THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CRIMINAL REVISION CASE No.296 of 2010
ORDER:
This Criminal Revision Case is filed against the Judgment passed by the learned III-Additional Sessions Judge (FTC), Asifabad dated 10.01.2010 in Crl.A.No.1 of 2010, confirming the Judgment of the learned First Class Judicial Magistrate, Asifabad dated 10.12.2009 in C.C.No.451 of 2004.
2. Initially, C.C.No.451 of 2004 was filed against the revision petitioner/accused for the offence punishable under Sections 337, 338 and 304-A of IPC, for causing death of deceased No.1 & 2 and also causing injuries to inmates of auto.
3. The brief facts of the case are that on 27.09.2004, P.W.1 lodged a complaint against the accused stating that he along with his daughter and Grand-son aged about 1½ year boarded an auto bearing No. AP 10 BH T/R 5117 at Madaram and proceeding towards Bellampalli. While they were proceeding to Bellampalli, the driver of the auto driven the auto in rash and negligent manner with a high speed and dashed to a Neem tree by losing control over the auto. As a result of which, the auto 2 was damaged and deceased No.1 died on the spot and deceased No.2 died after 10 days while undergoing treatment and all other inmates of the auto were injured. The complaint was given against the driver of the auto namely Mallesh. Based on the complaint a case was registered in Cr.No.65 of 2004 under Section 337, 338 and 304-A of IPC.
4. In order to prove the guilt of the accused, the prosecution examined P.Ws.1 to 14 and marked Exs.P1 to P16.
5. The trial Court considering the oral evidence of witnesses and also the Exs.P1 to P16 convicted the accused by imposing Simple imprisonment for a period of six months for the offence punishable under Section 304-A of IPC. Further, to pay a fine of Rs.1,000/- for the offence under Section 338 of IPC, in default to suffer Simple imprisonment for the period of three months and also to pay a fine of Rs.500/- for the offence under Section 337 of IPC, in default to suffer Simple imprisonment for a period of one month. Aggrieved by the said Judgment, the accused preferred an appeal before the first appellate Court. The first appellate Court held that P.W.1 identified the accused as the driver of the auto before the Court, as such there is no necessity of conducting Test Identification parade and the defacto- 3 complainant was semi-conscious after the accident. The first appellate Court also held that the accused was driving the auto on National Highway, but turned to the left side of the road and dashed the Neem tree, as a result of which two inmates were died. Merely because he did not sustain injury, it cannot be said that he was driving the auto with a low speed. The P.Ws.5,6 & 8 are the injured witnesses. All of them stated that accident was occurred due to rash and negligent driving of the auto driver. They also stated that in spite of their instructions, driver had driven the auto in a rash manner and lost control over the auto and dashed to Neem tree. They also stated that though it was a rainy season, there was no rain as on the date of accident and the auto was not overloaded. Accident was occurred at a distance of 125 yards from the Kannala gate on the National Highway and there is no other vehicle seen over the rough sketch, as such it cannot be said that he turned the vehicle to avert any major accident.
6. The defence of the accused is that he was driving the auto very slowly, but the trial Court did not believe his version as the several persons were injured when the auto dashed the Neem tree. In this case, the name of the accused was mentioned in the F.I.R and he was identified by the injured persons during the 4 trial. Therefore, the appellate Court also confirmed the Judgment of the trial court in Toto.
7. The learned Counsel for the revision petitioner/accused relied upon the decision of the Hon'ble Supreme Court in the case of Bhalachandra Waman Pathe Vs. State of Maharashtra1 dated 20.11.1967 1967, in which it was held as follows:
....The severity of the sentence must depend to a great extent on the degree of callousness in the conduct of the accused.
.... Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precausion to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. Negligence is an omission to do soemthig which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which prudent and reasonable man would not do.
8. The learned Counsel for the petitioner/accused argued that for the offence under Section 304-A of IPC, the sentence of imprisonment is not must. Therefore, requested the Court to modify the said Judgment and to impose the fine amount. He 1 Law Suit (SC) 311 5 also relied upon the decision of the Hon'ble Supreme Court in the case of Mohanta Lal Saha Vs. State of West Bengal2 dated 21.03.1968.
9. Admittedly, the accused is an auto driver. The accident was occurred due to his rash and negligent driving and all the inmates had sustained injuries. Ex.P4 to P9 are the wound certificates and Ex.P10 is the PME report of the deceased who died in the accident. Admittedly, accident was occurred on 27.09.2004. The conviction was imposed by the trial Court in the year 2009 and it was confirmed by the first appellate Court in the year 2010. From then onwards it was pending before this Court for about 13 years. No doubt, under Section 304-A, the sentence is not mandatory. Either the fine or imprisonment is mandatory or both of them can be imposed. Considering the gravity of the offence, both the Courts concurrently found accused guilty for the offence under Section 304-A, 337 & 338 of IPC. This Court finds it just and reasonable to modify the sentence of imprisonment imposed against the accused from six months to three months for the offence punishable under Section 304-A of IPC and further to pay a fine of Rs.5,000/- for the offence under Section 338 of IPC and also to pay a fine of 2 1968 LawSuit (SC) 72 6 Rs.5,000/- (Total fine amount of Rs.10,000/-) for the offence under Section 337 of IPC, in default to suffer Simple imprisonment for the period of 15 days on each count. The remand period, if any, shall be set off under Section 428 of Cr.P.C.
10. In the result, the present Criminal Revision Case is partly allowed upholding the conviction passed by the first appellate Court, but the sentence of imprisonment imposed against the revision petitioner/accused is reduced from six months to three months for the offence punishable under Section 304-A IPC and further to pay a fine of Rs.5,000/- for the offence under Section 338 of IPC and also to pay a fine of Rs.5,000/-(Total fine of Rs.10,000/-) for the offence under Section 337 of IPC, in default to suffer simple imprisonment for 15 days on each count. The remand period, if any, shall be set of under Section 428 of Cr.P.C.
Miscellaneous petitions pending, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA DATED: 06.04.2023 tri 7 THE HONOURABLE SMT. JUSTICE P.SREE SUDHA CRIMINAL REVISION CASE No. 296 of 2010 DATED: 06.04.2023 TRI