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Judgment
V Srinivas, J
Assailing the judgment dated 08.07.2010 in Crl.A.No.111 of 2010 on the file of the Court of learned Additional Sessions Judge-cum-Family Court at Guntur, confirming the conviction and sentence passed against the accused by the judgment dated 02.03.2010 in C.C.No.401 of 2004 on the file of the Court of learned I Additional Judicial Magistrate of First Class at Sattenapalli, 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.
The revision case was admitted on 09.07.2010 and the sentence imposed against the petitioner was suspended, vide orders in Crl.R.C.M.P.No.1827 of 2010.
The shorn of necessary facts are that:
i). On 09.01.2004 at about 05.30 p.m., the accused being driver of the Auto bearing Registration No.AP 7V 5418 driven the same in rash and negligent manner at high speed with twenty-two (22) passengers and when they reached outskirts of Abburu Village, the front tyre of the said auto feel into a deep pit, resulted the passengers in the auto received multiple injuries. Then, they were shifted to Government Hospital at Sattenapalli. Out of the injured persons, while undergoing treatment, one Sugunamma died on 18.01.2004.
ii). Basing on the statement of P.W.1, the Head Constable of Sattenapalli Rural Police Station registered a case in Cr.No.3 of 2004 under Section 337 of IPC and investigated into and later on receipt of death intimation of the deceased Sugunamma added Section 304-A IPC.
After completion of investigation, P.W.11-S.I. of Police laid charge sheet and the same was numbered as C.C.No.401 of 2004 on the file of the Court of learned I Additional Judicial Magistrate of First Class at Sattenapalli, after full-fledged trial found the accused guilty of the offences under Section 304-A, 337 of IPC and Rule 32(iii) r/w. Section 177 of Motor Vehicle Act and sentenced to undergo simple imprisonment for a period of two (2) years, three (3) months and also sentenced to pay a fine of Rs.100/-, in default to suffer simple imprisonment of one (1) month for the respective offences and all the sentences shall run concurrently.
Aggrieved by the same, the petitioner/accused preferred an appeal, vide Crl.A.No.111 of 2010, before the Court of learned Additional Sessions Judge-cum-Family Court at Guntur and the same was partly allowed by confirming the conviction and sentence passed by the trial Court for the offences under Section 304(A) and 337 of IPC, while setting aside the conviction and sentence under Rule 32(iii) r/w.177 of the Motor Vehicles Act.
Against the said judgment of the first Appellate Court, the present criminal revision case was preferred by the petitioner/accused.
Heard Sri Posani Venkateswarlu, learned Senior Counsel appearing on behalf of Sri P.Sai Surya Teja, learned counsel for the petitioner/accused and Sri S.Dheera Kanishk, learned Special Assistant Public Prosecutor for the respondent-State.
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?”
Sri Posani Venkateswarlu, learned Senior Counsel appearing for the petitioner/accused submits that even as per the prosecution version the incident occurred when the tyre of the auto fell into a deep ditch, thereby, no negligence can be attributed against the accused in causing the incident; that except injured persons, no direct witness was examined by the prosecution to prove the incident; that there is no legal and reliable evidence placed on record by the prosecution before the Courts below to make believe that prosecution proved the guilt of the accused for the offences under Section 304-A and 337 of IPC; that the non-examination of the medical officer, who conducted the post mortem examination of the deceased, is fatal to the case of the prosecution; that both the Courts below failed to appreciate the evidence on record in proper perspective, erroneously convicted the petitioner and the same is liable to be set aside.
Per contra, Sri S.Dheera Kanishk, learned counsel attached to the office of State Public Prosecutor for the respondent submits that the testimony of P.Ws.1 to 7, who are injured eye witnesses to the incident, shows the negligence on the part of the accused in causing the incident; that the testimony of P.W.9 medical officer, who treated the injured, shows the injuries sustained by them in the incident; that P.W.10 Motor Vehicle Inspector certified under Ex.P.17 that the incident occurred was not due to any mechanical defect of the vehicle; that the prosecution established the guilt of the accused for the said offences beyond all reasonable doubt by examining P.Ws.1 to 10 and producing Exs.P.1 to P.24, thereby, the present revision has no merits.
In view of the above rival contentions, this Court perused the material available on record. It is not in dispute about the injuries sustained by P.Ws.1 to 7, others as well death of the deceased in the incident. It is also not in dispute about the identity of the accused as driver of the crime auto by the date of incident.
It is the categorical testimony of P.W.1, who is said to be injured eyewitness, that after completion of coolie work, on 09.01.2002 at about 05.30 p.m., she along with others, total twenty-two in number, boarded the auto of the accused to go to Abburu Village and they requested the accused to drive the vehicle slowly. But, the accused had driven the same in a rash and negligent manner, due to which the front tyre of the auto fell into a deep ditch and turned turtle. Resulted, she received bleeding injury on her head and one Sugunamma died on the spot and nearly eighteen person received injuries. They were shifted to Government Hospital, Sattenapalli for treatment. She gave Ex.P.1 statement to police.
The testimony of P.W.1 is fully corroborated with the testimony of P.Ws.2 to 7, who are also injured eyewitnesses to the incident. Nothing incriminating was elicited during cross examination to disbelieve their testimony.
It is the main contention of the learned counsel for the petitioner that the accident occurred only when the tyre of the auto fell into the pit, but not due to rash and negligent driving of the accused. But, in view of the categorical testimony of P.W.1 to 7, by the time of incident, the driver of the auto drove the same in a rash and negligent manner without considering their request to drive the same slowly, thereby, caused the incident, as such, the said contention raised by the petitioner has no legs to stand. More so, it is the duty of the driver of auto to look into road condition. But, nowhere it is placed on record to say that the driver of the crime vehicle taken care while driving the auto when the road is in condition of full of ditches and he ought to have taken care of road condition, but fact remains, he did not think of the road condition nor caution made by the passengers, who are P.Ws.1 to 7. Furthermore, as per the testimony of P.W.10 Motor Vehicle Inspect, the accident which occurred was not due to any mechanical defect of the vehicle under Ex.P.17 report.
Be that it may, on perusal of the evidence of P.Ws.1 to 7, it is suggested to them that the injured as well deceased received injuries while travelling in a tractor and as the tractor driver has no driving license, the auto was implicated in this case. But, for the fact remains that, no positive evidence placed on record to that defence when suggested to the witnesses.
Further on perusal of testimony of P.W.10 medical officer, he treated the injured after the incident and issued Exs.P.4 to P.16 wound certificates of injured, which proves the injuries sustained by the passengers in the incident. Even on perusal of Ex.P.24 postmortem report of deceased Sugunamma the cause of death of the deceased was due to multiple injuries, which is not in dispute.
It is settled law as observed by the Hon’ble Supreme Court in State of Maharashtra v. Jagmohan Singh Kuldip Sing Anand (2004) 7 SCC 659, that “in exercise of revisional powers, this Court need not undertaken in-depth and minutest reexamination of entire evidence, when there is no error in the findings arrived by the Trial Court as well first Appellate Court”.
By taking into consideration of above evidence of P.Ws.1 to 11 and Exs.P.1 to P.24, the trial Court came to conclusion that prosecution proved the guilt of the accused for the offences under Section 304-A and 337 of IPC, which was affirmed by the first Appellate Court.
It is settled law that in view of the concurrent findings on facts by the Courts below, 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 the Court below. There is no material before this Court to discard the trustworthiness of P.Ws.1 to 7, 9 to 11 and there is no material to disbelieve the contents of Exs.P.1 to P.24.
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 Courts below 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 offences under Section 304-A and 337 of IPC.
However, while arguing the matter, learned counsel for the petitioner/accused submits that the accident was occurred on 09.01.2004 and there are mitigating circumstances to reduce the sentence imposed against the petitioner by the Courts below. He brought to the notice of this Court a judgment of the Hon’ble Supreme Court 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.
He also brought to the notice of this Court another judgment of Hon’ble Supreme Court 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/-.
In this connection, it is relevant to make a mention a pronouncement of the Hon’ble Supreme Court in 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 the all these facts, a lenient view can be taken in the matter and the sentence of imprisonment can be reduced.”
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.”
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.”
No doubt, in the present case also the incident was said to be happened on 09.01.2004 and by this time eighteen (20) years have already been lapsed, but there was a loss of one human life and injuries sustained by twenty persons.
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 year from two (2) years for the offence under Section 304-A of IPC.
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 year simple imprisonment instead of two (2) years for the offence under Section 304-A IPC only and the rest of the judgment dated 08.07.2010 in Crl.A.No.111 of 2010 on the file of the Court of learned Additional Sessions Judge-cum-Family Court at Guntur, 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 learned I Additional Judicial Magistrate of First Class at Sattenapalli forthwith, 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.