This Criminal Revision Case Is ... vs Unknown
2022 Latest Caselaw 9752 AP

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     THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

         CRIMINAL REVISION CASE NO.1587 OF 2008

ORDER:-

      This Criminal Revision Case is filed by the petitioner, who

is appellant in Criminal Appeal No.123 of 2007, on the file of the

Metropolitan Sessions Judge-cum-I Additional District & Sessions

Judge,      Visakhapatnam,     challenging   the   judgment,   dated

13.10.2008

, whereunder the learned Metropolitan Sessions

Judge-cum-I Additional District & Sessions Judge,

Visakhapatnam, dismissed the Criminal Appeal filed by the

appellant by confirming the judgment of the trial Court in

C.C.No.235 of 2005 wherein the accused was convicted for the

offences under Sections 304-A and 338 of Indian Penal Code

("I.P.C." for short) and he was sentenced to suffer simple

imprisonment for six months for the offence under Section 304-

A of I.P.C. and three months for the offence under Section 338

of I.P.C.

2) The parties to this Criminal Revision Case will

hereinafter be referred to as described before the trial Court for

the sake of the convenience.

3) The case of the prosecution, in brief, is that accused

is the driver of R.T.C. bus bearing No.A.P.11 Z 3329 at the time

of occurrence. The incident took place on 02.03.2005 at 3-20

P.M. on the road near RCL Company, Visakhapatnam. L.W.1-

Somavaripati Sashikumar is the defacto-complainant-cum-

injured. On 02.03.2005 he along with the deceased were

proceeding on Bajaj Pulsar motorcycle bearing No.A.P. 31 AG

3802 from Gajuwaka to Autonagar. He was the rider and the

deceased was the pillion rider and they reached near "Y"

junction, RCL Bridge at 3-20 P.M. The accused as driver of RTC

bus bearing No.A.P.11 Z 3329 came in a rash and negligent

manner at high speed and dashed the motorbike of the L.W.1,

for which they fell down. L.W.1 was shifted to Seven Hills

hospital. The deceased was expired at the time of shifting to

hospital. L.W.14-Sub Inspector of Police recorded the statement

of L.W.1 and registered it as a case and took up investigation.

During the investigation, he visited the scene. He arrested the

accused and after completion of investigation, he filed charge

sheet.

4) The learned Chief Metropolitan Magistrate,

Visakhapatnam, took cognizance under Sections 304-A and 338

of I.P.C. and after furnishing copies of documents, examined the

accused under Section 251 of Cr.P.C. as regards the allegations

in the charge sheet and explained to him in Telugu for which he

pleaded not guilty and claimed to be tried.

5) During the course of trial before the trial Court, on

behalf of the prosecution, P.Ws.1 to 9 were examined and

Exs.P.1 to P.9 were marked. After the closure of the evidence of

the prosecution, accused was examined under Section 313

Cr.P.C. with reference to the incriminating circumstances in the

evidence adduced by the prosecution, for which he denied the

same and that he has defence witnesses and in support of his

defence, accused got examined D.W.1, who was the Conductor

of the offending vehicle.

6) The learned Chief Metropolitan Magistrate,

Visakhapatnam, on hearing both sides and on considering the

evidence on record, found the accused guilty of the charges

under Sections 304-A and 338 of I.P.C. and after questioning

him about the quantum of sentence, sentenced him to suffer

simple imprisonment for six months for the offence under

Section 304-A of I.P.C. and three months for the offence under

Section 338 of I.P.C. The accused challenged the judgment of

the trial Court in Criminal Appeal No.123 of 2007 before the

Metropolitan Sessions Judge, Visakhapatnam and the learned

Metropolitan Sessions Judge, Visakhapatnam, dismissed the

Criminal Appeal on merits. Aggrieved by the same, the

unsuccessful accused and appellant as above, before the Courts

below filed this Criminal Revision Case.

7) Now, in deciding the present Criminal Revision Case,

the point that arises for consideration is whether the judgment

of the learned Metropolitan Sessions Judge, Visakhapatnam in

Criminal Appeal No.123 of 2007 suffers with any illegality,

irregularity and impropriety and whether there are any grounds

to interfere with the judgment of the learned Metropolitan

Sessions Judge, Visakhapatnam?

Point:-

8) The learned counsel for the Revision Petitioner would

contend that the case of the prosecution is that the RTC bus

being driven by the petitioner dashed the motorbike and that

P.W.1 and P.W.3 suffered injuries and the deceased died.

According to Ex.P.7, Motor Vehicles Report, motorcycle had no

report on the backside and only the right side handle bar and

speedometer was damaged. There was no damage to the bus.

So, it is highly improbable to assume that the incident was

occurred as alleged by the prosecution. The prosecution case is

doubtful. P.Ws.1 and 3 did not identify the petitioner as the

driver. No documentary proof was filed by the prosecution.

According to D.W.1, no accident was occurred. Hence, the

petitioner is not responsible for the accident. Alternatively, he

would also contend that the incident is of the year 2005 and in

the event of confirmation of conviction, the sentence imposed

against the petitioner may be converted to the period which he

undergone already.

9) Sri Y. Jagadeeswara Rao, learned counsel,

representing the learned Public Prosecutor, would contend that

both the Courts below on thorough appreciation of the evidence

on record, found the Revision Petitioner guilty of the offences.

There are no merits in the Criminal Appeal, as such, Criminal

Revision Case is liable to be dismissed.

10) In deciding this Criminal Revision Case, considering

the judgment of the learned Chief Metropolitan Magistrate,

Visakhapatnam and the judgment of the learned Metropolitan

Sessions Judge, Visakhapatnam and looking into the allegations

of the prosecution, the first thing that is to be considered is as

to whether the prosecution before the Court below proved the

fact that accused was the driver of the offending vehicle i.e.,

RTC bus bearing No.A.P.11 Z 3329 at the time of offence in

question.

11) Coming to the evidence of P.W.1, having spoken

about the incident which will hereinafter be referred, he testified

that he cannot identify the driver of the RTC Bus and he noted

down the number of the said Bus as 210. Coming to the

evidence of P.W.2, who is the Home Guard, and who claimed to

have witnessed the occurrence after speaking about the manner

of the accident further testified that accused is the driver of the

said RTC bus at the time of occurrence (the witness on seeing

the accused stated as above). During the cross examination of

P.W.2, accused did not dispute that he was the driver of the RTC

bus at the time of accident in question. His testimony is not at

all challenged in any way. According to the evidence of P.W.3,

he cannot identify the driver of the RTC Bus, but soon after the

accident, driver of the RTC bus escaped from the scene. There

is evidence of investigating officer, P.W.9 to the effect that

during the cross examination, accused came to police station

and surrendered and then he arrested the accused and released

him on bail. So, there is direct evidence of P.W.2 stating that

accused was the driver of the offending vehicle at the time of

offence which is not under challenge.

12) The defence theory of the accused is that the

motorcyclist entered in between the RTC bus and opposite

coming jeep, as such, incident occurred. Accused got examined

D.W.1, who is no other than the Conductor of the RTC bus and

D.W.1 deposed that he worked as Conductor in Route No.210.

He is working as Conductor in APSRTC, Waltair Depot. Accused

was the driver of bus and he was the bus Conductor. When the

bus reached near Poorna Market, no incident occurred. So, it is

altogether a different aspect that the evidence of D.W.1 that no

incident was occurred will be appreciated hereinafter. But the

thing is that D.W.1 categorically testified that the accused was

the driver on the date of incident and at the time of incident.

So, the prosecution adduced cogent evidence to show that the

accused was the driver of the RTC bus at the time of incident in

question.

13) Now the Court has to see whether the evidence on

record before the Court below was sufficient to show that the

accused caused the death of the deceased by driving the RTC

bus in rash and negligent act. As seen from Ex.P.1, statement

of P.W.1, it is to the effect that he is resident of

Krishnarayapuram. He is a Supervisor in Industrial Engineering

System. On 02.03.2005 morning, he along with the company

worker, Venkat, started at 3-00 P.M. on his motorbike to reach

Gajuwaka. At 3-20 P.M. when they were at "Y" junction, near

RCL bridge, he found a jeep bearing No.A.P.31 J 6053 coming

opposite, as such he slow down his motorbike and then the back

coming RTC Bus of Route No.210, came with speed and without

horn and dashed the motorbike behind its back and then he and

the pillion rider fell down and sustained injuries. Later, he came

to know that on the way to hospital, Venkat succumbed to

injuries. This is the report of P.W.1.

14) Coming to the evidence of P.W.1, he testified the

same. He deposed that on 02.03.2005, he along with Venkat

were proceeding from Coastal Battery to go to Autonagar on

Bajaj Pulsar A.P.31 AG 3802. At that time they reached near

RCL Bridge at Dockyard at about 3-20 P.M. they tried to give a

space by witnessing a Trucker which was coming in the opposite

direction. Hence, he slow down the bike. Meanwhile, RTC bus

came behind them without blowing horn with high speed and

dashed their motorbike, due to which, they fell down and

become unconscious. He was taken to the hospital. On the way

to the hospital, Venkat died. Ex.P.1 is his statement. P.W.2 is

the direct witness to the occurrence, who was a Home Guard

and according to him on 02.03.2005 he was on duty at

Dockyard Bridge two persons were coming on Blue Colour Pulsar

Motor vehicle. When they reached Bridge at 3-00 P.M.,

meanwhile, the Route No.210 City Bus of APSRTC came behind

the motorcycle and dashed the said motorcycle. The rider and

pillion rider are fallen down. Then they rushed to the spot and

shifted one of the injured to the hospital and other injured was

declared as dead when he was taken to hospital. His statement

was recorded by the police. He was present at the time of

inquest. Ex.P.2 is inquest report. Accused is the driver of RTC

Bus.

15) It is to be noticed that cross examination of P.W.1

was recorded as Nil. Later, accused got recalled P.W.1 and as

evident from the judgment of the trial Court later not pressed

for the cross examination of P.W.1. The testimony of P.W.1 was

not challenged in any way. Coming to the cross examination

part, he elicited from P.W.2 that previously he stated before

police that two persons came on Blue Colour Motorbike and they

found coming jeep and stopped the vehicle and RTC bus came

and dashed the bike. The above portion of P.W.2 elicited in

cross examination is not contra to the chief examination. There

remained nothing in the testimony of P.W.2 in cross examination

to disbelieve his testimony. P.W.3 is also a witness to the

occurrence to speak about the manner of accident and he

testified that on 02.03.2005 at 3-00 P.M. or 3-30 P.M., near

Small Bridge at Dry Dock while they were six members coming

in a jeep from Gajuwaka towards Chavula Madhumu they

reached the bridge. The bus dashed the jeep and motorcycle

and between the jeep and RTC Bus, there was a motorcyclist

and he sustained injuries. He (P.W.3) also received injuries. He

cannot identify the driver. During the cross examination, he

deposed that motorcycle entered the middle of the Bus and the

Jeep and on seeing the van motorcyclist applied his vehicle in

slow manner. There remained nothing in his cross examination

to disbelieve his testimony. So, the answers that are elicited

during the cross examination of P.W.3 means that on seeing the

jeep in opposite direction, the driver of motorbike slow down the

vehicle and RTC Bus hit behind back.

16) Having considered the evidence of P.Ws.1 to 3 in

chief examination and cross examination, their evidence is

quietly consistent. The driver of RTC Bus i.e., accused was not

supposed to hit the motorbike behind its back by driving the

RTC bus in a negligent manner. He had to maintain minimum

distance from the vehicle going ahead of the bus. In my

considered view, the evidence of P.Ws.1 to 3 categorically

proves that accused was driving the vehicle in a rash and

negligent manner at the time of accident.

17) P.W.4 is the brother of the deceased and who came

to know about the occurrence and he was present at the time of

inquest. The evidence of P.Ws.2 and 4 with regard to the

inquest is not challenged in any way. P.W.5 was also present at

the time of inquest. According to P.W.5, they opined that the

deceased died due to accident. P.W.6 is the mediator to the

observation report and he testified the fact that he was present

at the time of observation report in the Dockyard near Bridge on

the road and by that time they observed the existence of Bus

and Scooter, etc. P.W.7 spoken about the injuries received by

P.W.1 and that he examined P.W.1, injured and observed pain

swelling, lower abdomen with fracture pelvis and fracture back

bone and post traumatic fracture pelvis. Ex.P.6 is the wound

certificate. Nothing is there in the cross examination to

disbelieve his testimony. According to P.W.8, the Motor Vehicle

Inspector, he observed the crime vehicle and inspected the

same and the accident was not occurred with any mechanical

defects. P.W.9, Inspector of Police, spoken about the

investigation conducted by him and absolutely there remained

nothing in the cross examination to disbelieve his testimony.

18) It is to be noticed that the accused has to say that

nothing was occurred at the time of offence, examined D.W.1,

who testified that when the Bus reached near Poorna Market, no

incident occurred. If the incident was occurred, it would have

been entered in the Register. During cross examination by the

learned Assistant Public Prosecutor, he denied that he deposing

false.

19) It is to be noticed that it is the accused, who elicited

certain answers from P.W.3, that motorcyclist entered in

between RTC Bus and Jeep, thereby throwing the blame on the

motorcyclist. As this Court already pointed out that accused

was not supposed to hit the motorbike and he had to maintain

minimum distance from the vehicle going ahead of the Bus. So,

the evidence of D.W.1 is lacking about any details as regards

the manner of accident, which was suggested to P.W.3. Hence,

it is clear that D.W.1 purposefully deposed that nothing was

happened at Poorna Market at the time of accident. This Court

is not persuaded to believe the evidence of D.W.1. Though the

Courts below did not discuss about D.W.1, but according to the

contention of the learned counsel for the petitioner, the evidence

of D.W.1 is useful to the case of the petitioner. In my considered

view, the evidence of D.W.1 is not at all believable.

20) On perusal of the judgment of the learned

Metropolitan Sessions Judge, Visakhapatnam, he appreciated

the evidence on correct lines and negatived the plea of the

accused. Hence, I am of the considered view that the

prosecution before the Court below was able to prove that the

death of the deceased was on account of rash and negligent act

attributed against the accused and receipt of grievous injuries

by P.W.1 and both the Courts below rightly gave findings

against the Revision Petitioner.

21) Now, it is also the alternative contention of the

learned counsel for the petitioner that in the event of dismissal

of the Criminal Revision, the sentence that was imposed against

the accused may be converted into period which he undergone

as he is a senior citizen.

22) He relied upon a judgment of the Hon'ble Supreme

Court in V.K. Verma vs. CBI1. It was a case where the case

arose under the allegations of bribe and the litigation of almost

reached 30 years and by the time of appeal, the appellant was

aged 76 years. Under such circumstances, the Hon'ble Supreme

Court reduced the sentence.

23) Coming to the present case on hand, even the

Hon'ble Supreme Court in number of decisions held that the

offences under Section 304-A of IPC are to be dealt with

(2014) 3 SCC 485

appropriately. However, the fact is that by this time looking into

the age particulars of the Revision Petitioner must have been in

the age of 60 years. Apart from this, accused was not in prison

during the investigation and he was released on bail by the

police officer on the same day of the arrest.

24) Having regard to the above, I am of the considered

view that ends of justice will meet, if the term of imprisonment

is reduced to three months under Section 304-A of I.P.C. and

reduced to one moth under Section 338 of I.P.C.

25) In the result, the Criminal Revision Case is allowed

in part, modifying the sentence of imprisonment imposed

against the petitioner under Section 304-A of IPC to that of

three months simple imprisonment instead of six months and

further modifying the sentence of imprisonment under Section

338 of I.P.C. to that of simple imprisonment of one month

instead of three months. The rest of the judgment of the

learned Metropolitan Sessions Judge, Visakhapatnam in Criminal

Appeal No.123 of 2007 shall stands confirmed.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 20.12.2022.

PGR

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

CRL. REVISION CASE NO.1587 OF 2008

Date: 20.12.2022

PGR