Shaik Chand Basha, vs State Of A.P., Rep By Pp.,
2023 Latest Caselaw 2962 AP

           HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

         CRIMINAL REVISION CASE No.1888 OF 2008

ORDER:

This Criminal Revision Case, under Sections 397 and 401 of

the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C'), is

filed by the petitioner, who was the appellant in Criminal Appeal

No.292 of 2007, on the file of the Court of I Additional District and

Sessions Judge, Guntur (for short, 'the learned Additional

Sessions Judge'), challenging the judgment therein, dated

17.12.2008, whereunder the learned Additional Sessions Judge,

dismissed the Criminal Appeal, confirming the conviction and

sentence imposed against the accused in Calendar Case No.213 of

2006, dated 31.07.2007, on the file of the Court of I Additional

Judicial First Class Magistrate, Tenali (for short, 'the trial Court')

for the offence under Section 304-A of the Indian Penal Code, 1860

(for short, 'the IPC').

2. The parties to this Criminal Revision Case will hereinafter be

referred to as arrayed before the trial Court, for the sake of

convenience.

3. The State, represented by Station House Officer, III Town

Police Station, Tenali filed charge sheet in Crime No.89 of 2006 for

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the offence under Section 304-A against the accused alleging in

substance that the offence took place on Cherukupalli -

Vijayawada State High Way near Sri Anjaneyaswamy Temple of

Tenali III Town Police Station limits. LW.1 - Narumanchi Sasank is

the second son of the deceased and a direct witness to the

occurrence. On 12.04.2006 afternoon at 01:00 p.m. both the

deceased i.e., Narumanchi Lakshminarayana and LW.1 started on

separate bicycles to go to their house via old bridge. The deceased

was proceeding ahead of LW.1. On their way, after passing

Anjaneyaswamy Temple, accused being driver of the Lorry bearing

No.AP31U2113 came behind the deceased at high speed in a rash

and negligent manner, without blowing any horn and dashed

against the cyclist deceased. As a result, the deceased fell down

and sustained injuries. LW.1, second son of the deceased, and

LWs.4 to LW.8 i.e., Ganisetti Malleswari, Matlapudi George, Veddu

Srinivas, Akkala Nageswara Rao and Shaik Basha witnessed the

occurrence. LW.1 shifted the deceased to the Hospital of LW.9 -

Dr. K. Padmanabhaiah and admitted him in the Hospital for

treatment. While undergoing treatment, the deceased died at

03:00 p.m. on the same day. Then, LW.1 turned to the Police

Station and presented a report to LW.16 - ASI, who registered the

FIR and took up investigation. During investigation, LW.16 visited

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the scene of offence in the presence of mediators i.e., LW.11 -

Sistla Muralikrishna and LW.13 - Bhagavathula Ramakrishna. On

12.04.2006 at 03:30 p.m. LW.16 got prepared the observation

report. He also prepared rough sketch of the scene of offence.

Thereafter, LW.16 proceeded to the hospital of LW.9 and, in the

presence of panchayatdars and blood relatives, conducted inquest

over the dead body of the deceased from 05:00 to 07:00 p.m.

Thereafter, he forwarded the dead body for post-mortem

examination. During investigation, he examined LWs.6 to LW.9

and also examined LW.10 - Valuvole Tandavakrishna, owner of

the offending vehicle. LW.14 - Dr. K. Hema, Medical Officer,

conducted autopsy over the dead body and opined that the death

was due to shock and hemorrhage due to multiple injuries. LW.15

- K.G.K. Raju, Motor Vehicle Inspector (MVI), Tenali inspected the

crime vehicle and issued accident report opining that the accident

was not due to any mechanical defect of the crime vehicle. LW.16

arrested the accused on 19.04.2006 and sent him for remand.

Hence, the charge sheet.

4. The learned jurisdictional Magistrate, Tenali took cognizance

of the case under the above provision of law. After appearance of

the accused and after complying the necessary formalities under

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Section 207 Cr.P.C., accused was examined under Section 251

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

for which he denied the same, pleaded not guilty and claimed to be

tried.

5. To bring home the guilt against the accused, the prosecution

before the Court below examined PWs.1 to PW.11 and got marked

Exs.P-1 to P-12.

6. After closure of the evidence of the prosecution, accused was

subjected to examination under Section 313 Cr.P.C with reference

to the incriminating circumstances for which he denied the same

and did not let in any defence evidence.

7. The learned Magistrate, Tenali, on hearing both sides and

after considering the oral and documentary evidence on record,

found the accused guilty of the offence under Section 304-A IPC

and convicted him under Section 255(2) Cr.P.C. After questioning

him about the quantum of sentence, the learned Magistrate

sentenced him to undergo Rigorous Imprisonment for one year

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

Imprisonment for three months for the offence under Section

304-A IPC.

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8. Felt aggrieved of the same, the un-successful accused filed

Criminal Appeal No.292 of 2007 before the learned Additional

Sessions Judge, Guntur, which came to be dismissed on merits.

Further felt aggrieved of the same, the unsuccessful accused in

C.C. No.213 of 2006 and un-successful appellant in Criminal

Appeal No.292 of 2007 preferred the present Criminal Revision

Case.

9. Now, in deciding this Criminal Revision Case, the point that

arises for consideration is as to whether the judgment in Criminal

Appeal No.292 of 2007, dated 17.12.2008, on the file of the Court

of I Additional District and Sessions Judge, Guntur is sustainable

in terms of legality, regularity and propriety?

10. POINT: Sri N. Harinadh, learned counsel, representing

learned counsel for the revision petitioner, would contend that

there was no identification parade conducted by the Investigating

Officer involving PW.1 so as to identify the accused as driver of the

offending vehicle. The Investigating Officer did not seize and

produce the offending vehicle before the Court below. PWs.2 to

PW.4 turned hostile to the case of prosecution. The evidence of

PW.1 had no corroboration from any source. Both the Courts

below erroneously on assumptions and presumptions convicted

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the revision petitioner, as such Criminal Revision Case is liable to

be allowed. In support of his contentions, learned counsel relied

upon the decisions of the Hon'ble Apex Court in Mohanta Lal

Saha v. State of West Bengal and another1, State of Haryana

v. Sher Singh2 and State of Karnataka v. Satish3.

11. Sri Y. Jagadeeswara Rao, learned counsel, representing

learned Public Prosecutor, would contend that PW.1 categorically

deposed that the accused was the driver of the crime vehicle at the

time of incident. Nothing was elicited in his cross-examination to

disbelieve his testimony. The incident was happened in a broad

day light as such there was no necessity to conduct any

identification parade. PW.6, owner of the vehicle, for the reasons

best known, turned hostile and his hostility was proved by the

prosecution by examining the Investigating Officer. PW.6 produced

the C-Book as well as the driving license of the accused before the

Investigating Officer. Later, the accused surrendered before the

Investigating Officer. The Home Guard, who was examined by the

prosecution i.e., PW.7, has categorically spoken about the

involvement of the offending vehicle at the accident spot and by

1 1968 ACJ 124 2 AIR 2009 SC 823 3 (1998) 8 SCC 493

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the time, he has gone to the spot, accused fled away from there.

The details of the ownership and the name of the driver were

clearly mentioned in the Motor Vehicle Inspectors report, who

issued the same after verification of the necessary records. Both

the Courts below rightly recorded cogent reasons to convict the

revision petitioner and as such Criminal Revision Case is liable to

be dismissed.

12. Learned counsel for the revision petitioner, during reply,

would contend that in the event of dismissal of the Criminal

Revision Case, for any valid reasons, the Court may reduce the

term of imprisonment as the revision petitioner is now aged about

60 years and already he served out the imprisonment of more than

one month either during the course of investigation or after

execution of Non Bailable Warrant.

13. Firstly, this Court would like to make it clear that as on

date, the revision petitioner is undergoing imprisonment in the

concerned jail and the circumstances in which he is in jail as of

now are liable to be referred herein. The revision petitioner having

filed the Criminal Revision Case, got suspended the sentence of

imprisonment, never co-operated with the Court for disposal of the

case. His counsel was not at all getting any representation. Under

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the aforesaid circumstances, this Court issued a Bailable Warrant

so as to secure his presence but Police were unable to execute as

his whereabouts were not known to them. Under the

circumstances, this Court issued Non-Bailable Warrant with a

direction to the Police to produce the petitioner before the Court

below for entrustment of the conviction warrant pending disposal

of this Revision. While so, the Police executed the Non-Bailable

Warrant and filed compliance report. So, this is the scenario in

which the petitioner is undergoing sentence as he absconded the

process of law by breaching the terms of bail bond.

14. Now, in the light of the contentions raised, I would like to

appreciate the same. Both the Courts below found favour with the

case of the prosecution. So, the prosecution was supposed to

establish before the Court below the fact that the accused was the

driver of the offending vehicle at the time of accident i.e., on

12.04.2006 at 12:00 noon and he caused the death of the

deceased by driving the vehicle in a rash and negligent manner. As

seen from the evidence of PW.1, he is the son of the deceased. On

12.04.2006, the deceased died in the lorry accident. At about

12:00 noon, he and his father were coming from Viswa College,

near bus stand on two separate cycles towards

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Ramalingeswarapeta and when they reached near to

Anjaneyaswami Temple near old bridge, one lorry which was

coming in speed manner without blowing horn dashed against the

cycle of his father. His father was going at a distance of 100 feet

from him. Due to hit of the lorry, his father fell on the ground and

received injuries. Lorry dragged his father to some extent. Number

of the lorry is AP31U2113. They stopped the lorry. They saw the

driver of the lorry. Accused is the driver of lorry. His father was

shifted to Devi Nursing Home, Tenali where he died at 03:00 p.m.

Later, he presented Ex.P-1 report to the Police.

15. PWs.2, PW.3 and PW.4, the so called direct witnesses, did

not support the case of the prosecution and their hostility is

proved through Exs.P-2 to P-4. Prosecution confronted with them

with reference to Exs.P-2 to P-4 respectively and they denied the

same. But their hostility was proved through the mouth of PW.11,

the Investigating Officer. So, their evidence is of no use to the case

of the prosecution.

16. Coming to the evidence of PW.6, the owner of the vehicle, he

deposed that he is not the owner of the lorry bearing

No.AP31U2113. He never saw the accused. He does not know

anything about the case. He turned hostile and he denied that he

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stated as in Ex.P-6 and Ex.P-6 is proved through the evidence of

PW.11, Investigating Officer.

17. PW.7 is the Home Guard, who was on traffic duty, and he

deposed that on 12.04.2006 he was on duty from 12:00 noon to

04:00 p.m. at old bridge, Tenali to regulate the traffic. At about

01:00 p.m. he heard the sound of accident and on seeing the

gathering at a distance of 15 to 20 yards from the place, he further

went there and found the lorry No.2113. He then found one man

was under the rear tyres of the above lorry with injuries. By that

time, the driver of the lorry left that place and he did not see him.

He sent the injured to the hospital. He has reported the Police

about the incident. Later, he was examined by the Police.

18. PW.8 is the mahazar witness to the observation of the scene

of offence and inquest report and he supported the case of the

prosecution.

19. PW.9 is the Medical Officer, who conducted autopsy over the

dead body of the deceased and issued Ex.P-9, post-mortem report,

opining that the cause of death was due to shock and hemorrhage

due to multiple injuries.

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20. PW.10 is the Motor Vehicle Inspector and he deposed that

on 19.04.2006, on requisition from the SHO, Tenali, III Town

Police Station, he inspected the vehicle bearing registration

No.AP31U2113, goods vehicle, stationed at III Town Police Station.

He found no damages to the vehicle. He put the vehicle to the road

test, found the breaking system and steering system in good

condition and opined that the accident was not due to any

mechanical defect of the crime vehicle. He issued Ex.P-10 report.

21. PW.11 is the Investigating Officer. He deposed about

registration of FIR basing on Ex.P-1 and his proceeding to the

scene of offence and preparation of rough sketch of the scene of

offence, Ex.P-12, in the presence of the punch witnesses. He

further deposed about examination of PWs.1 to PW.3. He deposed

about the inquest conducted by him. He has further spoken about

the examination of PWs.4 and PW.5 at the scene of offence. He got

conducted motor vehicle inspection through the MVI and

forwarded the dead body for post-mortem examination. He also

examined PW.6, owner of the vehicle, who stated before him as in

Ex.P-6. On 19.04.2006 the accused surrendered in the Police

Station. He arrested the accused and forwarded him for judicial

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custody. After completion of investigation, the SI of Police filed

charge sheet.

22. Firstly, I would like to deal with as to whether the judgment

of both the Courts below that the accused was the driver of the

offending vehicle is tenable? Having regard to the answers spoken

by PW.1 in cross-examination, I am of the considered view that

Ex.P-1 was not supposed to contain the name of the driver of the

vehicle as PW.1 did not know the name of the driver of the vehicle

at the time of the accident. As seen from Ex.P-1, there is a clear

whisper that PW.1 was a witness to the occurrence. His evidence

has corroboration from the contents of Ex.P-1. According to the

case of prosecution, the driver stopped the lorry on raising cries by

PW.1 and absconded. A look at the contents of Ex.P-1 and the

evidence of PW.1 discloses that he has a chance to see the driver.

The incident was happened in broad day light. Though he deposed

in cross-examination that he had no prior acquaintance with the

driver, but as the incident was occurred in a broad day light, there

was every possibility for PW.1 to identify the driver. He reiterated

in cross-examination that he saw the accused on the date of

incident and again on the date of evidence. He does not know the

accused prior to the incident. Police did not conduct any test

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identification parade. It is to be noticed that there was no whisper

in Ex.P-1 that PW.1 could not see the driver thoroughly and that

he can identify. On the other hand, Ex.P-1 means that on his

cries, the driver stopped the vehicle and after that he absconded.

Under the circumstances, non-conducting of any Test

Identification Parade is not fatal to the case of prosecution.

Admittedly, the so called direct witnesses i.e., PWs.2 to PW.4 did

not support the case of the prosecution but, simply because they

did not support the case of prosecution, the evidence of PW.1

cannot be disbelieved. So, one has to look into the evidence of

PW.1 to ascertain as to whether the evidence adduced by the

prosecution is convincing and trustworthy. PW.1 in cross-

examination reiterated the manner of the accident clearly. He

found his father under the rear tyre of the lorry. The offence took

place in a busy centre. Nothing is elicited during his cross-

examination to disbelieve his testimony.

23. Apart from this, the prosecution also relied upon the

evidence of PW.7, Home Guard, whose evidence discloses that he

found the offending vehicle stationed at the accident spot. So, the

prosecution clinchingly established the involvement of the

offending vehicle in the accident. The crucial case of the

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prosecution is that PW.6 was the owner of the offending vehicle,

who did not support the case of prosecution. Ex.P-6 contradicts

his testimony.

24. The case of the prosecution is that PW.6 claimed that he

purchased the lorry from the owner by name T. Venkata Subba

Reddy but the ownership was not transferred. Admittedly, there

were laches on the part of Investigating Officer in not examining

the registered owner of the crime vehicle. It is settled law that the

perfunctory investigation cannot be a ground for acquittal unless

prejudice is caused to the accused.

25. It is to be noticed that, according to the evidence of PW.9,

the Motor Vehicle Inspector, he issued Ex.P-10 report. As evident

from Ex.P-10, accused was shown as the driver of the offending

vehicle with driving license bearing No.1943/TU/99. Absolutely

the defence of the accused is quite evasive. He did not challenge

the testimony of PW.11 - Investigating Officer as to how he came

into possession of the driving license of the accused. It is not the

case of the accused that his driving license was seized by the

Police with force. On the other hand, the case of the prosecution is

that PW.6, non-registered owner of the vehicle, produced the C-

Book as well as the driving license of the accused but accused

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failed to account for how his driving license could be in the

custody of the Police. The case of the prosecution is that accused

surrendered himself before the Police and PW.11 testified the

same. Accused had no necessity whatsoever to surrender himself

before the Police when he had nothing to do with the offending

vehicle. When the incriminating circumstances were put to him,

during 313 Cr.P.C examination, he did not disclose that he was

not the driver of the offending vehicle. Under the circumstances,

the evidence of PW.1 cannot be disbelieved. The circumstances

i.e., referred to above would only falsify the contention of the

accused. In my considered view, the learned Additional Sessions

Judge elaborately dealt with all these aspects and found favour

with the case of the prosecution endorsing the view taken by the

learned Magistrate.

26. The evidence of PW.1 shows the manner in which the

accident was occurred. Accused had no business to hit back the

bicycle of the deceased by coming from his backside. Accused had

no bona-fide defence that he was not at fault in driving the

offending vehicle. On the other hand, he had no consistent defence

throughout. He got cross-examined PW.1 as if there was no

possibility to drive the vehicle with speed. At the same time, he

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contended that he was not the driver. So, both the defences of the

accused would not reconcile with each other. Undoubtedly, the

evidence of PW.1 proved the rash and negligent act against the

accused.

27. As seen from the decision of the Hon'ble Apex Court in

Mohanta Lal Saha (1st supra), it was a case where there were

improvements in the testimony of the direct witnesses as such it

was held to be not believable. The above said facts have nothing to

do with the present case. Coming to the other decision of the

Hon'ble Apex Court in Sher Singh (2nd supra), there was no

specific material to show that accused was driving the vehicle at

the time of accident especially with reference to non-mentioning of

his name in the dying declaration. Even the facts in the above said

case, obviously, stood on a different footing. In Satish (3rd supra),

there was no evidence on record to establish rashness and

negligence in driving the truck on the part of the respondent as

such the High Court of Karnataka acquitted the respondent. In

such circumstances the Hon'ble Apex Court dismissed the Appeal

filed by the State of Karnataka. The facts and circumstances in the

above said case also stood on a different footing. The decision of

the Hon'ble Apex Court in Satish (3rd supra), would not support

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the contention of the revision petitioner in the light of the aforesaid

findings.

28. The learned Magistrate, Tenali as well as the learned

Additional Sessions Judge, Guntur found favour with the case of

the prosecution with sound reasoning. Under the circumstances,

it cannot be said that the judgment of the learned Additional

Sessions Judge in Criminal Appeal No.292 of 2007, dated

17.12.2008, is not in accordance with law and that it suffers with

any illegality, irregularity and impropriety. Hence, I see no reason

to interfere with the impugned judgment.

29. Turning to the contention of learned counsel for the

petitioner that as the revision petitioner is aged about 60 years,

the sentence of imprisonment can be reduced, this Court is not at

all inclined to do so. The trial Court admittedly took a lenient view

in sentencing the accused to one year when the offence was

punishable with two years. The conduct of the revision petitioner,

before this Court is such that he absconded from the process of

law and with great difficulty, the Police could execute the Non

Bailable Warrants against the accused. So, he deserves no

sympathy for reducing the term of imprisonment. Hence, this

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Court is not inclined to consider the contention of learned counsel

for the revision petitioner.

30. In the result, the Criminal Revision Case is dismissed.

31. The Registry is directed to take steps immediately under

Section 388 Cr.P.C. to certify the order of this Court along with the

lower Court record, if any, to the Court below on or before

17.05.2023 and on such certification, the trial Court shall

intimate to the Jail Authorities concerned that the Criminal

Revision Case No.1888 of 2008 filed by him is dismissed. A copy of

this order be placed before the Registrar (Judicial), forthwith, for

giving necessary instructions to the concerned Officers in the

Registry.

Consequently, Miscellaneous Applications pending, if any,

shall stand closed.

________________________________ JUSTICE A.V.RAVINDRA BABU Date: 09.05.2023 DSH