Ragati Hari, vs The State Of Ap Rep By Its Pp Hyd.,
2022 Latest Caselaw 8974 AP

                                  1


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

          CRIMINAL REVISION CASE NO.903 OF 2008

ORDER:-

        This is a Criminal Revision Case is filed under Sections 397

and 401 of Criminal Procedure Code ("Cr.P.C." for short),

challenging the judgment in Criminal Appeal No.23 of 2007,

dated 23.06.2008, on the file of I Additional Metropolitan

Sessions Judge, Visakhapatnam, where under the learned

Sessions Judge dismissed the Criminal Appeal filed by the

petitioner, confirming the judgment in C.C.No.35 of 2006, dated

01.02.2007

, on the file of the II Additional Chief Metropolitan

Magistrate, Visakhapatnam.

2) The petitioner faced the trial under Section 304-A of

Indian Penal Code ("I.P.C." for short) in C.C.No.35 of 2006,

dated 01.02.2007 and in the said case, the learned II Additional

Chief Metropolitan Magistrate, Visakhapatnam, found the

petitioner guilty of the offence under Section 304-A of I.P.C. and

after questioning the him, sentenced him to suffer simple

imprisonment for six months.

3) The parties to this Criminal Revision Case will

hereinafter be referred as described before the trial Court, for

the sake of convenience.

4) The State, represented by Sub-Inspector of Police, II

Town Traffic Police Station, Visakhapatnam, filed charge sheet in

Crime No.3 of 2006 of II Town Traffic Police Station,

Visakhapatnam, alleging in substance as follows:

(i) Accused is resident of Santhi Nagar, Kailasapuram

Road, Visakhapatnam. He is the rider of Yamaha Rx 100

Motorcycle bearing Registration No.AP 31B 4110 at the time of

occurrence. The offence took place on 06.01.2006 at 7-00 P.M.

on the road near Ramakrishna Theatre, Kobbarithota,

Visakhapatnam, within the limits of II Town Traffic Police

Station. The deceased in the case is one Anipi Simhadri S/o late

Raja Rao, aged 55 years. He is resident of SVP Nagar,

Kobbarithota, Visakhapatnam. L.W.1-Anipi Kanaka Raju

resident of Kancharapalem, Visakhapatnam, is the defacto-

complainant and the son of the deceased. L.W.2-Vanapalli

Govinda and L.W.3-K. Appa Rao are direct witnesses to the

occurrence.

(ii) On 06.01.2006 at 7-00 P.M., accused being rider of

Yamaha Rx 100 Motorcycle bearing No.A.P.31B 4110, driven the

same in a rash and negligent manner while coming from

Ramakrishna junction towards Dolphin Junction. With the

motorbike, he dashed the pedestrian (deceased) while crossing

the road near Ramakrishna Theatre, Kobbarithota,

Visakhapatnam. Then the deceased fell on the road and

sustained injuries and blood oozed out from the ear and nose.

He was shifted to King George Hospital, Visakhapatnam for

treatment on 07.01.2006 in unconscious state. While

undergoing treatment, he succumbed to injuries at the hospital

on 09.01.2006 at 2-00 P.M.

(iii) L.W.11, Head Cosntable-436 recorded the statement

of L.W.1 and forwarded the same to L.W.12. Originally, L.W.12

registered a case in Crime No.3 of 2006 under Section 337 of

I.P.C. and investigated into. He examined the scene of offence

and prepared rough sketch and examined the witnesses. After

the death of deceased, section of law was altered into Section

304-A of IPC. Inquest was held over the dead body of the

deceased on 10.01.2006 during the course of investigation.

Later, the body was referred for postmortem examination to the

Professor, Forensic Medicine, Andhra Medical College,

Visakhapatnam. The Assistant Professor of Forensic Medicine,

Andhra Medical College, Visakhapatnam, conducted autopsy

over the dead body of the deceased and issued postmortem

certificate, opining that he died due to Respiratory and

circulatory failure due to injury to skull bone, injury to brain due

to "Head Injury". L.W.12, the investigating officer, arrested the

accused on 12.01.2006 at 12-00 noon and sent him for judicial

remand. The Assistant Motor Vehicle Inspector, Visakhapatnam,

inspected the crime vehicle and issued a report, opining that the

accident was not due to any mechanical defects of the vehicle.

After completion of the investigation, charge sheet is laid.

(iv) The learned II Additional Chief Metropolitan

Magistrate, Visakhapatnam, took the case on file under Section

304-A of I.P.C. and after appearance of the accused and after

furnishing copies of documents, examined him under Section

251 of Cr.P.C. with reference to allegations in the prosecution

case. Accused denied the allegations, pleaded not guilty and

claimed to be tried.

(v) During the course of trial, on behalf of the prosecution,

P.Ws.1 to 7 were examined and Exs.P.1 to P.7 were marked.

After closure of the evidence of prosecution, accused was

examined under Section 313 of Cr.P.C. with reference to the

incriminating circumstances appearing in the evidence, for which

the accused denied the incriminating circumstances and

reported no defence evidence.

(vi) The learned II Additional Chief Metropolitan

Magistrate, Visakhapatnam, after hearing both sides and on

considering the oral as well as documentary evidence, found the

accused guilty of the offence under Section 304-A of I.P.C. and

after questioning him about the quantum of sentence, sentenced

him to suffer simple imprisonment for six months. Aggrieved by

the same, the unsuccessful accused in C.C.No.35 of 2006, filed

Criminal Appeal No.23 of 2007 before the I Additional

Metropolitan Sessions Judge, Visakhapatnam and the learned

appellate Court dismissed the appeal filed by the appellant,

confirming the judgment of the trial Court. Aggrieved by the

same, the unsuccessful appellant in Criminal Appeal No.23 of

2007, filed the present Criminal Revision Case.

5) Now in deciding the Criminal Revision Case, the

point that arises for consideration is whether the judgment in

Criminal Appeal No.23 of 2007, on the file of the I Additional

Metropolitan Sessions Judge, Visakhapatnam, dated 23.06.2008,

suffers with any illegality, irregularity or impropriety and

whether there are any grounds to interfere with the same?

Point:

6) Sri Siva Sai Swaroop, learned counsel, representing

learned counsel for the Revision Petitioner, would contend that

the Courts below without proper analyzation of the evidence on

record and without looking into the probabilities of the case,

erred in convicting the accused for the offence under Section

304-A of I.P.C. There was no material before the trial Court to

establish the identity of the accused and the evidence of P.Ws.2

and 3 was interested in nature. P.W.1, the maker of the F.I.R.

was not the witness to the occurrence. However, both the

Courts below erroneously relied upon the evidence of P.Ws.2

and 3 and recorded an order of conviction, which is not tenable.

The learned counsel, Sri Siva Sai Swaroop, apart from the said

contention, would also canvass a contention that in case of

dismissal of this Criminal Revision Case, the sentence imposed

against the petitioner, may be reduced.

7) The learned counsel by name Sri Y. Jagadeeswara

Rao, representing learned Public Prosecutor, would seeks to

support the judgment of the trial Court on the ground that the

evidence of P.Ws.2 and 3 remained unshaked during the course

of cross examination and they were natural witnesses, who

witnessed the occurrence and their evidence is trustworthy and

both the Courts below rightly looked into the evidence on record

and rightly recorded an order of conviction as the case may be

and even the learned II Additional Chief Metropolitan Magistrate,

Visakhapatnam, took a lenient view and imposed only six

months simple imprisonment, as such, the Criminal Revision

Case is liable to be dismissed.

8) In the light of the facts and circumstances, what the

prosecution was supposed to establish before the trial Court is

as to whether the accused was the driver of the offending

vehicle i.e., motorbike bearing No.A.P.31B 4110 at the time of

incident and as to whether he drove the same in a rash and

negligent manner and caused the death of deceased.

9) P.W.1 before the trial Court is no other than the son

of deceased, who came to know about the occurrence and gave

statement under Ex.P.1. For better appreciation, it is pertinent

to look into the substance of the allegations in Ex.P.1. As seen

from Ex.P.1, it is purported statement recorded from the mouth

of P.W.1 which runs in substance that the date of offence is

06.01.2006 at 7-00 P.M. His father Simhadri at Ramakrishna

Theatre, was crossing the road. Then a motorbike came with

high speed in a rash and negligent manner and hit his father.

As his father did not find any visible injuries, he was taken to

house. On 07.01.2006, evening he came to his father and took

him to the hospital where he died. This is a substance of the

allegations raised in Ex.P.1.

10) Now coming to the evidence part of P.W.1, his

evidence is very clear that he was told that his father died of

accident while he was crossing the road. His father was taken to

the house and there from to the hospital. His father was treated

for 1 ½ days and he told him that a motorcycle hit him.

Thereafter he died. Ex.P.1 is his report.

11) Now coming to the evidence of P.W.2, who claimed

to be a witness to the occurrence, he deposed that he is doing

selling of flowers since 10 years. He is a flower vendor. He was

coming by selling flowers from Kobbarithota towards

Durgalamma temple on the date of incident. One old man was

coming towards Durgalamma temple. One boy was riding a

motorcycle. He can identify the said boy. He was riding

motorcycle at speed and consequently hit the old man and he

sustained injuries. He (P.W.2) left the place. Number of vehicle

is A.P.31 V 4110. He was examined by the police.

12) P.W.3 deposed that he is a flowers vendor since 20

years. He witnessed the accident while he was selling flowers.

When he reached nearby Durgalamma temple, the accident was

happened. The road was leading from Ramakrishna junction to

Dolphin hotel. One boy was riding Yamaha motorcycle

negligently at high speed and hit a person there and the said

person sustained injuries on the head. Blood was coming out

from the nose. Accused is the person, who was riding the

motorcycle on that day. He informed the incident to injured

son. He was examined by the police. The injured was alive at

the time of accident.

13) P.W.4 is the wife of the deceased, who spoken to the

fact that the deceased died two years ago due to hitting by a

motorcycle. One boy told about the accident. The deceased

was brought from Durgalamma temple where the accident took

place. He sustained injury and blood was oozing out from nose

and mouth. She took him to King George Hospital where he

died after surviving for one day. Her son gave report to police.

14) P.W.5 testified that he was present at the time of

inquest and Ex.P.2 is inquest report and it bears his signature.

P.W.6 is the Motor Vehicle Inspector, who deposed that he

received a requisition from Station House Officer, II Town Police

Station on 10.01.2006 and inspected the motorcycle bearing

No.A.P.31B 4110 on the even day at II Town Traffic Police

Station at Visakhapatnam. He found the breaks system of the

vehicle is intact. The accident occurred was not due to any

mechanical defects of the vehicle. Ex.P.3 is certificate issued by

him. P.W.7 is the person, who conducted autopsy over the dead

body of the deceased and issued Ex.P.4. The cause of death is

respiratory and circulatory failure due to injury to skull, injury to

brain. Ex.P.4 is the postmortem report. P.W.8 is the person,

who recorded the statement of P.W.1 and he testified the same.

P.W.9 is the investigating officer, who spoken about the

investigation.

15) Admittedly, according to the case of prosecution,

P.W.1 is not the direct witness to the occurrence. The date of

offence was 06.01.2006 and the statement from P.W.1 came to

be recorded on 07.01.2006. It appears from the inquest report

that though originally the injured did not find any visible injuries

on his body and he was taken to the house and on the very next

day when the blood was oozing from his nose and mouth, he

was taken to the hospital and in the hospital he died. So, on

account of the delay in recording the statement of P.W.1 by the

police, the case of the prosecution cannot be thrown out. In a

case of this nature, the delay is bound to be occurred. When

the date of incident was said to be on 06.01.2006, the injured

was brought to the hospital on the very next day, as such, the

facts came to the knowledge of the police only on the next day

where the statement of P.W.1 was recorded.

16) Now, this Court has to see whether the evidence

adduced by the prosecution before the trial Court would

establish the identity of the accused that he was the rider of the

offending vehicle at the time of incident and if so whether he

drove the vehicle in a rash and negligent manner and caused

the death of the deceased. To establish the same, there is

evidence of P.Ws.2 and 3. As this Court already pointed out that

P.W.2 testified the fact that he can identify the driver and the

driver driven the vehicle with speed. Turning to the evidence of

P.W.3, he categorically testified that the accused is the person,

who driven the vehicle in a rash and negligent manner at the

time of accident.

17) Now, I would like to look into the cross examination

part of P.Ws.2 and 3 to ascertain as to whether their evidence is

convincing or not and to sustain his conviction and in their

evidence they remains anything in support of the contention of

the accused. This Court would like to make it clear that the

defence of the accused is denial simplicitor, though specific and

distinct incriminating circumstances were put before him by the

trial Court during Section 313 Cr.P.C. examination. He denied

the same and reported no defence witnesses and when he asked

that whether he wishes to say anything, he replied that his

Lawyer would say. So, when the evidence adduced by the

prosecution is so specific that the accused was the driver of the

offending vehicle at the time of accident in question and he

drove the same with high speed and hit the deceased, accused

did not venture to deny the fact that he was the driver of the

vehicle at the time of accident. So, virtually, he has no say that

he was not driving the vehicle at the time of accident and that

he did not drive the same in the manner as alleged by the

prosecution. So, the denial simplicitor made by the accused is

nothing but evasive in my considered view when crucial facts

were spoken by P.Ws.2 and 3 as regards the identity of the

accused and also the fact that accused driven the vehicle in a

rash and negligent manner and those things were put to the

accused. Accused was supposed to explain the same. So, the

defence of the accused is nothing but evasive before the trial

Court.

18) Now coming to the cross examination part of P.W.2,

he is selling flowers at Kurupam market. He was riding the

cycle from Kobbarithota at the time of accident. He witnessed

the accident while he was coming to the road from the lane.

Four or five persons were there when he witnessed the accident.

Injured was alive and blood was coming out from the nose. He

happened to witness the accident while he was going that side.

Someone has lifted the injured. For the first time, he is giving

evidence. He denied that he was not present at the scene of

offence and he was not selling flowers by then.

19) Coming to the evidence of P.W.3 during the course

of cross examination he stated that he is a hawker and selling

flowers. Deceased was also a flower vendor and he was aged

50 or 60 years. Deceased maintained a shop. He resides at

behind Ramakrishna theatre. The accident was occurred while

he (P.W.3) was going towards a lane by the side of Durgalamma

temple. He stated before the police that the accused was riding

the motorcycle without blowing horn and at speed. The vehicle

hit the deceased while he was crossing the divider. The vehicle

hit while the deceased was crossing the road and the question of

hitting front side or back side as suggested does not arise. He

fell down soon after the hitting. He denied that he was not

present at the time of accident.

20) In the light of answers spoken by P.W.3 on minute

aspects in the cross examination that when the deceased was

crossing the road, the vehicle hit, etc., the suggestion put forth

before P.W.3 that he was not present at the time of accident

cannot stands to any reason. P.Ws.2 and 3 were quietly

emphatic about their presence at the time of occurrence and

accused failed to dent their cross examination in any way to suit

his defence. Having gone through the evidence of P.Ws.2 and 3

carefully, this Court is of the considered view that their evidence

cannot be disbelieved at all. Simply, because P.Ws.2 and 3 were

the flower vendors and the deceased was also a flower vendor,

their evidence cannot be branded as interested in nature. Under

the circumstances, I am of the considered view that the

evidence adduced by the prosecution regarding the identity of

the accused as rider of the motorcycle is quietly believable.

21) Now coming to the manner of accident, a pedestrian

is certainly entitled to cross the road. Ultimately, it is for the

driver of the motorbike or the vehicle to take care of the

pedestrian, who would cross the road naturally. Virtually, it is

not the defence of the accused that there was any negligence on

the part of the deceased in trying to cross the road. If the

accused was not at fault and if the fault was on the part of the

deceased, accused is bound to open his mouth suggesting any

probabilities in his defence that he was not at all fault in driving

the vehicle. Accused for the reasons best known to him, made

evasive defence and denied everything and has no probable say

at all to suit his defence. In the circumstances of the case

P.Ws.2 and 3 withstood the probing cross examination made on

behalf of the accused and the answers that are spoken by

P.Ws.2 and 3 would further lends an assurance to the case of

prosecution as having witnessed the occurrence.

22) So, the evidence of them is that the accused came

in the motorbike with high speed and hit the deceased

negligently. Having considered the evidence of P.W.7, the

person, who conducted autopsy over the dead body of the

deceased, coupled with Ex.P.4, the postmortem report, there is

a link established by the prosecution that the cause of death

was on account of the injuries received by the deceased which

the deceased sustained when he was hit by the motorbike of the

accused.

23) A perusal of the judgment of the trial Court reveals

that the trial Court furnished cogent reasons and rightly believed

the evidence of P.Ws.2 and 3. The learned I Additional

Metropolitan Sessions Judge, Visakhapatnam also when the

accused raised various contentions in the Criminal Appeal,

rightly looked into all those contentions and negatived the

contentions of the accused. The findings of the learned

appellate Court are such that P.Ws.2 and 3 fully supported the

case of the prosecution and their evidence is not all impeached

and their evidence on the crucial aspect is quietly believable.

The learned I Metropolitan Sessions Judge, Visakhapatnam

rightly looked into the fact that the accident occurred was not on

account of any mechanical defect of the vehicle in question.

24) Apart from this, the investigation done by P.W.7, the

investigating officer, is also on right lines. Having regard to the

evidence on record, I am of the considered view that the

prosecution before the trial Court was successfully able to

establish the guilt of the accused beyond reasonable doubt

under Section 304-A of IPC.

25) The learned counsel for the petitioner also

canvassed a contention herein that in the event of dismissal of

the Criminal Revision Case by this Court, the Court may consider

to reduce the quantum of sentence imposed against the

petitioner. It is to be noticed that the offence under Section

304-A of IPC is punishable with imprisonment of either

description for a term which may extend to two years. The

learned II Additional Chief Metropolitan Magistrate,

Visakhapatnam, after questioning the accused, imposed only six

months simple imprisonment. The above sentence by the

learned II Additional Chief Metropolitan Magistrate,

Visakhapatnam cannot be said to be excessive or harsh at all.

Already the learned trial Court took a lenient view, which was

confirmed by the appellate Court.

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

view that the sentence imposed against the Revision Petitioner

before the trial Court which was confirmed by the appellate

Court in the Criminal Appeal is not liable to be interfered with

and I see no reason to reduce the said sentence of

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

judgment in Criminal Appeal No.23 of 2007, dated 23.06.2008,

on the file of the I Additional Metropolitan Sessions Judge,

Visakhapatnam, does not suffers with any illegality, irregularity

and impropriety, as such, the Criminal Revision Case must fail.

27) In the result, the Criminal Revision Case is

dismissed.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt.24.11.2022.

PGR

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

CRIMINAL REVISION CASE NO.903 OF 2008

Date:24.11.2022

PGR