1 RRN,J
Crl. RC.No.522 of 2016
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
CRIMINAL REVISION CASE No.522 OF 2016
JUDGMENT:
This Criminal Revision Case is directed against the judgment dt.20.10.2014 in C.C No.203 of 2005 of the learned Judicial Magistrate of First Class, Madhira, wherein the revision petitioner was convicted and sentenced to imprisonment for 2 years with a fine of Rs.5,000/-, in default, simple imprisonment for six months for the offence under Section 304A of Indian Penal Code. He is further sentenced to pay a fine amount of Rs.500/- for the offence under Section 3 read with Section 181 of the Motor Vehicles Act, in default, simple imprisonment for one month. Since, accused No.1/revision petitioner is convicted under Section 304-A IPC, he need not be separately convicted for the offences under Section 337 and 338 IPC since the act of accused No.1 is single in view of Section 71 of IPC.
Aggrieved by the said judgment, the revision petitioner/accused No.1 preferred an appeal before the learned Principal Sessions Judge, Khammam, in Crl. Appeal No.165 of 2014 dt.03.02.2016 and the appellate Court has confirmed the 2 RRN,J Crl. RC.No.522 of 2016 conviction for the offence under Section 304A IPC, however, modified the sentence of imprisonment from two years to one and half years, and the fine imposed for the offences under Section 304A IPC and under Section 3 read with Section 181 of the Motor Vehicles Act are confirmed. Hence, the present revision.
2. The case of the prosecution is as follows:
On 11.03.2004 at 11.30 hours, the de facto complainant Annepogu VIjayamma (PW1) lodged a complaint before the police Bonakal stating that she is mason by profession and she engaged coolie workers and on the fatal day of accident, at about 09.30 hours, she along with her villagers, viz. (PWs.2 to 18, 25 and Annepogu Ratnakumari (LW6) and Deceased Nos. 1 to 3 were proceeding to the Chilli Garden of Boinapalli Suryanaraya of Choppakatlapalem for plucking the Chillies. In the meanwhile, A1 allowed the above said coolies to sit in the Tractor bearing No.AP-20/F-8339/Trolley bearing No.AP-20/U-6940 owned by A2, and were proceeding towards Choppakatlapalem. On the way, the driver of Tractor/A1, drove the said tractor in a rash and negligent manner and when reached near Shakamuri Ravikumar's mango garden near a turning, the trailer de-linked 3 RRN,J Crl. RC.No.522 of 2016 from the tractor and turned turtle and fell into a trench, as a result, the occupants, who sat on the trolley, received injuries. Immediately, they were shifted to Primary Health Centre, Bonakal, and some others were shifted to Government Hospital, Khammam, for treatment. While undergoing treatment, Marikanti Suvartha/deceased No.1 died of injuries at the said Hospital. The driver absconded along with tractor.
3. On a complaint, a case under Sections 304A, 337 and 338 of IPC was registered against the driver of the Tractor in Cr.No.18 of 2004. During the course of investigation, two other injured succumbed to the injuries while undergoing treatment.
4. The prosecution to prove its case examined PWs 1 to 39 and got marked Ex.P1 to P37. On behalf of the accused, no oral was adduced, however, Ex.D1 to D4 were marked. Upon consideration of the evidence on record, the trial Court found the accused No.1 as stated supra. Aggrieved by the said judgment, the revision petitioner/accused preferred an appeal before the appellate Court vide Crl. Appeal No.165 of 2014 and the Appellate Court vide its judgment dt.03.02.2016 modified the 4 RRN,J Crl. RC.No.522 of 2016 sentence passed by the trial Court from two years to one-and-half years as stated supra.
5. Heard the learned Counsel for the revision petitioner/accused and the learned Assistant Public Prosecutor for the respondent/State and perused the material available on record.
6. Learned Counsel for the revision petitioner/accused No.1 has contended that as the Motor Vehicle Inspector, who is the author of Ex.P37/MVI report, was not examined by the prosecution, prejudice is caused to the petitioner as cross- examination could not be conducted to prove his innocence, owing to the mechanical defect of the tractor and trailer, yet both Courts below relied upon Ex.P37 and came to the conclusion that there was no mechanical defect. She further contended that the tragic incident occurred due to bad condition of the road having pits despite the petitioner drove the tractor - trailer in a cautious manner. She further contended that the finding recorded by the Courts below that the petitioner was not having valid licence, is unsustainable as neither documentary nor oral evidence was 5 RRN,J Crl. RC.No.522 of 2016 adduced to that effect, more particularly, Motor Vehicle Inspector was not examined. Hence, prayed to allow the Revision.
7. On the other hand, learned Assistant Public Prosecutor contended that the petitioner/accused drove the tractor-trailer in a rash and negligent manner, which resulted in the death of three persons and injuries to victims and the petitioner/accused did not dispute regarding the occurrence of the incident and that he escaped from the scene of offence along with his tractor, which proves his guilt. She further contended that the Appellate Court by taking into consideration the material available on record, rightly rendered its judgment by modifying the sentence of the trial Court, and no interference is required by this Court. Accordingly, prayed to dismiss the revision.
8. Now, the point for consideration is:
Whether the death of deceased No. 1-3 and injuries of the remaining coolies travelling in the Tractor- Trailer driven by the petitioner/accused is on account of rash and negligent driving by the petitioner/accused?
9. A perusal of the record goes to show that the petitioner/accused did not deny the said accident. However, with regard to his identity though he disputed the same, there is no 6 RRN,J Crl. RC.No.522 of 2016 substantial evidence to disprove the same, except the suggestions in the cross-examination of the injured witnesses. The Trial Court based on the Ex-P10 to Ex-P31 and Ex.P36 which are Inquest panchnamas of deceased, wound certificates of injured and post mortem reports of the deceased, and the oral evidence, which is not disputed by the revision petitioner/accused No.1, found that he drove the tractor-trailer which involved in the said accident resulting in death of deceased No.1 to 3 and injuries to other witnesses. There is no material placed or resistance shown by the revision petitioner/accused No.1 with regard to the above.
10. However, it is necessary that the matter is to be viewed and decided whether the accident leading to death and injuries to the coolies, was due to rash and negligent driving of the petitioner/accused. To prove the same, the prosecution got examined PWs.2 to 18, 25 and (LW6) who were the persons travelling in the tractor-trailer along with the deceased No.1-3. All of them deposed that the petitioner/accused drove the vehicle at a high speed and in a rash and negligent manner which resulted in delinking the trailer from the tractor and turned turtle, which led to the tragic incident. The prosecution got marked Ex-P37 M.V.I report which was authored by the Motor Vehicles Inspector, 7 RRN,J Crl. RC.No.522 of 2016 Wyra, and he opined that it was the petitioner/accused who drove the said vehicle and there was no mechanical defect. The trial Court in view of the above, observed as follows:
"m) ...... Ex.p.35 is the crime detail form marked through investigation officer, as seen from the same, there was a turning at the scene of offence. While vehicle taking turn, the driver must be very cautious, that too when some people boarded on it, though the witnesses to the crime detail form not supported the case of the prosecution, the accused No.1 not denied the contents of CDF and it is not the case of accused No.1 there is no such turning. Of course learned defence counsel has elicited that there are pits on the road, as such there is no scope of driving tractor speedily. Except suggesting the same to prosecution witnesses A.1 has not stated the same anywhere. Further even let us presume for a moment that there are pits on the road, the driver i.e.,A.1 is expected to drive very cautiously on the pits on the road and near a turning."
11. A careful reading of the above observation of the trial Court which was confirmed by the Appellate Court would reveal that the Courts below came to a conclusion that the revision petitioner/accused No.1 drove the said vehicle in a rash and negligent manner at a high speed based on the crime details form which depicted that the accident occurred at a turning and also on the oral evidence of all injured witnesses. Apart from this, there is no evidence to prove that the said vehicle was driven at a high speed. The trial Court despite observing that the defence Counsel elicited that there were pits on the road, found that the vehicle was driven rashly and negligently without caution. The Courts below failed to observe that nowhere in the record has the 8 RRN,J Crl. RC.No.522 of 2016 approximate speed at which the vehicle was being driven, is elicited by the prosecution so as to the trailer get de-linked and turned turtle. The aspect of weight distribution of the victims on the trailer causing it to turn turtle was also not elicited either by the prosecution or the revision petitioner/accused No.1 which gives a reasonable doubt in favour of the petitioner/accused. Hence, the benefit of doubt must go to the revision petitioner/accused No.1.
12. The further basis of conviction of the petitioner/accused is in light of Ex.P37/MVI report. The counsel for the petitioner vehemently argued that the non-examination of the Motor Vehicles Inspector, Wyra, is fatal to the defence as he is the author of Ex.P37 and a chance to cross-examine him to elicit truth did not take place. The Appellate Court observed that the non-examination is not fatal to the case as the stand of the petitioner/accused is not that the accident occurred due to mechanical defect as the same can be seen from the tenor of the cross-examination of the prosecution witnesses. This is not viable as the defence tends to pose questions to the prosecution witnesses as necessary, to elicit the truth, whereas when the author of Ex.P37 was not examined, the defence could not have 9 RRN,J Crl. RC.No.522 of 2016 suggested questions to other witnesses to prove their contention. Hence, the finding of the Courts below that the non-examination of the Motor Vehicles Inspector is not fatal to the case, is erroneous. No accused shall suffer due to the inadequate defence taken by him. It is the Courts' duty to peruse the material on record and the aspects which are absent, before coming to a conclusion vis-ā-vis the guilt of the accused.
13. At this juncture, this Court has no hesitation in concluding that the prosecution failed to bring home the guilt of the revision petitioner/accused No.1 beyond all reasonable doubt for the offence punishable under section 304A of IPC and deserves to be acquitted of the said charge.
14. With regard to the conviction under Section 3 read with 181 of the Motor Vehicles Act, that the revision petitioner/accused No.1 was driving the vehicle without licence and a perusal of the record shows that the revision petitioner/accused No.1 failed to produce any evidence proving that he has an authorized driving licence. The counsel for the revision petitioner contended that neither documentary nor oral evidence was adduced by the prosecution to prove that the 10 RRN,J Crl. RC.No.522 of 2016 revision petitioner was not licensed. This plea cannot be accepted as there is no assertion or evidence on behalf of the revision petitioner/accused No.1 that he does have a valid driving license. As such, the conviction and sentence passed by the Courts below with regard to Section 3 read with 181 of the Motor Vehicles Act against the revision petitioner/accused No.1, is justified.
15. In the result, the Criminal Revision Case is partly allowed and the conviction and sentence imposed on the revision petitioner/accused No.1 by the learned Principal Sessions Judge, Khammam, in Crl. Appeal No.165 of 2014 dt.03.02.2016, confirming the conviction and modifying the sentence of imprisonment from two years to one-and-half years for the offence punishable under Section 304A of Indian Penal Code imposed, is set aside and he is acquitted of the charged offence and the fine amount, if any, paid by the revision petitioner/accused No.1 shall be returned to him. However, the fine amount of Rs.500/- imposed against the revision petitioner/accused No.1 by the Courts below for the offence under Section 3 read with 181 of the Motor Vehicles Act, is hereby confirmed.
11 RRN,J
Crl. RC.No.522 of 2016
Since the revision petitioner/accused is on bail, his bail bonds shall stand cancelled.
As a sequel, pending miscellaneous applications, if any shall stand closed.
_____________________________________ NAMAVARAPU RAJESHWAR RAO,J 14th day of February, 2023 BDR