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2024 DIGILAW 914 (AP)

Borada Ramana v. State Of A. P.

2024-08-01

V.SRINIVAS

body2024
ORDER : Assailing the judgment dated 11.04.2011 in Crl.A.No.166 of 2009 on the file of the Court of learned VIII Additional Sessions Judge at Visakhapatnam, confirming the conviction passed against the accused by the judgment dated 14.09.2009 in C.C.No.86 of 2008 on the file of the Court of learned Chief Metropolitan Magistrate at Visakhapatnam, for the offences under section 304-A and 337 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 18.04.2011 and the sentence of imprisonment imposed against the petitioner was suspended, vide orders in Crl.R.C.M.P.No.1376 of 2011. 3. The shorn of necessary facts are that: (i). On 18.11.2007, one Anapu Madhu (hereinafter referred to as ‘deceased’) along with P.W.1, P.Ws.3 to 5 and others, who were in Ayyappa Deeksha, proceeding from Adarshnagar towards N.H.5 road by foot on the left side of the road, with a view to go to Nookalamma temple for darshan, when they reached near Visakha Valley School Junction, the driver of the lorry bearing No.AP 31 TT 9589 (hereinafter referred to as “crime lorry”), drove the same in a rash and negligent manner at high speed, dashed them and rash over them. Resulted, the deceased died on the spot and other persons received injuries. (ii). Basing on Ex.P.1 report of P.W.1, P.W.11-S.I. of Police, Pothinamallayyapalem Police, Visakhapatnam registered a case in Cr.No.272 of 2001 for the offences under Section 304(A), 338 and 337 of IPC and investigated into. 4. After completion of investigation, police laid charge sheet and the same was numbered as C.C.No.86 of 2008 on the file of the Court of learned Chief Metropolitan Magistrate at Visakhapatnam, trial was conducted, found the accused guilty of the offences under Section 304-A, 338 and 337 of IPC, sentenced him to undergo rigorous imprisonment of one (1) year and to pay fine of Rs.10,000/-, in default to suffer simple imprisonment of two(2) months, sentenced to pay Rs.1,000/-, in default to suffer simple imprisonment of one(1) month and also sentenced him to pay Rs.500/-, in default to suffer simple imprisonment of one(1) month, for the respective offences. 5. 5. Aggrieved by the same, the petitioner preferred an appeal, vide Crl.A.No.166 of 2009, before the Court of learned VIII Additional Sessions Judge at Visakhapatnam and the same was allowed in part, vide judgment dated 11.04.2011, by setting aside the conviction and sentence passed by the trial Court for the offence under Section 338 of IPC and confirming the conviction for the offences under Section 304-A and 337 of IPC, however, reduced the sentence of imprisonment from one (1) year to six (6) months rigorous imprisonment for the offence under Section 304-A of IPC. 6. Against the said judgment of the first Appellate Court, the present criminal revision case was preferred by the petitioner/accused. 7. Heard Sri R.Siva Sai Swarup, 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 R.Siva Sai Swarup, learned counsel for the petitioner submits that the testimony of P.Ws.1 to 3 and 5 is highly interested and not reliable; that the prosecution failed to prove the ingredients to constitute the offences alleged against the petitioner; that P.W.4 failed to identify the petitioner as driver of the crime vehicle; that there is no rash and negligence on the part of the petitioner in causing the alleged incident; that the Trial Court as well Sessions Court failed to appreciate the material on record in a proper perspective, erroneously convicted the petitioner and the same is liable to be set aside. 10. 10. Against the same, Sri S.Dheera Kanishk, learned Special Assistant Public Prosecutor for the respondent-State submits that the testimony of P.Ws.1 to 3 and 5, who are injured persons, clearly goes to show that they sustained injuries in the incident and they identified the accused as driver of the crime lorry by the date of incident; that the prosecution got marked Ex.P.9 post mortem examination report of deceased through P.W.8, which shows the death of the deceased in the incident; that Exs.P.2 to P.8 would certificates of injured and testimony of P.Ws.6 and 7 shows the injuries sustained by P.Ws.1 to 5 in the incident; that the Courts below rightly appreciated the evidence of on record and convicted the petitioner for the said offences; that the prosecution proved the guilt of the accused beyond all reasonable doubt by examining P.Ws.1 to 11 and producing Exs.P.1 to P.13. 11. In view of the above rival contentions, this Court perused the material available on record. There is no dispute about involvement of the crime lorry in the accident as well death of the deceased person and injuries to P.Ws.1 to 5 in the incident. 12. The only contention raised by the petitioner is that he was not the driver of the crime vehicle on the date of alleged incident and there is no negligence on the part of the driver of the crime lorry in casing the incident. 13. In view of the above said contention, it is relevant to state the testimony of P.Ws.1 to 3 and 5, who are said to be injured eyewitness to the incident and they categorically testified that the accused was the person who driven the crime lorry in a rash and negligent manner and caused the incident. Even P.W.4, who is also said to be injured eyewitnesses, though not identified the accused as driver of the crime lorry, the testimony of other injured eyewitnesses i.e., P.Ws.1 to 3 and 5 is cogent and corroborating with each other. Nothing was elicited during cross examination to disbelieve their testimonies. The contents of Ex.P.1 report, which was submitted by P.W.1, is also corroborated to the testimony of prosecution witnesses. 14. Furthermore, the testimony of P.W.9 motor vehicle inspector as well as the Ex.P.10 report issued by him categorically shows that the accident occurred was not due to any mechanical defect of the crime vehicle. The contents of Ex.P.1 report, which was submitted by P.W.1, is also corroborated to the testimony of prosecution witnesses. 14. Furthermore, the testimony of P.W.9 motor vehicle inspector as well as the Ex.P.10 report issued by him categorically shows that the accident occurred was not due to any mechanical defect of the crime vehicle. Viewing from any angle, prosecution categorically proved the guilt of the accused for the said offences beyond all doubt. 15. 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 crime lorry in a rash and negligence manner, resulted death of one person and injuries to five persons. 16. 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. 17. 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. 18. However, while arguing the matter, learned counsel for the petitioner/accused submits that the accident had occurred on 18.11.2007 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 vs. 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. 19. 19. 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/-. 20. 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.” 21. 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.” 22. No doubt, in the present case also the incident was said to have happened on 18.11.2007 and by this time sixteen (16) years have already lapsed, but there was the loss of one human life and injuries sustained by five persons. 23. 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 one (1) year for the offence under Section 304-A of IPC. 24. 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 one (1) year for the offence under Section 304-A of IPC. 24. 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 rigorous imprisonment instead of six (6) months for the offence under Section 304-A of IPC. The rest of the judgment dated 11.04.2011 in Crl.A.No.166 of 2009 on the file of the Court of learned VIII Additional Sessions Judge at Visakhapatnam, 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 Chief Metropolitan Magistrate at Visakhapatnam 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.