Andhra Pradesh High Court - Amravati
Bonthu Narasimha Rao vs The State Of A.P. on 31 October, 2022
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THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL REVISION CASE NO.575 OF 2007
ORDER:-
This Criminal Revision Case came to be filed on behalf of
the petitioner, who was the accused in C.C.No.423 of 2002, on
the file of Additional Judicial Magistrate of First Class,
Amalapuram, East Godavari District and appellant in Criminal
Appeal No.222 of 2005, on the file of II Additional District &
Sessions Judge, Amalapuram, East Godavari District.
2) The Petitioner herein faced the prosecution in
C.C.No.423 of 2002, on the allegations of Sections 304-A, 338,
337 of Indian Penal Code ("I.P.C." in short) and Section 3 & 4 of
Motor Vehicles Act r/w Section 181 of Motor Vehicles Act ("M.V.
Act" in short). He suffered with conviction in C.C.No.423 of
2002, dated 13.12.2005, on the file of Additional Judicial
Magistrate of First Class, Amalapuram, against which he filed a
Criminal Appeal No.222 of 2005, on the file of II Additional
District & Sessions Judge, Amalapuram, where he could not
succeed. Challenging the judgment in the Criminal Appeal
No.222 of 2005, dated 13.04.2007, he filed the present Criminal
Revision Case.
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3) The case of the prosecution in brief pertaining to
C.C.No.423 of 2002, on the file of the Additional Judicial
Magistrate of First Class, Amalapuram, is as follows:
(i) On 21.08.2002 at 5-00 P.M., the accused driver of
Tractor B/No.AP5 B 7242 and Trailor B/No.AP 5U 3487
combination started from Devaguptham Village in view of the
marriage of daughter of P.W.9 which was fixed to perform in
Venkateswara Swamy Temple at Amalapuram on the night of
same day at 8-00 P.M. The P.Ws.1 to 9 and Deceased Nos.1 to
5 i.e., Katta Vijaya Lakshmi, Kudipudi Suryakantham, Namala
Venkata Lakshmi, Pithani Sailakshmi, Badugu Dhana Lakshmi,
boarded the crime vehicle and the accused failed to take any
precautions while taking about 30 persons in the trailor. On the
way to Amalapuram when the said Tractor-cum-Trailor reached
near to the Rice Mill of Kamanagaruvu village at about 5-45
P.M., the accused drove the said vehicle in a rash and negligent
manner, as a result, the left front tyre of the tractor was
suddenly burst and the tractor went un-control of the accused
and as a result the Tractor-cum-Trailor turned turtle into the left
side irrigation canal and on that all passengers who travelled in
the said Tractor-cum-Trailor fallen underneath and drowned in
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the water. P.Ws.1 to 9 as well as Deceased Nos.1 to 5 received
injuries on their persons. P.W.11-P.C.1742, Ainavilli Police
Station who was coming behind the crime vehicle, witnessed the
offence. With the assistance of P.W.10 and some others he
rescued the injured persons and sent them to the hospital for
treatment by the autos. The accused absconded from the scene
of offence after the offence.
(ii) On 21.08.2002 at 7-00 P.M. on the strength of
Hospital Intimation and statement given by Deceased No.4, a
case in Crime No.56 of 2002 under Section 338, 337 of IPC has
been registered and investigated into by the Investigating
Officer i.e., P.W.29. During the course of investigation, he
examined all the injured persons on 21.08.2002 including
P.W.11.
(iii) On 22.08.2002 P.W.29 visited the scene of offence,
inspected the same minutely, prepared rough sketch of the
same and got photographed the scene of offence in various
angles through L.W.33-Private Photographer and he sent a
requisition to P.W.25-Motor Vehicle Inspector, Amalapuram to
inspect the crime vehicle and to issue necessary accident report.
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(iv) On 26.08.2002 at 9-30 A.M. on the strength of death
intimation of Deceased No.1 from Critical Care Hospital,
Amalapuram, P.W.29 re-registered the case altering the section
of law from 338 and 337 I.P.C. to 304-A, 338 and 337 I.P.C. and
issued F.I.R. to all officers concerned and he conducted inquest
over dead body of Deceased No.1 on 26.08.2002 in the
presence of P.W.18 and L.W.35-Kudupudi Surya Prakasarao and
36-Bhyrisetty Nageswara Rao. On 27.08.2002 at 7-00 A.M.
P.W.29 received death intimation of Deceased Nos.2 and 3 and
he conducted inquests over dead body of Deceased Nos.2 and 3
in the presence of P.W.18 and L.W.35- Kudupudi Surya
Prakasarao and 36-Bhyrisetty Nageswara Rao. On 28.08.2002
at 9-00 A.M. he received death intimation of Deceased No.4,
who is complainant in this case and he conducted inquest over
the dead body of Deceased No.4 in the presence of P.W.18 and
L.W.35-Kudupudi Surya Prakasarao and 36-Bhyrisetty
Nageswara Rao and requisitions were given by P.W.29 to the
concerned Medical Officers to conduct postmortem examinations
over dead bodies of Deceased Nos.1 to 54 and to issue
necessary postmortem certificates.
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(v) On 30.08.2002 at 8-00 P.M. P.W.29 arrested the
accused at his house at Devaguptham and sent him to the Court
for judicial remand. On 01.09.2002 P.W.27 received a report
from P.W.16 stating that Deceased No.5, who travelled in the
crime vehicle on 21.08.2002 at the time of offence, received
injuries. Later she was discharged from hospital. On 23.08.2002
she was admitted in private hospital and from there also she
was discharged and on 26.08.2002 midnight Deceased No.5 was
died and the body was buried at Pallamkurru and hence
requested action and he gave a requisition to P.W.28-Mandal
Executive Magistrate, Katrenikona to exhume the grave of
Deceased No.5 and to conduct inquest.
(vi) On 02.09.2002 P.W.28 exhumed the body from the
grave through P.W.17 and conducted inquest over Deceased
No.5 and P.W.24 conducted postmortem examination at the
grave and later the body was again buried in the same grave.
P.W.25 who inspected the crime vehicle issued accident report
and opined that the accident was due to mechanical defect of
the vehicle with sudden deflation of the crime vehicle left tyre
due to burst and it is observed that the driver drove the vehicle
through the said tyre was in bold condition and thus not
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exercised reasonable care and diligence. P.Ws.19 to 24 and 26
are the medical officers and they issued wound certificates and
postmortem certificates of injured persons and Deceased Nos.1
to 5 respectively.
4) The learned Additional Judicial Magistrate of First
Class, Amalapuram, on considering the material on record,
taking cognizance under Section 304-A, 338 and 337 of I.P.C.
and further Section 3 and 4 r/w 181 of M.V. Act. On appearance
of the petitioner in the capacity of the accused before the trial
Court and after complying the provisions of Section 207 of Code
of Criminal Procedure ("Cr.P.C." for short), he was examined
under Section 251 of Cr.P.C. with reference to the allegations in
the case of the prosecution, for which he denied the allegations
and pleaded not guilty and claimed to be tried.
5) During the course of trial, on behalf of the
prosecution P.Ws.1 to 29 were examined and Exs.P.1 to P.47
were marked. The accused was examined before the trial Court
under Section 313 Cr.P.C. for which he denied the incriminating
circumstances put before him, but he did not enter into any
defence by examining any witnesses. But, he relied on Ex.D.1-
portion of 161 Cr.P.C. statement of P.W.14.
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6) The learned Additional Judicial Magistrate of First
Class, Amalapuram, on hearing both sides and on considering
the oral and documentary evidence, found the petitioner guilty
of the offence under Section 304-Aof I.P.C. for causing death of
five persons and Sections 337 and 338 of I.P.C. for causing
injuries to P.Ws.1 to 9 and further Section 3 and 4 r/w 181 of
M.V. Act, for driving the vehicle without any driving license and
accordingly, convicted him and sentenced him to suffer Rigorous
Imprisonment for two years and to pay fine of Rs.1,000/- in
default Simple Imprisonment for four months for the offence
under Section 304-A I.P.C. and to suffer Simple Imprisonment
for six months for the offence under Section 337 of I.P.C. and to
suffer Simple Imprisonment for one year for the offence under
Section 337 of I.P.C. and to suffer Simple Imprisonment for
three months for the offence under Section 3 and 4 of M.V. Act
r/w 181 of M.V. Act.
7) Aggrieved by the said conviction and sentence
imposed against the accused, the accused filed Criminal Appeal
No.222 of 2005 on the file of II Additional District & Sessions
Judge, Amalapuram, East Godavari District and the learned II
Additional District & Sessions Judge, Amalapuram, by virtue of
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the judgment, dated 13.04.2007, allowed Criminal Appeal in
part only relating to modification of sentence and confirming the
appeal in all other aspects. So, the learned Appellate Judge
modified the sentence imposed against the accused as that of
one year Rigorous Imprisonment for the offence under Section
304-A of I.P.C. and further modified the sentence under Section
338 of I.P.C. as that of Rigorous Imprisonment for six months
and further modified the sentence as that of Rigorous
Imprisonment for three months for the offence under Section
337 of I.P.C. The conviction and sentence imposed under the
provisions of M.V. Act is not disturbed. Aggrieved by the said
judgment of the Appellate Court, the unsuccessful accused in
Calendar Case, who is an unsuccessful appellant in the Criminal
Appeal, filed the present Criminal Revision Case, challenging the
judgment of the Appellate Court.
8) Now in deciding this Criminal Revision Case, the
point that arises for consideration is whether the judgment,
dated 13.04.2007 in Criminal Appeal No.222 of 2005 suffers
with any illegality, irregularity and impropriety and as to
whether there are any grounds to set aside the judgment in
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Criminal Appeal No.222 of 2005, on the file of the II Additional
District & Sessions Judge, Amalapuram?
Point:-
9) The learned Advocate by name Sri T. Sai Surya,
representing the learned counsel for the petitioner by name Sri
K. Chidambaram, would advert to the grounds of revision and
the substance of the grounds of revision is that both the Courts
below did not take care to ensure that identification of the
accused is established, as such, conviction of the petitioner is
wholly illegal and contrary to the evidence. The Courts below
did not see that all the witnesses of the occurrence did not
support the case and P.Ws.10 to 19 had no scope to know the
driver of the vehicle at the relevant point of time. The Courts
below convicted the petitioner basing on conjecturers and
surmises and there was no negligence proved because the
accident took place due to burst of front tyre. So, the Courts
below erred in convicting the appellant, as such, the Revision
Case is liable to be allowed.
10) Sri Y. JagadeeswaraRao, the counsel, representing
the learned Public Prosecutor, would submit that both the Courts
below recorded valid and tenable reasons to negative the
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contentions of the accused and appellant. There was cogent
evidence before the trial Court to show that the accused was the
driver of the crime vehicle at the time of offence in question and
he driven the same in a rash and negligent manner. There was
oral evidence as well as the Dying Declaration of one of the
deceased to prove the case against the Revision Petitioner. Both
the Courts below considered the evidence in proper perspective
and recorded cogent reasons, as such, Revision Case is liable to
be dismissed.
11) To appreciate the contention of both parties, I would
like to refer here the substance of the case. The case of the
prosecution is specific that the accused was the driver of the
tractor bearing No.AP 5 B 7242 and he allowed 30 persons in
the trailer bearing No.AP 5U 3487 annexure to the tractor from
Devaguptham to go to marriage venue in Venkateswara Swamy
Temple in Amalapuram on 21.08.2002 and he driven the vehicle
in a rash and negligent manner and as such, the left front tyre
of the truck suddenly burst, as a result, five passengers died in
the accident and P.Ws.1 to 9 received injuries. A Constable i.e.,
P.W.11, who was followed the tractor, witnessed the occurrence.
This is the sum and substance of the case of the prosecution.
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So, allegations against the present petitioner before the trial
Courts were for causing death of five persons by his rash and
negligent act and further for causing simple injuries and
grievous injuries to as many as nine persons. There was also an
allegation that he had no valid driving license whatsoever at the
time of offence in question. So, to succeed in the case alleged
against the Revision Petitioner before the trial Court, the
prosecution was supposed to prove the fact that the accused
was driving the vehicle in question at the time of accident and
that he driven the same in a rash and negligent manner and
that on account of the rash and negligent act of the Revision
Petitioner, Deceased Nos.1 to 5 died and that he had no valid
driving licence at the time of offence in question.
12) Admittedly, the prosecution examined as many as
29 persons to prove the guilt against the accused and got
marked several exhibits. P.Ws.1 to 9 are the injured persons.
P.W.10 hearsay witness. The prosecution projected P.Ws.11,
12, 13, 14, 15 and 16 as direct witnesses to the occurrence.
P.W.17 is the Gram Panchayat Assistant of Pallamkurru.
Prosecution examined P.Ws.19 to 24 and 26, the medical
officers. P.W.25 is Motor Vehicle Inspector. P.W.27 is the Head
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Constable. P.W.28 is the Mandal Executive Magistrate, who
conducted inquest and P.W.29 is the Investigating Officer. The
prosecution got marked Exs.P.1 to P.10, the statements of
P.Ws.1 to 9 recorded during the investigation because they did
not support the case of the prosecution. Exs.P.11 to P.14 are
the relevant portion of four inquest reports. Exs.P.15 to P.29
are the wound certificates of injured persons. Exs.P.30 to P.33
and P.36 are the postmortem certificates of the deceased.
Ex.P.34 is the analysis report. Ex.P.35 is the certificate issued
by the Motor Vehicle Inspector. Ex.P.37 is the report given by
P.W.16 to the Sub Inspector of Police. Ex.P.38 is the inquest
report pertaining to Badugu Dhana Lakshmi. Ex.P.39 is the
hospital intimation. The crucial document that was marked by
the prosecution is Ex.P.40, statement given by one of the
deceased to the Station House Officer, which was treated as
Dying Declaration by the Courts below. Ex.P.41 is the F.I.R. and
Ex.P.42 is the rough sketch. Prosecution exhibited Exs.P.43, 45
to 47, the death intimations pertaining to the deceased. Ex.P.44
is the altered F.I.R. The accused got marked Ex.D.1, a portion of
statement of P.W.14 by way of contradiction.
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13) In the light of the allegations against the Revision
Petitioner before the trial Court and in the light of the findings of
the Courts below while deciding the legality, propriety and
regularity of the judgment of the Appellate Court, it is within the
provisions of this Court to look into as to whether the
prosecution before the trial Court is able to establish the fact
that the accused was the driver of the offending vehicle at the
time of accident and if so, whether he caused death of five
persons and injuries simple and grievous to nine persons and
whether he driven the vehicle without having any proper driving
licence. This thing is to be gone into while deciding the legality
and propriety of the judgment of the Appellate Court.
14) Admittedly, it is a case where P.W.1 claimed to be
the injured and who travelled in the offending vehicle, did not
support the case of the prosecution as regards the identity issue
is concerned. So, for the better appreciation, I would like to
refer here the evidence of P.Ws.1 to 9.
15) It is the evidence of P.W.1 that about 2 years ago
herself and 40 persons were going to Amalapuram from
Devaguptham to attend the marriage of her eldest sister's
daughter and when they reached red-bridge at Amalapuram the
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tractor and trailor fell in to the canal there and she lost her
conscious and she do not know how the tractor fell into the
canal and she regained conscious at Govt. Hospital,
Amalapuram. Due to the accident her left leg was broke and
she was examined by the police and they recorded her
statement.
16) It is the evidence of P.W.2 that about 2 years ago
while she along with about 30 persons were coming to
Amalapuram from Devaguptam (V) to attend the marriage. By
the time the tractor in which they were travelling reached to
Kamanagaruvu (V). It fell in the canal and she do not know how
the accident took place and she was shifted to the Govt.
Hospital, Amalapuram and she sustained injuries on her waist
and shoulder and she do not know driver of the said tractor and
she was examined by the police and they recorded her
statement.
17) It is the evidence of P.W.3 that about two years ago
while she along with some persons were coming to Amalapuram
from Devaguptham (V) to attend a marriage in a tractor and
when they reached to a village, the tractor fell into a canal and
subsequently she regained conscious at hospital. Since driver of
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the said tractor not belongs to their village, she does not know
him. In the said accident leg of P.W.1 was broken and police
examined and recorded her statement.
18) It is the evidence of P.W.4 that on 21-8-2002 she
along with P.Ws.1 to 3 and others nearly 30 persons started
from Devaguptham (V) on a tractor to come to Amalapuram for
the marriage and at about 6-00 P.M. when they reached
Kamanagaruvu (V), the tractor with trailor turned turtle and fell
into the river and her right leg was broken and the persons who
were travelling in the said tractor sustained injuries and some of
persons become unconscious and she was referred to Govt.
Hospital, Amalapuram and she regained conscious and some of
persons who sustained injuries and fracture were also admitted
in the hospital and the tractor was proceeding in speed manner.
19) It is the evidence of P.W.5 that about 3 years ago
she along with some 20 or 30 persons were coming to
Amalapuram in a tractor from Devaguptham (V) and by the time
they travelled some distance as one of the tyres of the tractor
burst, the tractor fell into river and she sustained an injury on
her chest. They herself and others who sustained injuries were
brought to Amalapuram hospital and subsequently they joined in
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Chiranjeevi Raju's hospital and she does not know the driver of
the said tractor and police recorded her statement.
20) It is the evidence of P.W.6 that about 3 years ago
she along with 30 persons in order to come to Amalapuram to
attend a marriage boarded a tractor in Devaguptham (V) and
when they reached nearby red-bridge at Amalapuram tube of
tractor was burst so that the tractor with trailor fell into the river
by the side of road and they all were drowned into the water
and they regained conscious in a hospital, Amalapuram and she
sustained injury on the right side buttock and she do not know
the driver of the said tractor, so also its number.
21) It is the evidence of P.W.7 that about 3 years ago
she along with P.Ws.1 to 5 and others in order to come to
Amalapuram to attend the marriage, all boarded the tractor at
Devaguptham (V) and when the tractor reached nearby
Kamanagaruvu (V) at about 5-30 P.M. one of the tube of the
tractor was burst so that the tractor fell into the canal and the
persons who travelled in the tractor drowned and some of the
persons received inures and she received injuries on her neck
and water entered into her ears thereby she suffered ear pain
and she do not know driver of the said tractor by then.
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22) It is the evidence of P.W.8 that about more than 2
years ago she along with some others started from Devguptham
(V) to come to Amalapuram by a tractor to attend the marriage
and when they reached Kamanagaruvu (V), one tube of the
tractor was burst and on that the tractor-cum-trailor fell into the
canal situated by the side of road. She sustained simple injuries
on her leg and the persons who travelled in the tractor also
sustained injuries and they were all shifted to Area Hospital,
Amalapuram and she do not know driver of the tractor and since
tyre of the tractor was burst, so that the accident took place.
23) It is the evidence of P.W.9 that marriage of his
daughter was performed about 3 years ago and on the date of
the alleged accident he along with their men were coming on
tractor-cum-trailor from Devaguptham (V) and when they
reached near Kamanagaruruvu(V), front tyre of the tractor was
burst. On that the tractor-cum-trailor fell into the canal which is
situated by the side of Kamanagaruvu (V) road and the police
joined him and others who sustained injuries in the accident in
the hospital and he also sustained injuries on his leg and the
said tractor belongs to the accused and one Bonthu Nageswarao
arranged the said tractor and he do not know, who was the
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driver of the said tractor on the date and time of accident. The
persons who travelled in the said tractor also sustained some
injuries, as one of the tyres of the tractor was burst, so that the
accident took place.
24) It is to be noticed that simply because P.Ws.1 to 9
did not identify the accused as that of the driver of the offending
vehicle in question, their evidence cannot be disbelieved
regarding other aspects. Their evidence is liable to be taken
into consideration as regards the injuries spoken by them and
further the evidence of P.W.4 that the tractor was proceeding in
a speedy manner cannot be disbelieved simply because, he did
not identify the driver. So, the prudent course is to look into the
other evidence available on record to know what is the evidence
that proves the fact that the accused was the driver of the
offending vehicle. Keeping in view now, it is prudent to look into
the other evidence. P.W.10 is the hearsay witness, who
deposed that about three years ago at 5-00 P.M. while he was at
his house, he heard some sound, he came out the house and
noticed a tractor fell into the canal and noticed some persons
who were lifted from the canal. Even he did not testify the
name of the accused.
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25) Now coming to the evidence of P.W.11, 12, 13, 14,
15 and 16, it is basing on their evidence that the Courts below
gave findings against the Revision Petitioner. Now it is pertinent
to look into the evidence. Turning to the testimony of P.W.11,
who claimed to be a Police Constable and who followed the
offending vehicle on a two wheeler, he deposed that on
21.08.2002
at about 5-00 P.M. he was returning from the house
to go to Amalapuram Town Police Station. At 5-45 P.M. he
reached nearby Satyanarayana Rice Mill at Kamanagaruvu
village. Then he found a front left wheel of the tractor was burst
and the driver of the tractor tried to control the vehicle but it
proceeded to some extent and as he could not control the same,
the tractor-cum-trailor fell into the canal which is situated left
side of the road. By then, he was coming on his scooter and on
seeing the same, he raised cries. With the help of the persons
gathered there, they lifted the trailor and saved 30 persons who
were travelling in the trailor. Then, after informing the same to
D.S.P., he sent the injured to the hospital by autos and other
means. Number of the tractor is 7242. Accused was driving the
tractor by then in a speedy manner and he can identify the
driver of the said tractor and accused is the driver.
26) Turning to the evidence of P.W.12, his evidence is
that on 21.08.2002 in order to attend his relatives' marriage,
their family members along with P.W.9 started on a tractor to go
to Amalapuram. The said tractor did not reach to Amalapuram.
Then he (P.W.12) and his relatives proceeded to the red bridge
by scooter and noticed that the tractor fell into the canal and
some of the persons were shifted to the hospital from the
accident place. Then he rushed there. Some of his relatives
joined in the Area Hospital, Amalapuram, some of them joined
in Care Hospital and some of them were shifted to Kakinada.
His daughter Vijayalakshmi sustained injuries and she joined in
Care Hospital, Amalapuram and subsequently she died. He came
to know from the injured that due to burst of tyre of tractor, and
as it was proceeding in a speedy manner, they fell into the
canal. Accused is the driver of the tractor. The accused house
is situated nearby his house and he was present when the
tractor started from Devaguptham and he cannot say the
number of the tractor.
27) Turning to the evidence of P.W.13, the marriage of
P.W.9's daughter was performed about three years ago at
Amalapuram. On the date of accident, his wife and some others
started from Devaguptham in a tractor to go to Amalapuram.
The tractor belongs to the accused and he was present at the
time of starting of the tractor from Devaguptham. Later, one
Katta Murali telephoned to him that accident took place on the
way to Challapalli. Then he rushed to the scene and noticed the
tractor-cum-trailor fell into the canal by the side of the road. He
did not enquire as to how the accident took place.
28) Coming to the evidence of P.W.14 on 21.08.2002 his
wife in order to attend the marriage of daughter of P.W.9,
boarded the tractor at Devaguptham. The said tractor reached
Samansa village and then left front wheel of the tractor was
burst and it fell into the canal. Accused was the driver of the
tractor at the time of accident. Then he along with his friend
started on Luna moped and reached the accident spot. By then
the tractor crossed them and after proceeding to some extent,
accident took place. He along with some others shifted the
tractor-cum-trailor and the persons. There may be 40 persons
travelling in the tractor. On 27.08.2002 his wife died while
undergoing treatment in Care Hospital, Amalapuram. He can
identify the accused as driver of the tractor and he was driving
the vehicle in a speedy manner.
29) According to the P.W.15, he and some others
boarded a tractor in Devaguptham and it reached
Kamanagaruvu village, accident took place. He came to know
about the same by Katta Murali Krishna. His wife received
injuries. On 28.02.2002 she died. Accused is the driver of the
tractor. The accused used to drive the vehicle in a speedy
manner, so the accident took place.
30) Coming to the evidence of P.W.16, the marriage of
daughter of P.W.9 took place on 21.08.2002. He sent his wife
to the marriage on a tractor, but, she did not attend the
marriage. The tractor in which she was travelling met with an
accident. Then he rushed to the Government Hospital,
Amalapuram. His wife informed him that the accident took place
as the accused drove the tractor in a speedy manner. While
taking treatment in the hospital, she died. He came to know
that the accused was the driver of the tractor.
31) As seen from the cross examination part of P.W.11,
they remains nothing to disbelieve his evidence. What the
accused was able to elicit from his mouth that prior to the
accident, he does not know the accused. It is to be noticed that
the incident in question happened during brought day light. So,
when P.W.11 was following the tractor on his Moped and when
he was a Constable and when he rushed to the accident spot on
seeing the accident, it is quite natural for P.W.11 to identify the
accused. Since, so far as the identity aspect is concerned, this
Court could not find any abnormality in the evidence of P.W.11.
Similarly, it is a case where P.W.12 categorically testified that he
was present when the tractor had started from Devaguptham
and by then the accused was the driver of the vehicle. Though,
he did not witness the accident in question, but, according to
him at the starting point, accused was the driver. It is not the
case of the accused or evidence of P.Ws.1 to 9, the injured, that
on the transit the driver of the vehicle was changed. So, in so
far as the identity of accused by P.W.12 is concerned, the
evidence of P.W.12 is found to be reliable in my considered
view.
32) Even according to testimony of P.W.13 at the time of
starting of the tractor by the accused after 40 persons boarded
in the tractor, he was physically present. So, P.W.13 also
testified the fact that accused started the tractor with 40
persons to attend the marriage. Turning to the evidence of
P.W.14, he is person, who deposed that he along with his friend
started on a Lune Moped and the accused crossed them by
driving the tractor-cum-trailor and after passing some distance,
the tractor met with accident. So, the evidence of P.W.14 also
categorically present consistent version as regards the fact that
the accused was the driver of the vehicle in question when it
was started. Though, Ex.D.1 negatived that he was a direct
witness to the accident in question, but Ex.D.1 did not negative
the fact that he witnessed when the accused started the tractor
as a driver in the village.
33) Admittedly, the evidence of P.W.15 is hearsay in
nature. Similar is the case in respect of the evidence of P.W.16.
On analyzing the evidence of P.Ws.11 to 14, this Court has no
reason to disbelieve their testimony. Apart from this, one
cannot deny the fact that Ex.P.40 is the statement given by
Pithani Sai Lakshmi, who was also one of the deceased and her
statement was recorded by the Station House Officer,
Amalapuram Taluk Police Station on 21.08.2002. So after
giving her statement she died. According to Ex.P.40, it is the
statement given by Pithani Sai Lakshmi narrating the fact that to
attend a marriage they engaged a tractor and the accused was
the driver of the tractor. Both the Courts below treated
Ex.P.40 as that of a Dying Declaration. In my considered view,
both the Courts below rightly relied upon Ex.P.40 treating it as a
Dying Declaration, which reveals the name of the Revision
Petitioner as a driver of the tractor. So, in so far as the identity
of the accused as that of the driver of the offending vehicle at
the time of accident is concerned, there was cogent evidence
available on record, though P.Ws.1 to 9 did not speak about the
identity of the accused. The Courts below, in my considered
view, rightly relied upon the evidence of P.Ws.11 to 14 and
Ex.P.40 Dying Declaration in this regard.
34) So, in my considered view, the prosecution was able
to establish and prove the fact that the accused was driving the
offending vehicle at the time of accident.
35) Now coming to the rash and negligent act alleged
against the Revision Petitioner though P.W.4 did not speak
about the identity aspect of the accused, categorically deposed
during the course of chief examination itself that the tractor was
proceeding in a speedy manner at the time of accident. In this
regard, no contraversion was suggested to P.W.4. Turning to
the evidence of P.W.11, he testified that accused was driving the
tractor by the time of accident in a speedy manner. Nothing is
elicited during the course of cross examination of P.W.11 also in
this regard to disbelieve his testimony. Apart from this, there is
evidence of P.W.15 as regards the earlier instances that the
accused has no sufficient experience in driving the tractor and
more over he used to drive the tractor in a speedy manner.
Leave a part the evidence of P.W.15 in this regard which can be
taken as hearsay in nature, there is evidence of P.W.25 the
Motor Vehicle Inspector to the effect that having received the
requisition from the Sub Inspector of Police, he inspected the
crime vehicle i.e., tractor B/No.AP 5B 7242 and trailor B/No.AP
5U 3487 on 24.08.2002. He found the breaking system intact
and the accident was not due to mechanical defect of the
vehicle. Due to sudden depletion of the tractor, as front left tyre
was burst, it is observed that the driver drove the vehicle,
though the said tyre was in boiled condition and the driver did
not exercise reasonable and diligent care. By virtue of evidence
of P.W.25, it is crystal clear that the front left tyre of the vehicle
in question was in boiled condition, but in spite of the same,
accused driven the vehicle in a speedy manner.
36) Apart from this, it is borne out from the evidence
available that accused driven the vehicle without having any
valid driving licence. Either during the cross examination of the
prosecution witnesses or during the course of Section 313
Cr.P.C. examination, accused had no substantial defence at all.
He has no defend to say as to whether he was not driver of the
offending vehicle at the time of accident. His defence appears
to be evasive. He was simply denying the case of the
prosecution. It is a case that P.W.11 who had no motive at all
to depose false against the accused, testified the fact that the
accused was driving the vehicle in a speedy manner. Apart from
this, there is evidence of P.W.4 that the vehicle was being driven
in a speedy manner. So, the facts and circumstances are such
that the accused having got knowledge that the front left tyre of
the vehicle was in boiled condition, did not exercise proper
precautions and driven the vehicle in a speedy manner. So, the
evidence on record, in my considered view, categorically proves
that the accused driven the vehicle in a rash and negligent
manner thereby the accident in question was occurred. Accused
was not supposed to drive the vehicle in a speedy manner when
the tyre was in boiled condition. Even the accused was not
supposed to start the vehicle and he was not supposed to put
the vehicle on record, as the tyre of the vehicle was in boiled
condition, which may burst at any time, if the vehicle was put in
use on the road. The facts and circumstances are such that the
accused was not able to control the vehicle and the tractor fell
into the canal on the left side. So, when the accused had every
knowledge that the tyre of the vehicle was in boiled condition,
he was not supposed to drive the vehicle in a speedy manner.
Had he driven the vehicle in a reasonable speed looking into the
condition of the tyre, he would have controlled the vehicle when
the tyre was burst. Even according to evidence of P.W.25, the
Motor Vehicle Inspector, the breaking system was in good
condition and they were found intact. So virtually, the accident
was occurred as the left front tyre of the vehicle was burst. The
over act of the accused in driving the vehicle when the front left
tyre was in boiled condition itself is a negligent act in my
considered view. So, there was every possibility for the accused
to control the vehicle, if he was driving the vehicle in a normal
speed having got knowledge that the tyre was in boiled
condition. Apart from this, the very act of the accused to step
into the driver seat to drive the tractor, though by then he had
no valid driving licence, itself is a negligent act. As the accused
did not possess any valid driving licence, he had every
knowledge that he will not be able to drive the vehicle in the
manner expected from a skilled driver, who has driving licence,
as such, this itself is sufficient to say that accused did rash and
negligent act.
37) Having regard to the above, I am of the considered
view, that the evidence on record before the trial Court is
sufficient to say that the accused driven the vehicle in a rash
and negligent manner and caused the accident in question.
38) Needless to point out here that there is voluminous
evidence on record to prove the simple or grievous injuries, as
the case may be, received by P.Ws.1 to 9. In this regard, the
prosecution examined several witnesses. P.W.19 is examined
by the prosecution to prove the injuries on P.W.1 and P.W.2.
According to him, Ex.P.15 is the wound certificate of P.W.1 and
Ex.P.16 is the wound certificate of P.W.2. He also examined
L.W.6 and issued Ex.P.17. He also examined Bonthu Babu and
issued Ex.P.18. He also examined P.W.3 and issued Ex.P.19.
He examined P.W.4 and issued Ex.P.12 and L.W.4-Guvvala
Seethalakhsmi and issued Ex.p.21.
39) P.W.20 deposed about the examination of L.W.6-
Bokka Surya Ratnam and his issuance of Ex.P.22 wound
certificate. He further spoken the fact that he examined P.Ws.5,
6, Dommeti Satya Gayathri Devi, L.W.11-Bonthu
Mangayyamma, L.W.19-Demmeti Chandra Sekhar, Bonthu Baby
Kumari and Katta Nagar Durga. He further spoken about the
issuance of Exs.P.23 to 29 wound certificates. P.W.20
conducted postmortem on the dead body of deceased No.1 and
issued Ex.P.30 postmortem report. P.W.22 conducted
postmortem over the dead body of deceased No.2 and issued
Ex.P.31 postmortem report. P.W.23 conducted postmortem
over the dead body of deceased No.3 and issued Ex.P.32
postmortem report. P.W.24 conducted autopsy over the dead
body of deceased No.5 and issued Ex.P.33 postmortem report.
P.W.26 conducted postmortem over the dead body of deceased
No.4 and issued Ex.P.36 postmortem report. P.W.18 is the
Mandal Executive Magistrate, who conducted inquest regarding
the death of four and he also conducted inquest on the dead
body of the first deceased. P.W.28 is the person, who
conducted inquest over the dead body of the deceased No.5.
40) So, by virtue of the evidence of P.Ws.19 to 24 and
P.W.26 and the wound certificates under Exs.P.15 to 29 and
postmortem reports, the prosecution proved that the death of
five deceased were on account of the fatal injuries received in
the accident, which was caused by the accused. So, there was a
direct connection between the accident and the cause of death
of deceased Nos.1 to 5. So, in my considered view, the
prosecution was successful in proving the fact that on account of
the rash and negligent act of the accused, there were deaths of
five persons i.e., deceased Nos.1 to 5 and there were simple or
grievous injuries, as the case may be, to P.Ws.1 to 9.
41) Further the accused had no say that he driven the
vehicle with a valid driving license. His defence was evasive and
he was not certain about his defence. So, in my considered
view, the prosecution before the trial Court was successful in
establishing the guilt of the accused under Section 304-A, 338
and 337 of IPC and further Section 3 and 4 r/w 181 of M.V. Act
is beyond reasonable doubt. The learned II additional District &
Sessions Judge, Amalapuram, rightly appreciated the
contentions canvassed by the appellant as against the judgment
of the trial Court. The contention of the Revision Petitioner that
there was no identity established by the prosecution is devoid of
merits. His contention that there was no possibility for the
witnesses, who supported the case, to know the driver of the
tractor is without any basis. There was cogent evidence on
record to prove that the accused was the driver of the offending
vehicle and he driven the same in a rash and negligent manner.
42) According to the ground No.4 of the Revision, the
negligence on the part of the driver was not proved because
accident took place due to burst of the front tyre, it means that
accused admitted that he was the driver of the offending
vehicle. If somebody was driving the vehicle other than the
accused and accused was brought into picture, the Revision
Petitioner should have been in a position to ventilate such
defence before the trial Court. So, at one hand the accused
contended that his identity was not there. At another hand he
contended that the accident was happened as the front tyre was
burst. Both the said contentions were not found favour by the
Courts below on analyzation of the evidence in a proper way.
43) Having regard to the above, virtually there are no
merits in grounds of revision and in my considered view, the
judgment of the learned II Additional District & Sessions Judge,
Amalapuram, West Godavari District, dated 13.04.2007, does
not suffer with any irregularity, impropriety and illegality. In my
considered view, he rightly looked into the case of the
prosecution and the defence of the accused before the trial
Court and he dismissed the appeal with valid reasons,
confirming the judgment of the trial Court. However, he took
into consideration some lenient view and modified the sentence
imposed against the appellant. Having regard to the above, I
am of the considered view that the Revision Case must fail.
44) In the result, the Criminal Revision Case is
dismissed.
45) The Registry is directed to take steps immediately
under Section 388 Cr.P.C. to certify the judgment of this Court
to the trial Court and on such certification, the trial Court shall
take necessary steps to carry out the sentence imposed against
the petitioner/appellant in C.C. No.423 of 2022, dated
13.12.2005 and to report compliance to this Court.
Consequently, miscellaneous applications pending, if any,
shall stand closed.
________________________
JUSTICE A.V. RAVINDRA BABU
Dt.31.10.2022.
PGR
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL REVISION CASE NO.575 OF 2007
Date: 31.10.2022
PGR
