Korada Pydiraju vs The State Of A.P.
2023 Latest Caselaw 321 AP

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

        CRIMINAL REVISION CASE NO.1032 OF 2009

ORDER:-

     This Criminal Revision Case is filed by the petitioner, who

was the appellant in Criminal Appeal No.140 of 2005, on the file

of I Additional District and Sessions Judge, Vizianagaram,

challenging the judgment, dated 24.06.2009, whereunder the

learned I Additional District and Sessions Judge, Vizianagaram,

dismissed the Criminal Appeal filed by the appellant by confirming

the judgment of the trial Court in C.C.No.332 of 2004 wherein the

accused was found guilty for the offences under Sections 304-A,

338 and 337 of Indian Penal Code ("I.P.C." for short) and was

convicted and sentenced to suffer rigorous imprisonment for six

months and to pay a fine of Rs.1,000/- in default to suffer for

simple imprisonment for two months for the offence under

Section 304-A of I.P.C. and sentenced to pay a fine of Rs.1,000/-

in default to suffer simple imprisonment for two months for the

offence under Section 338 of I.P.C. and further sentenced to pay

a fine of Rs.500/- in default to suffer simple imprisonment for one

month for the offence under Section 337 of I.P.C.
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      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 State, represented by the Sub-Inspector of Police,

Denkada Police Station, filed a charge sheet pertaining to Crime

No.50 of 2003 of the said police station alleging the offences

under Sections 304-A, 338 and 337 of I.P.C.

      4)     Briefly to state the case of the prosecution is as

follows:

      Accused is the driver of Auto bearing No.AP 35 T 5128. He

drove the auto from Nathavalasa to Vizianagaram on 16.06.2003.

On 16.06.2003 one Sheik Srinivasa Rao (hereinafter will be

referred to as "deceased") was proceeding towards Nathavalasa

from Vizianagaram on his motorcycle bearing A.P.35 C 3374 by

keeping on left side. L.W.3-Meesala Ramu was also sitting as

pillion rider. Accused drove the auto rashly and negligently and

hit the motorcycle of the deceased in opposite direction at 4-30

P.M. As a result, the deceased received severe injuries and died

on the spot.   L.W.3, the pillion rider of the motorcycle received

grievous injuries. L.Ws.1 and 2-Penumajji Dalinaidu and Vasi

Chinnayya respectively, the passengers in the auto also received

injuries.   Injured   were        shifted    to   Government       Hospital,
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Vizianagaram. Accused also received injuries. Having witnessed

the occurrence, L.W.4-Lenka Rajeswari intimated the incident to

L.W.6-Shaik Sarvor and others. On receipt of information, L.W.17,

concerned police rushed to the hospital and recorded the

statement of L.W.1 and registered a case in Crime No.50 of 2003

under Sections 304-A, 338 and 337 of I.P.C. and took up

investigation.   He conducted inquest over the dead body of the

deceased in the presence of mediators and direct witnesses. He

also observed the scene of occurrence in the presence of

mediators. He got conducted postmortem to the dead body of the

deceased. He arrested the accused on 21.06.2003 and sent him

for remand.      The Motor Vehicles Inspector inspected the crime

vehicle and opined that the accident was not due to any

mechanical defects of the crime auto. L.W.11-G. Venkataramana,

the owner of the auto confirmed that the accused was the driver

of the auto on the date of offence. The cause of death of deceased

was due to haemorrhage and shock and due to sudden ante

mortem injuries to the brain. The Medical Officer, who treated the

injured, issued wound certificates stating that the first injured and

second injured received simple injuries and third injured received

grievous injuries. The Radiologist took X-ray on the third injured.

Hence, the charge sheet.
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     5)    The learned Additional Judicial Magistrate of First

Class, Vizianagaram in C.C.No.362 of 2003, took cognizance

against the accused for the offences under Sections 304-A, 338

and 337 of I.P.C. and after furnishing copies of documents,

examined the accused under Section 251 of the Code of Criminal

Procedure ("Cr.P.C." for short) 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. Thereafter, C.C.No.362 of 2003

was transferred from the Additional Judicial Magistrate of First

Class, Vizianagaram to the Court of Special Judicial Magistrate of

First Class (Excise), Vizianagaram and was renumbered as

C.C.No.332 of 2004 and proceeded with the trial.

     6)    In order to prove the guilt of the accused, the

prosecution before the Court below examined P.Ws.1 to 15 and

got marked Exs.P.1 to P.20. After 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

stated that he has no defence evidence.

     7)    The learned Special Judicial Magistrate of First Class

(Excise), Vizianagaram, on hearing both sides and on considering

the oral as well as documentary evidence, found the accused
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guilty of the offences under Sections 304-A, 338 and 337 of I.P.C.

and after questioning him about the quantum of sentence,

convicted him under Section 255 (2) of Cr.P.C. sentenced him as

above.     Challenging the judgment of the trial Court, the

unsuccessful accused filed the Criminal Appeal No.140 of 2005

before I Additional District and Sessions Judge, Vizianagaram,

which came to be dismissed on merits on 24.06.2009. Challenging

the same, the present Criminal Revision case is filed.

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

the point that arises for consideration is as to whether the

judgment, dated 24.06.2009 of the learned I Additional District

and Sessions Judge, Vizianagaram in Criminal Appeal No.140 of

2005 suffers with any illegality, irregularity and impropriety and

whether there are any grounds to interfere with the judgment of

the   learned   I   Additional   District   and   Sessions   Judge,

Vizianagaram?

Point:-

      9)    Sri G.V. Sailendra, learned counsel, representing the

learned counsel for the petitioner, would contend that there are

discrepancies in the evidence of P.Ws.1 and 2 which were not

considered by the Courts below properly.     There was no chance

for P.W.1 to witness the occurrence, as he was sitting in the Baby
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seat opposite to the seat of the driver, as such, he would have no

chance to observe what was happened in the front of the auto.

The prosecution did not examine other persons, who travelled in

the auto and there was discrepancies as how many persons

travelled in the auto. As per the evidence of investigating officer,

the road was a busy road and several government offices are

located. So, there was no possibility for the accused to drive the

auto in high speed. Both the Courts below failed to consider that

the burden lies on the prosecution to prove the guilt against the

accused, as such, the judgment of the appellate Court is not

sustainable. Therefore, it is liable to be interfered.

      10)    Sri   Y.   Jagadeeswara      Rao,    learned   counsel,

representing the learned Public Prosecutor, would contend that

P.Ws.1 and 2 are the injured witnesses and P.W.2 is defacto-

complainant and P.W.3 is the pillion rider of the motorbike and

they categorically testified that the accused was the driver of the

auto and he drove the same in a rash and negligent manner and

caused the death of deceased and further caused injuries to

P.Ws.1 to 3. The prosecution adduced cogent evidence before the

trial Court and both the Courts below rightly convicted the

accused, as such, the Criminal Revision Case is liable to be

dismissed.
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      11)   P.W.1 is no other than one of the passengers, who

claimed to have travelled in the auto and he was the injured.

P.W.2 is another passenger, who claimed to have travelled in the

auto and he was also the injured. P.W.3 is the pillion rider of the

motorbike, which was driven by the deceased. P.W.4 claimed to

be an independent witness.

      12)   Now, coming to the evidence of P.W.1, he deposed

that at about 1 ½ years prior to the date of his examination, on

one day about 4 or 4-40 P.M., he boarded an auto driven by the

accused at Nathavalasa to go to Vizianagaram and that the

accused was driving the auto in high speed while crossing the

school at Denkada and hit a Hero Honda Motorcycle coming in

their opposite direction, that the driver of the motorcycle fell

down on the road at a distance of 10 feet from the scene of

offence and died instantaneously. He also deposed that the pillion

rider also fell down and sustained injuries and that he received

injuries to his left rib and left leg due to the accident. One

Dalinaidu (PW2) also received injuries and that they were shifted

to the hospital.

      13)   P.W.2, the defacto-complainant, testified that on

16.06.2003

which fell on Monday at about 3-45 P.M., he boarded

an auto A.P.35 T 5128 driven by the accused at Nathavalasa to

reach Vizianagaram. He sat on the right side of the driver in the

front seat of the auto. When their auto reached near the hospital

at Denkada, due to negligent driving of the driver of the auto it hit

against the motorcycle bearing No.AP 35 C 3374 which was

coming in their opposite direction and that the motorcycle rider

died on the spot. It is his further evidence that their auto was

going on the right side of the road at the time of incident and that

when the auto dashed against the motorcycle, the handle bar of

the motorcycle hit him and that he received bleeding injuries to

his right leg, his head and waist. P.W.1 who is travelling in the

auto also received injuries. At that time, seven passengers

including himself were travelling in the auto and the injured were

shifted to hospital. At the hospital, the police came and recorded

his Ex.P.1 statement.

14) The pillion rider of the motorcycle, who is P.W.3,

testified that about 2 years prior to the date of his examination,

the deceased who is an RMP doctor in Rellivalasa left for

Vizianagaram along with himself for the purpose of purchasing

medicine on his motorcycle. After purchase of medicine while

they were returning on the said motorcycle at 4-30 P.M., an auto

coming in their opposite direction hit against their vehicle. Then

he fell down, received injuries and lost consciousness. He also

deposed that the deceased received head injury and died on the

spot. At the time of incident, the deceased was riding the vehicle

at normal speed, but the auto driven by the accused came at high

speed. They were shifted to Government Headquarters Hospital,

Vizianagaram and from there, he was shifted to KGH,

Visakhapatnam, for better treatment.

15) P.W.4 deposed in substance that about 2 years ago at

4-00 P.M., while she was drawing water at the bore well situated

at Mandal Office, Denkada, she heard some sound from the road.

Then she rushed there and found a dead body and a motorcycle

was lying on the road. She identified the dead body as that of

Sheik Srinivasa Rao and informed the incident to his father over

phone. She came to know that the auto hit the bike in a rash and

negligent manner.

16) P.Ws.5 and 6 are the mediators for the scene

observation report under Ex.P.2 and they deposed about the

same.

17) P.W.7, inquest panchayatdar, supported the case of

the prosecution with regard to the inquest under Ex.P.3.

18) P.W.8, the owner of the offending auto, testified that

on the date of offence, accused was the driver of the auto bearing

No.A.P.35 T 5138 and he informed him that he committed an

accident near Chinthadivada Village. Then he gone there and

found the dead body at the scene of offence.

19) P.W.9, the Medical Officer, spoken about the

postmortem examination over the dead body and issuance of

Ex.P.4.

20) P.W.10, Radiologist, deposed about taking of X-rays

on P.W.3 and CT scan and testified that Ex.P.5 is the CT scan

report and Ex.P.6 is X-ray report. He testified about the fracture

injury received by P.W.3.

21) P.W.11 claimed that he examined P.Ws.1 to 3 and

issued Exs.P.9 to P.11 wound certificates. The injuries received

by P.Ws.1 and 2 are simple and the injuries received by P.W.3 are

grievous in nature.

22) P.W.12 spoken about taking of photographs under

Exs.P.12 to P.17 at the scene.

23) Prosecution examined P.W.13, who deposed that he

examined the offending vehicle and issued Ex.P.18 opining that

the accident is not occurred due to any mechanical defects.

24) P.W.14 is the Assistant Sub-Inspector of Police and he

spoken that he came to know about the accident and injured were

sent to the hospital and his going to the hospital and recording

statement of one of the injured and further investigation.

25) P.W.15 is the successor of P.W.14, who obtained

wound certificates and filed charge sheet.

26) Now, in deciding the point for determination, the first

aspect that has to be looked into by this Court is as to whether

the prosecution before the trial Court established the fact that the

accused was driver of the offending vehicle at the time of

accident.

27) P.Ws.1 and 2, the injured, who travelled in the auto

and P.W.3, the pillion rider of the motorcycle, categorically

testified that the accused was the driver of the offending vehicle.

Even P.W.8, the owner of the vehicle, testified that accused was

the driver of the auto at the time of accident. This fact is not in

dispute throughout the trial. Accused did not challenge the

testimony of P.Ws.1 to 3 and P.W.8 in this regard. So, the

prosecution let in cogent evidence to prove the fact that the

accused was the driver of the auto at the time of accident.

28) Now, another aspect that has to be considered by this

Court is as to whether the prosecution has proved that in the

accident the deceased died and P.Ws.1 and 2 received simple

injuries and P.W.3 received grievous injuries.

29) As seen from the evidence of P.Ws.1 to 3, they

spoken about the injuries received by them. Ex.P.1 is the

statement of P.W.2, who is one of the injured and the evidence of

P.W.2 has corroboration from Ex.P.1 statement as regards the

death of deceased. P.W.8, the inquest panchayatdar, spoken

about conducting of inquest by the police in the presence of

mediators and his evidence has corroboration from Ex.P.3 inquest

report. Apart from this, P.W.9, the medical officer, spoken to the

fact that he conducted postmortem examination over the dead

body of the deceased and issued Ex.P.4, the postmortem report,

opining that the death of deceased is due to haemorrhage and

shock due to sudden ante mortem injuries to brain. Apart from

this, there is evidence of P.W.11, the medical officer, who

examined P.Ws.1 to 3 and issued Exs.P.9 to P.11. It means that

P.Ws.1 and 2 received simple injuries and P.W.3 received

grievous injuries. So, the above evidence goes to prove clearly

that in the accident that was occurred on 16.06.2003, P.Ws.1 and

2 received simple injuries and P.W.3 received grievous injuries

and the deceased died on account of multiple injuries received by

him.

30) Now, another crucial aspect that has to be considered

while deciding the point for determination is whether the evidence

adduced by the prosecution proves beyond reasonable doubt that

accused caused the death of deceased and further simple injuries

to P.Ws.1 and 2 and grievous injuries to P.W.3 due to his rash

and negligent act.

31) As already extracted the evidence of P.W.1 means

that accused was driving the auto in high speed while crossing the

school at Denkada and hit a motorcycle coming in their opposite

direction. He spoken to the fact that he travelled in the auto.

The pillion rider of the motorcycle received injuries and the

deceased died at the spot. According to the evidence of P.W.2,

he sat on the right side of the driver in the front seat of the auto

and when their auto reached near the hospital at Denkada,

accused negligently driven the same and hit against the

motorcycle bearing No.A.P.35 C 3374, which was coming in

opposite direction and the rider of the motorcycle died at the

spot. He further testified that the auto was going on the right

side of the road at the time of accident. When the auto dashed

against the motorcycle, the handle bar of the motorcycle hit him,

as such, he received bleeding injuries to his right leg, his head

and waist. The pillion rider i.e., P.W.3 spoken to the fact that

auto came in their opposite direction and hit against their vehicle

and he fell down and received injuries and the deceased received

head injury and died on the spot.

32) Now, admittedly, as evident from the cross

examination of P.W.1, he deposed that he sat in the Baby seat, as

such, there was no possibility for him to observe what was

happened in front of the auto. It is to be noticed that though

there is some discrepancies in the evidence of P.Ws.1 and 2 as

regards actual numbers travelled in the auto, they cannot be a

ground to reject the evidence of the prosecution witnesses. If the

auto is of full of passengers only, there would have been an

occasion for P.W.1 to sit in the Baby seat by facing towards back

side of the auto. However, in my considered view, the inability of

the prosecution to explain exactly how many persons travelled in

the auto would not affect the testimony of P.Ws.1 to 3. Here

P.W.2 claimed that he was sitting by the right side of the driver in

the front seat of the auto. Apart from this, P.W.3 spoken about

the manner of the accident.

33) Now, this Court would like to look into certain further

answers elicited from the cross examination of P.Ws.1 and 2.

Though P.W.1 stated that he was sitting on the Baby seat in the

auto facing rear side of the auto, but, P.W.2 the material witness

and author of Ex.P.1, deposed that on 16.06.2003 at 3-45 P.M.,

he boarded the auto of the accused and he sat on the right side of

the driver in the front seat of the auto. Accused drove the auto in

a rash and negligent manner and when it reached near the

hospital at Denkada, he dashed the motorcycle in opposite

direction. The auto was going in the right side of the road at that

time. The auto dashed the motorcycle and handle bar of the

motorcycle hit him. In the cross examination also he stated that

he sat on a stool placed on the right side of the steering of the

auto. According to P.W.3, the pillion rider, the deceased was

riding the vehicle in a normal speed and the auto came in high

speed and dashed their vehicle in opposite direction.

34) At this juncture, it is pertinent to look into Ex.P.2, the

observation report and Ex.P.20, rough sketch. It reveals that the

road measures a width of 18 feet at the accident spot and it at 3

feet margin on either side. So, even according to the rough

sketch, the deceased must proceed on his right side while coming

from Vizianagaram and the accused was supposed to keep his

auto on the left side of the road while proceeding in opposite

direction. Accident was occurred in the middle of the road.

P.Ws.2 and 3 made a version that the auto was going on the right

side of the road and hit the motorcycle. Even as seen from the

injuries received by P.W.2, they were on the right side of the body

as per wound certificate marked under Ex.P.10. Apart from this,

Exs.P.12 to P.17, Photographs, depicts that the right side front

portion of auto was damaged and the dead body was lying on the

left side of the road. So, it amply proves that the auto hit on the

right side of the motorcycle. The place of accident was towards

right side of the road. Accused was not supposed to drive the

auto on the right side of the road while going to Vizianagaram and

he was not supposed to hit the motorcycle, which was coming

rightly in opposite direction. All these goes to show that the

accused drove the offending auto in a rash and negligent manner

and hit the opposite motorcycle.

35) It is to be noticed that though according to the

evidence the speed of the auto was reduced at the place of

accident spot, but speed cannot be taken as a criteria to decide

rash and negligent act. A person, who is going in high speed,

may take proper care to avoid any rash and negligent act. A

person, who was moving in slow speed, may drive the vehicle in

rash and negligent manner. So, the accused has no business at

all to hit the motorcycle moving on the left side of the road. It is

not the case of the accused that all of sudden the motorcycle of

the deceased came before the auto, as such, he hit the deceased.

The defence of the accused with regard to the manner of accident

is quietly evasive. In my considered view, the evidence on record

cogently proves that the accused drove the auto in a rash and

negligent manner and hit the opposite coming motorcycle, which

resulted into death of the deceased and causing of simple injuries

to P.Ws.1 and 2 and grievous injuries to P.W.3.

36) In my considered view, the learned Special Judicial

Magistrate of First Class (Excise), Vizianagaram, rightly

appreciated the evidence on record and further the learned I

Additional District and Sessions Judge, Vizianagaram also rightly

looked into the evidence on record and recorded cogent reasons

in dismissing the criminal appeal. The sentence imposed against

the petitioner is lesser on side when the offence under Section

304-A of I.P.C. contemplates the punishment as that of up to two

years.

37) Having regard to the overall facts and circumstances,

I see no reason to interfere with the judgment of the learned I

Additional District and Sessions Judge, Vizianagaram, dated

24.06.2009 in Criminal Appeal No.140 of 2005. Accordingly, the

Criminal Revision Case must fail.

38) In the result, the Criminal Revision Case is dismissed.

39) The Registry is directed to take steps immediately

under Section 388 Cr.P.C. to certify the order 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/accused in C.C. No.332 of 2004, dated 24.10.2005 and

to report compliance to this Court.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 24.01.2023.

PGR

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

CRL. REVISION CASE NO.1032 OF 2009

Date: 24.01.2023

PGR