Andhra Pradesh High Court - Amravati
Borada Ramana vs The State Of A.P. on 1 August, 2024
APHC010709432011
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3367]
(Special Original Jurisdiction)
THURSDAY ,THE FIRST DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE V SRINIVAS
CRIMINAL REVISION CASE NO: 918/2011
Between:
Borada Ramana ...PETITIONER
AND
The State Of A P ...RESPONDENT
Counsel for the Petitioner:
1. R SIVA SAI SWARUP
Counsel for the Respondent:
1. PUBLIC PROSECUTOR
The Court made the following:
ORDER:
Assailing the judgment dated 11.04.2011 in Crl.A.No.166
of 2009 on the file of the Court of learned VIII Additional
Sessions Judge at Visakhapatnam, confirming the conviction
passed against the accused by the judgment dated 14.09.2009
in C.C.No.86 of 2008 on the file of the Court of learned Chief
Metropolitan Magistrate at Visakhapatnam, for the offences
under section 304-A and 337 of Indian Penal Code (hereinafter
referred to as "IPC"), the petitioner/accused filed the present
criminal revision case under Section 397 r/w.401 of the
Criminal Procedure Code, 1973.
2. The revision case was admitted on 18.04.2011 and the
sentence of imprisonment imposed against the petitioner was
suspended, vide orders in Crl.R.C.M.P.No.1376 of 2011.
3. The shorn of necessary facts are that:
i). On 18.11.2007, one Anapu Madhu (hereinafter
referred to as 'deceased') along with P.W.1, P.Ws.3 to 5
and others, who were in Ayyappa Deeksha, proceeding
from Adarshnagar towards N.H.5 road by foot on the left
side of the road, with a view to go to Nookalamma temple
for darshan, when they reached near Visakha Valley
School Junction, the driver of the lorry bearing No.AP 31
TT 9589 (hereinafter referred to as "crime lorry"), drove
the same in a rash and negligent manner at high speed,
dashed them and rash over them. Resulted, the deceased
died on the spot and other persons received injuries.
ii). Basing on Ex.P.1 report of P.W.1, P.W.11-S.I. of
Police, Pothinamallayyapalem Police, Visakhapatnam
registered a case in Cr.No.272 of 2001 for the offences
under Section 304(A), 338 and 337 of IPC and
investigated into.
4. After completion of investigation, police laid charge sheet
and the same was numbered as C.C.No.86 of 2008 on the file of
the Court of learned Chief Metropolitan Magistrate at
Visakhapatnam, trial was conducted, found the accused guilty
of the offences under Section 304-A, 338 and 337 of IPC,
sentenced him to undergo rigorous imprisonment of one (1) year
and to pay fine of Rs.10,000/-, in default to suffer simple
imprisonment of two(2) months, sentenced to pay Rs.1,000/-, in
default to suffer simple imprisonment of one(1) month and also
sentenced him to pay Rs.500/-, in default to suffer simple
imprisonment of one(1) month, for the respective offences.
5. Aggrieved by the same, the petitioner preferred an appeal,
vide Crl.A.No.166 of 2009, before the Court of learned VIII
Additional Sessions Judge at Visakhapatnam and the same was
allowed in part, vide judgment dated 11.04.2011, by setting
aside the conviction and sentence passed by the trial Court for
the offence under Section 338 of IPC and confirming the
conviction for the offences under Section 304-A and 337 of IPC,
however, reduced the sentence of imprisonment from one (1)
year to six (6) months rigorous imprisonment for the offence
under Section 304-A of IPC.
6. Against the said judgment of the first Appellate Court, the
present criminal revision case was preferred by the
petitioner/accused.
7. Heard Sri R.Siva Sai Swarup, learned counsel for the
petitioner and Sri S.Dheera Kanishk, learned Special Assistant
Public Prosecutor for the respondent-State.
8. Now the point that arises for determination in this
revision is "whether there is any manifest error of law or flagrant
miscarriage of justice in the findings recorded by the Trial Court
as well first Appellate Court?"
9. Sri R.Siva Sai Swarup, learned counsel for the petitioner
submits that the testimony of P.Ws.1 to 3 and 5 is highly
interested and not reliable; that the prosecution failed to prove
the ingredients to constitute the offences alleged against the
petitioner; that P.W.4 failed to identify the petitioner as driver of
the crime vehicle; that there is no rash and negligence on the
part of the petitioner in causing the alleged incident; that the
Trial Court as well Sessions Court failed to appreciate the
material on record in a proper perspective, erroneously
convicted the petitioner and the same is liable to be set aside.
10. Against the same, Sri S.Dheera Kanishk, learned Special
Assistant Public Prosecutor for the respondent-State submits
that the testimony of P.Ws.1 to 3 and 5, who are injured
persons, clearly goes to show that they sustained injuries in the
incident and they identified the accused as driver of the crime
lorry by the date of incident; that the prosecution got marked
Ex.P.9 post mortem examination report of deceased through
P.W.8, which shows the death of the deceased in the incident;
that Exs.P.2 to P.8 would certificates of injured and testimony of
P.Ws.6 and 7 shows the injuries sustained by P.Ws.1 to 5 in the
incident; that the Courts below rightly appreciated the evidence
of on record and convicted the petitioner for the said offences;
that the prosecution proved the guilt of the accused beyond all
reasonable doubt by examining P.Ws.1 to 11 and producing
Exs.P.1 to P.13.
11. In view of the above rival contentions, this Court perused
the material available on record. There is no dispute about
involvement of the crime lorry in the accident as well death of
the deceased person and injuries to P.Ws.1 to 5 in the incident.
12. The only contention raised by the petitioner is that he was
not the driver of the crime vehicle on the date of alleged incident
and there is no negligence on the part of the driver of the crime
lorry in casing the incident.
13. In view of the above said contention, it is relevant to state
the testimony of P.Ws.1 to 3 and 5, who are said to be injured
eyewitness to the incident and they categorically testified that
the accused was the person who driven the crime lorry in a rash
and negligent manner and caused the incident. Even P.W.4,
who is also said to be injured eyewitnesses, though not
identified the accused as driver of the crime lorry, the testimony
of other injured eyewitnesses i.e., P.Ws.1 to 3 and 5 is cogent
and corroborating with each other. Nothing was elicited during
cross examination to disbelieve their testimonies. The contents
of Ex.P.1 report, which was submitted by P.W.1, is also
corroborated to the testimony of prosecution witnesses.
14. Furthermore, the testimony of P.W.9 motor vehicle
inspector as well as the Ex.P.10 report issued by him
categorically shows that the accident occurred was not due to
any mechanical defect of the crime vehicle. Viewing from any
angle, prosecution categorically proved the guilt of the accused
for the said offences beyond all doubt.
15. The trial Court as well Sessions Court categorically held
that the testimony of prosecution witnesses clearly goes to show
that the petitioner/accused had driven the crime lorry in a rash
and negligence manner, resulted death of one person and
injuries to five persons.
16. It is settled law that in view of the concurrent findings on
facts by the Trial Court as well Sessions Court, this Court being
Revisional Court is not expected to set aside the same without
any material of perversity or manifest error in the findings
arrived by both the Courts below. There is no material before
this Court to discard the trustworthiness of prosecution
witnesses.
17. All these facts go to show that both the Courts below
rightly came to conclusion that there is rash and negligence on
the part of the petitioner in causing the incident and that there
is no apparent failure on the part of the Trial Court as well
Sessions Court in appreciating the evidence on record or to
arrive at a conclusion that prosecution proved the guilt of the
accused for the said offences. In these circumstances, this
Court is of the considered opinion that there is no perversity or
flaw in the findings recorded by both the Courts below in
convicting the accused for the said offences.
18. However, while arguing the matter, learned counsel for
the petitioner/accused submits that the accident had occurred
on 18.11.2007 and there are mitigating circumstances to reduce
the sentence imposed against the petitioner by the trial Court,
which was confirmed by the Sessions Court. He also brought to
the notice of this Court a judgment of the Hon'ble Supreme
Court reported in Nand Ballabh Pant v. State (Union
Territory of Delhi)1, wherein the APEX Court considered the
facts and reduced the period of sentence of imprisonment
imposed on the appellate from two (2) months to one (1) month
rigorous imprisonment.
19. He also brought to the notice of this Court another
judgment of Hon'ble Supreme Court reported in Jagdish
Chander v. State of Delhi2, wherein also the APEX Court
considered the relevant circumstances and reduced the
sentence of imprisonment to that of already undergone but
increased the sentence of fine from Rs.500/- to Rs.700/-.
20. Even in Nagaraj v. Union of India3, the APEX Court at
paragraph Nos.18 and 19 held that "the appellant/accused has
already undergone one month jail sentence; second, the offence
in question neither against the society nor it involves any moral
turpitude and nor it has resulted in causing any harm or injury
to any human being except causing some damage to the railway
1AIR 1977 SC 892
2AIR 1973 SC 2127
32019 (1) ALT (Crl.) 209
property, viz., one railway crossing gate; and lastly, the offence
is now 13 years old. In view of the aforementioned three reasons
and in the interest of justice, therefore of the considered opinion
that the six months jail sentence awarded to the appellate by
the three Courts below deserves to be altered to what he has
already undergone by the appellant till date."
21. As well in Mohinder Singh v. State of Haryana4, the
Hon'ble Supreme Court held at paragraph No.2 that "they are
not inclined to interfere on the merits of the case and at the
same time, they cannot lose sight of fact that the occurrence
took place more than a quarter of century back and to send the
accused in prison after 25 years, would be travesty of justice."
22. No doubt, in the present case also the incident was said
to have happened on 18.11.2007 and by this time sixteen (16)
years have already lapsed, but there was the loss of one human
life and injuries sustained by five persons.
23. Having regard to the above discussion and in view of the
above pronouncements of the Hon'ble Supreme Court, this
Court is of the considered opinion that the conviction is upheld,
however, to meet the ends of justice, the sentence of
42019 (3) Crimes 89
imprisonment is reduced to three (3) months from one (1) year
for the offence under Section 304-A of IPC.
24. In the result, the Criminal Revision Case is allowed in
part, modifying the sentence of imprisonment imposed against
the petitioner/accused to that of three (3) months rigorous
imprisonment instead of six (6) months for the offence under
Section 304-A of IPC. The rest of the judgment dated
11.04.2011 in Crl.A.No.166 of 2009 on the file of the Court of
learned VIII Additional Sessions Judge at Visakhapatnam, shall
stands confirmed. The period of sentence, if any, already
undergone by the petitioner/accused, shall be given set off
under Section 428 Cr.P.C. The petitioner/accused is directed to
surrender before the Court of learned Chief Metropolitan
Magistrate at Visakhapatnam to serve the remaining sentence, if
not, the learned Magistrate concerned shall take steps against
the petitioner.
Interim orders granted earlier if any, stand vacated.
As a sequel, miscellaneous applications pending, if any,
shall stand closed.
_______________________
JUSTICE V.SRINIVAS
Date: 01.08.2024
Krs
THE HON'BLE SRI JUSTICE V.SRINIVAS
CRIMINAL REVISION CASE No.918 of 2011
DATE: 01.08.2024
Krs
