the dead body and issuance of Ex.P.4. 20. P.W.10, Radiologist, deposed about taking of X-rays on P.W.3 and CT scan and testified that Ex.P.5 is the CT scan report and Ex.P.6 is X-ray report. He testified about the fracture injury received by P.W.3. 21. P.W.11 claimed that he examined P.Ws.1 to 3 and issued Exs.P.9 to P.11 wound certificates. The injuries received by P.Ws.1 and 2 are simple and the injuries received by P.W.3 are grievous in nature. 22. P.W.12 spoken about taking of photographs under Exs.P.12 to P.17 at the scene. 23. Prosecution examined P.W.13, who deposed that he examined the offending vehicle and issued Ex.P.18 opining that the accident is not occurred due to any mechanical defects. 24. 22. P.W.12 spoken about taking of photographs under Exs.P.12 to P.17 at the scene. 23. Prosecution examined P.W.13, who deposed that he examined the offending vehicle and issued Ex.P.18 opining that the accident is not occurred due to any mechanical defects. 24. P.W.14 is the Assistant Sub-Inspector of Police and he spoken that he came to know about the accident and injured were sent to the hospital and his going to the hospital and recording statement of one of the injured and further investigation. 25. P.W.15 is the successor of P.W.14, who obtained wound certificates and filed charge sheet. 26. Now, in deciding the point for determination, the first aspect that has to be looked into by this Court is as to whether the prosecution before the trial Court established the fact that the accused was driver of the offending vehicle at the time of accident. 27. P.Ws.1 and 2, the injured, who travelled in the auto and P.W.3, the pillion rider of the motorcycle, categorically testified that the accused was the driver of the offending vehicle. Even P.W.8, the owner of the vehicle, testified that accused was the driver of the auto at the time of accident. This fact is not in dispute throughout the trial. Accused did not challenge the testimony of P.Ws.1 to 3 and P.W.8 in this regard. So, the prosecution let in cogent evidence to prove the fact that the accused was the driver of the auto at the time of accident. 28. Now, another aspect that has to be considered by this Court is as to whether the prosecution has proved that in the accident the deceased died and P.Ws.1 and 2 received simple injuries and P.W.3 received grievous injuries. 29. As seen from the evidence of P.Ws.1 to 3, they spoken about the injuries received by them. Ex.P.1 is the statement of P.W.2, who is one of the injured and the evidence of P.W.2 has corroboration from Ex.P.1 statement as regards the death of deceased. P.W.8, the inquest panchayatdar, spoken about conducting of inquest by the police in the presence of mediators and his evidence has corroboration from Ex.P.3 inquest report. Ex.P.1 is the statement of P.W.2, who is one of the injured and the evidence of P.W.2 has corroboration from Ex.P.1 statement as regards the death of deceased. P.W.8, the inquest panchayatdar, spoken about conducting of inquest by the police in the presence of mediators and his evidence has corroboration from Ex.P.3 inquest report. Apart from this, P.W.9, the medical officer, spoken to the fact that he conducted postmortem examination over the dead body of the deceased and issued Ex.P.4, the postmortem report, opining that the death of deceased is due to haemorrhage and shock due to sudden ante mortem injuries to brain. Apart from this, there is evidence of P.W.11, the medical officer, who examined P.Ws.1 to 3 and issued Exs.P.9 to P.11. It means that P.Ws.1 and 2 received simple injuries and P.W.3 received grievous injuries. So, the above evidence goes to prove clearly that in the accident that was occurred on 16.06.2003, P.Ws.1 and 2 received simple injuries and P.W.3 received grievous injuries and the deceased died on account of multiple injuries received by him. 30. Now, another crucial aspect that has to be considered while deciding the point for determination is whether the evidence adduced by the prosecution proves beyond reasonable doubt that accused caused the death of deceased and further simple injuries to P.Ws.1 and 2 and grievous injuries to P.W.3 due to his rash and negligent act. 31. As already extracted the evidence of P.W.1 means that accused was driving the auto in high speed while crossing the school at Denkada and hit a motorcycle coming in their opposite direction. He spoken to the fact that he travelled in the auto. The pillion rider of the motorcycle received injuries and the deceased died at the spot. According to the evidence of P.W.2, he sat on the right side of the driver in the front seat of the auto and when their auto reached near the hospital at Denkada, accused negligently driven the same and hit against the motorcycle bearing No.A.P.35 C 3374, which was coming in opposite direction and the rider of the motorcycle died at the spot. He further testified that the auto was going on the right side of the road at the time of accident. He further testified that the auto was going on the right side of the road at the time of accident. When the auto dashed against the motorcycle, the handle bar of the motorcycle hit him, as such, he received bleeding injuries to his right leg, his head and waist. The pillion rider i.e., P.W.3 spoken to the fact that auto came in their opposite direction and hit against their vehicle and he fell down and received injuries and the deceased received head injury and died on the spot. 32. Now, admittedly, as evident from the cross examination of P.W.1, he deposed that he sat in the Baby seat, as such, there was no possibility for him to observe what was happened in front of the auto. It is to be noticed that though there is some discrepancies in the evidence of P.Ws.1 and 2 as regards actual numbers travelled in the auto, they cannot be a ground to reject the evidence of the prosecution witnesses. If the auto is of full of passengers only, there would have been an occasion for P.W.1 to sit in the Baby seat by facing towards back side of the auto. However, in my considered view, the inability of the prosecution to explain exactly how many persons travelled in the auto would not affect the testimony of P.Ws.1 to 3. Here P.W.2 claimed that he was sitting by the right side of the driver in the front seat of the auto. Apart from this, P.W.3 spoken about the manner of the accident. 33. Now, this Court would like to look into certain further answers elicited from the cross examination of P.Ws.1 and 2. Though P.W.1 stated that he was sitting on the Baby seat in the auto facing rear side of the auto, but, P.W.2 the material witness and author of Ex.P.1, deposed that on 16.06.2003 at 3-45 P.M., he boarded the auto of the accused and he sat on the right side of the driver in the front seat of the auto. Accused drove the auto in a rash and negligent manner and when it reached near the hospital at Denkada, he dashed the motorcycle in opposite direction. The auto was going in the right side of the road at that time. The auto dashed the motorcycle and handle bar of the motorcycle hit him. Accused drove the auto in a rash and negligent manner and when it reached near the hospital at Denkada, he dashed the motorcycle in opposite direction. The auto was going in the right side of the road at that time. The auto dashed the motorcycle and handle bar of the motorcycle hit him. In the cross examination also he stated that he sat on a stool placed on the right side of the steering of the auto. According to P.W.3, the pillion rider, the deceased was riding the vehicle in a normal speed and the auto came in high speed and dashed their vehicle in opposite direction. 34. At this juncture, it is pertinent to look into Ex.P.2, the observation report and Ex.P.20, rough sketch. It reveals that the road measures a width of 18 feet at the accident spot and it at 3 feet margin on either side. So, even according to the rough sketch, the deceased must proceed on his right side while coming from Vizianagaram and the accused was supposed to keep his auto on the left side of the road while proceeding in opposite direction. Accident was occurred in the middle of the road. P.Ws.2 and 3 made a version that the auto was going on the right side of the road and hit the motorcycle. Even as seen from the injuries received by P.W.2, they were on the right side of the body as per wound certificate marked under Ex.P.10. Apart from this, Exs.P.12 to P.17, Photographs, depicts that the right side front portion of auto was damaged and the dead body was lying on the left side of the road. So, it amply proves that the auto hit on the right side of the motorcycle. The place of accident was towards right side of the road. Accused was not supposed to drive the auto on the right side of the road while going to Vizianagaram and he was not supposed to hit the motorcycle, which was coming rightly in opposite direction. All these goes to show that the accused drove the offending auto in a rash and negligent manner and hit the opposite motorcycle. 35. It is to be noticed that though according to the evidence the speed of the auto was reduced at the place of accident spot, but speed cannot be taken as a criteria to decide rash and negligent act. 35. It is to be noticed that though according to the evidence the speed of the auto was reduced at the place of accident spot, but speed cannot be taken as a criteria to decide rash and negligent act. A person, who is going in high speed, may take proper care to avoid any rash and negligent act. A person, who was moving in slow speed, may drive the vehicle in rash and negligent manner. So, the accused has no business at all to hit the motorcycle moving on the left side of the road. It is not the case of the accused that all of sudden the motorcycle of the deceased came before the auto, as such, he hit the deceased. The defence of the accused with regard to the manner of accident is quietly evasive. In my considered view, the evidence on record cogently proves that the accused drove the auto in a rash and negligent manner and hit the opposite coming motorcycle, which resulted into death of the deceased and causing of simple injuries to P.Ws.1 and 2 and grievous injuries to P.W.3. 36. In my considered view, the learned Special Judicial Magistrate of First Class (Excise), Vizianagaram, rightly appreciated the evidence on record and further the learned I Additional District and Sessions Judge, Vizianagaram also rightly looked into the evidence on record and recorded cogent reasons in dismissing the criminal appeal. The sentence imposed against the petitioner is lesser on side when the offence under Section 304-A of I.P.C. contemplates the punishment as that of up to two years. 37. Having regard to the overall facts and circumstances, I see no reason to interfere with the judgment of the learned I Additional District and Sessions Judge, Vizianagaram, dated 24.06.2009 in Criminal Appeal No.140 of 2005. Accordingly, the Criminal Revision Case must fail. 38. In the result, the Criminal Revision Case is dismissed. 39. The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the order 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/accused in C.C. No.332 of 2004, dated 24.10.2005 and to report compliance to this Court. Consequently, miscellaneous applications pending, if any, shall stand closed.