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2024 DIGILAW 336 (AP)

Bandi Appana v. State of Andhra Pradesh

2024-03-07

V.SRINIVAS

body2024
JUDGMENT : V. SRINIVAS, J. 1. Assailing the judgment dated 01.12.2011 in Crl. Appeal No. 45 of 2010 on the file of the Court of learned Sessions Judge, Vizianagaram, confirming the conviction and sentence passed against the accused by the judgment dated 26.03.2010 in C.C. No. 46of 2009 on the file of the Court of learned Judicial Magistrate of First Class (Special Mobile), Vizianagaram, for the offences under section 304-A 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 07.12.2011 and the sentence of imprisonment imposed against the petitioner was suspended, vide orders in Crl. R.C.M.P. No. 3664 of 2011. 3. The shorn of necessary facts are that: (i) On 11.03.2008, one Thalada Malatchi (hereinafter referred to as “deceased”) went to Mopada Shandy and at about 04.00 p.m. while returning, he was proceeding towards Poosapatipalem, the accused drove the auto bearing No. AP 35 U 4904 in a rash and negligent manner without blowing horn and dashed the deceased from his backside. As a result, deceased fell on the road, sustained severe bleeding injuries on his right leg and head. Then PW-1, who is the son of deceased and present at the scene of offence, got shifted him to Government Hospital, Vizianagaram. While undergoing treatment, the deceased succumbed to injuries. (ii) Basing on the complaint of PW-1, PW-8 the then Head Constable, Poosapatirega Police Station, registered a case in Cr. No. 21 of 2008 under Section 304-A of IPC and investigated into. 4. After completion of investigation, the then S.I. of Police, Poosapatirega Police Station laid charge sheet and the same was numbered as C.C. No. 46 of 2009 on the file of the Court of learned Judicial Magistrate of First Class (Special Mobile), Vizianagaram and trial was conducted and found the accused guilty of the offence under Section 304-A 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) month, for the said offence. 5. Aggrieved by the same, the petitioner/accused preferred an appeal, vide Crl. 5. Aggrieved by the same, the petitioner/accused preferred an appeal, vide Crl. Appeal No. 45 of 2010, before the Court of learned Sessions Judge, Vizianagaram and the same was dismissed, vide judgment dated 01.12.2011, by confirming the conviction passed by the trial Court, but reduced the sentence of imprisonment from six (6) months to three (3) months. 6. Against the said judgment of the first Appellate Court, the present criminal revision case was preferred by the petitioner/accused. 7. Heard Sri Taddi Nageswara Rao, 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 Tadi Nageswara Rao, learned counsel for the petitioner submits that PWs. 1 to 4 are interested witnesses; that the prosecution failed to prove the ingredients to constitute the offence; that Ex.P.7 post mortem certificate cannot be relied upon as the doctor who conducted autopsy was not examined by the prosecution; that the accident occurred only due to negligence of the deceased, but not accused; that no identification parade was conducted to identify the accused as driver of the crime auto; 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 PWs. 1 and 2, who are eyewitnesses to the incident, testified about the negligent driving of the petitioner and they identified the accused as driver of the crime auto; that the testimony of PWs. 3 and 4 not challenged by the accused; that PW-5, who is present at the time of inquest under Ex.P.2, dated 12.03.2008, testified that the deceased died due to the injuries sustained by him in the incident and the same is not challenged by the accused; that the accused as the driver of the crime auto drove the same in a rash and negligent manner and caused death of the deceased; that the prosecution proved the guilt of the accused beyond all reasonable doubt by examining PWs. 1 to 8 and producing Exs.P.1 to P.7 and that the Courts below right appreciated the material on record and convicted the accused for the said offence. 11. In view of the above rival contentions, this Court perused the material available on record. PWs. 1 and 2 categorically deposed about the manner of the incident, rash and negligent driving of the driver of the crime auto that on 11.03.2008 at about 04.00 p.m. while the deceased crossing the road, the accused drove the crime auto in a rash and negligent manner without blowing horn and dashed the deceased. They even testified that the registration number of the crime auto as AP 35 U 4904. 12. PW-1 categorically testified that the accused was the driver of the crime auto by the time of incident. Nothing was elicited during the cross examination of PW-1 to disbelieve his testimony. His evidence is consistent and corroborative with the testimony of PW-2 and the prosecution version. 13. The contention of the accused is that no identification parade was conducted by the prosecution. In this aspect, it is relevant to make note of the judgment of Hon’ble Supreme Court in Rabindra Kumar Pal @ Dara Singh v. Republic of India, (2011) 2 SCC 490 wherein it was held that “the identification of the accused for the first time before the trial Court is admissible in evidence. When the eyewitness 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.” 14. In the present case on hand, PW-1, who is present at the scene of offence along with deceased, categorically testified that the accused was the driver of the crime auto by the time of incident. The testimony of PW-2 is fully corroborated with the testimony of PW-1. As such, the contention of the accused regarding identification as driver of the crime auto by the time of incident has no legs to stand. 15. Another contention raised by the accused is that the doctor who conducted autopsy over the dead body of the deceased was not examined by the prosecution, as such Ex.P.7 cannot be relied upon. However, the accused did not dispute while marking Ex.P.7 postmortem report through PW-8 investigating officer and that there is no dispute regarding the contents therein. 16. 15. Another contention raised by the accused is that the doctor who conducted autopsy over the dead body of the deceased was not examined by the prosecution, as such Ex.P.7 cannot be relied upon. However, the accused did not dispute while marking Ex.P.7 postmortem report through PW-8 investigating officer and that there is no dispute regarding the contents therein. 16. In this connection, it is relevant to refer to the testimony of PW-5. He categorically testified that he was present at the time of inquest over the dead body of the deceased under the cover of Ex.P.2 report, dated 12.03.2008 and all the mediators/panchayatdars opined that the deceased died due to the injuries sustained in the accident. The same is not particularly challenged by the accused by way of cross examination. 17. Furthermore, on perusal of Ex.P.7 post mortem report and testimony of PW-8, on the requisition made by PW-8, one M.Gopi Srikanth, Civil Assistant Surgeon, Government District Headquarters Hospital, Vizianagaram conducted postmortem examination over the dead body of the deceased and the cause of death is multiple fractures of ribs, fracture on leg bones and head injuries, resulting subdural hemorrhage, internal bleeding sin shock due to the above injuries. The Ex.P.7 report contains the signature and seal of the said Civil Assistant Surgeon and he categorically noted the injuries sustained by the deceased. 18. It is settled principle of law that the genuineness of any document filed by a party is not disputed by the opposite party, if the authenticity of the said document stands proved, shall be treated as valid and substantive evidence, under Sub Section (3) of Section 294 of Cr.P.C. In the present case on hand, the prosecution able to prove the death of the deceased in the road traffic accident by examining PWs. 1 to 5, 8 and producing Exs.P.2 and P.7. As such, this Court can rely upon Ex.P.7 postmortem report as substantive piece of evidence and come to conclusion that the deceased died due to the injuries sustained by him in the incident caused by the petitioner due to rash and negligent driving of the crime auto. 19. 1 to 5, 8 and producing Exs.P.2 and P.7. As such, this Court can rely upon Ex.P.7 postmortem report as substantive piece of evidence and come to conclusion that the deceased died due to the injuries sustained by him in the incident caused by the petitioner due to rash and negligent driving of the crime auto. 19. 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 auto in a rash and negligence manner without blowing horn and dashed the deceased, as a result deceased succumbed to injuries. 20. 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. 21. 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 offence. 22. However, while arguing the matter, learned counsel for the petitioner/accused submits that the accident was occurred on 11.03.2008, the petitioner is having wife, children and old aged parents and all of them are depending on him and there are mitigating circumstances to reduce the sentence imposed against the petitioner 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), AIR 1977 SC 892 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. 23. 23. He also brought to the notice of this Court another judgment of Hon’ble Supreme Court reported in Jagdish Chander v. State of Delhi, AIR 1973 SC 2127 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/-. 24. 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 Karnataka, (2008) 8 SCC 225 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 not a case of driving in an inebriated condition. Having regard to all these facts, a lenient view can be taken in the matter and the sentence of imprisonment can be reduced.” 25. Even in Nagaraj v. Union of India, 2019 (1) ALT (Crl.) 209 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 offence 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.” 26. As well in Mohinder Singh v. State of Haryana, 2019 (3) Crimes 89 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.” 27. No doubt, in the present case also the incident was said to have happened on 11.03.2008 and by this time sixteen (16) years have already been lapsed, but there was a loss of one human life. 28. 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 one (1) month from three (3) months for the offence under Section 304-A of IPC. 29. In the result, the Criminal Revision Case is allowed in part, modifying the sentence of imprisonment imposed against the petitioner/accused to that of one (1) month simple imprisonment instead of three (3) months for the offence under Section 304-A of IPC. The rest of the judgment dated 01.12.2011 in Crl. Appeal No. 45 of 2010 on the file of the Court of learned Sessions Judge, Vizianagaram, shall stands 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 Judicial Magistrate of First Class (Special Mobile), Vizianagaram, to serve the remaining sentence, if not, the learned Magistrate concerned shall take steps against the petitioner. 30. Interim orders granted earlier if any, stand vacated. 31. As a sequel, miscellaneous applications pending, if any, shall stand closed.