Andhra Pradesh High Court - Amravati

Thupakula Nageswara Rao, vs State Of A.P., Rep By Pp., on 10 January, 2024

                   THE HON'BLE SRI JUSTICE V.SRINIVAS


                 CRIMINAL REVISION CASE No.384 of 2010


ORDER:

This Revision is arising out of judgment dated 24.02.2010 passed in

Criminal Appeal No.149 of 2009 on the file of Family Court-cum Additional

District and Sessions Judge, East Godavari District at Rajahmundry, wherein

the learned Judge has dismissed the appeal confirming the conviction and

sentence imposed against the revision petitioner/accused for the offence

punishable under Section 304-A I.P.C.in the judgment dated 20.07.2009 in

C.C.No.373 of 2008 passed by the learned VII Additional Judicial First Class

Magistrate, Rajahmundry.

2. The brief case of the prosecution is that on 23.01.2004 at about 1.00

p.m the deceased left his shop to go to his house for lunch on his cycle.

When he reached near Subbaraju Complex Morampudi Center, a lorry

bearing No.AB W 3429 hit the deceased from back side without blowing

horn, resulting which, the deceased fell down and front wheel of lorry ran

over his waist and he sustained severe bleeding injuries. Immediately, he

was shifted to the Government Hospital for treatment. While undergoing

treatment, the deceased died on the same day at 8.40 p.m. Basing on the

statement of the deceased, a case in Crime No.35 of 2004 was registered

and investigated into. After completion of investigation, charge sheet was

laid.

3. During the course of trial, the prosecution examined PW.1 to PW.8

and marked Ex.P1 to Ex.P9. On behalf of the accused, Ex.D1 was marked

and no oral evidence was adduced.

4. The trial Court convicted the accused for the offence under Section

304-A IPC and sentenced him to undergo rigorous imprisonment for a period

of one year.

5. Aggrieved by the said judgment, the revision petitioner/accused

preferred an appeal before the appellate Court, but the same was dismissed

by confirming the judgment of the trial Court.

6. Being aggrieved, the present revision has been filed by the

petitioner.

7. Heard Sri K.Narasimha Rao, learned counsel for the petitioner and

Sri Dheera Kanishk, learned counsel attached to the office of the State

Public Prosecutor, for the respondent-State.

8. Learned counsel for the revision petitioner submits that there is no

material on record to show that PWs.2, 4 and 7 saw the vehicle driven by

the accused in a rash and negligent manner and the trial court erred in

believing their testimonies; that for the first time PWs.2, 4 and 7 identified

the accused as the driver of lorry and in fact, there is no personal or prior

acquaintance with the accused and suddenly, after five years of incident,

identifying the accused in the trial court, is a fatal to the prosecution; that

the evidence of PWs.2, 4 and 7 that vehicle was driven at high speed cannot

be considered as rash and negligent driving of the accused because speed

has to be considered in respect of the place, where the vehicle was being

driven and that the findings of both the courts are erroneous and the

impugned judgment is liable to be set aside.

9. Learned counsel appearing for the respondent-State submits that

Pws.2, 4 and 7 are eye witnesses, who were present at the scene of offence

is natural and probable and they are no way related to the deceased; that

they identified the accused as driver of the vehicle on the date and time of

accident when the vehicle was stopped at the scene of offence; that it is

not possible for the witnesses to follow the lorry to some distance and see

its driver and there is no scope for the witnesses to speak false against the

accused; and that the said witnesses categorically stated that immediately

after the accident, the driver got down from the vehicle and while fleeing

away, they saw the driver. He also submits that there is no necessity for this

court to reappraise the entire evidence of the fact and prayed to dismiss

the revision.

10. The point that arises for consideration in this revision is:

"Whether there is any illegality or impropriety or incorrectness in the sentence imposed by the trial Court as confirmed by the appellate Court?"

11. Revision is a discretionary power and not a right of the

party. Therefore, the party should show that there is a manifest error of law

or a flagrant miscarriage of justice in the order or proceeding of the lower

court and the Revision is not a substitute for appeal. It is also settled law

that the revisional court should not re-appreciate the evidence or interfere

with the findings of fact, unless they are perverse or unreasonable and the

revisional court should not act as a second appellate court and substitute its

own views on the findings arrived at for those of the lower court, unless

there is a clear error of law or a gross injustice in the order or proceeding

of the court.

12. Coming to the facts of this case are concerned, the prosecution

version is that on 23.01.2004 at about 1.00 p.m when the deceased by

name Jagarapu Jagadeesh, going to his house for taking meals on his cycle

and reached near Subbaraju Complex Morampudi Centre, at that time a

lorry bearing No.AB W 3429 came behind the deceased and hit him without

blowing any horn, due to which the deceased fell down and the front wheel

of the lorry ran over his waist and he sustained severe bleeding injuries.

13. Basing on the statement of the eyewitness, a case in Crime No.35 of

2004 of I Town L & O Police Station, Rajahmundry, was registered and

investigated into. After completion of investigation, a charge sheet was

filed against the accused.

14. The prosecution placed reliance on the testimonies of PWs.2, 4

and 7, who are said to be eyewitnesses to the accident to prove the

identity of the driver. This court also perused their testimonies. The said

witnesses clearly identified the driver/accused/petitioner, who drove the

lorry bearing No.AB W 3429 on 23.01.2004, stating that on the date of

accident, the deceased while proceeding on his cycle, the said lorry came

at high speed without blowing horn and hit the deceased. The driver has

not made any efforts to avert the accident. It was also found from their

testimonies that immediately after causing the accident, he left the lorry

at the scene of offence and escaped. While the driver was getting off

from the lorry cabin, he was identified by the said witnesses. As seen

from their testimonies, their testimonies are natural. Admittedly, they

are independent witnesses and they are no way related to the deceased.

No doubt, the doubt raised by the defense that the incident occurred on

23.01.2004 and after five years, they have given evidence and he was

identified by PWs.2 and 4 in the court. But they consistently identified

that the accused was the driver at the time of accident. Thereby, this

court also concurred with the findings of the trial Court.

15. The contention of the petitioner/accused is that since there is no

test identification was conducted to identify the accused and PWs.2, 4

and 7 have no photographic memory of identifying the accused relying on

their testimonies cannot be acceptable.The judgments relied upon by the

learned counsel in Raja v. State by the Inspector of Police1 and Amrik

Singh v. the State of Punjab2, are not applicable to the facts of the

present case.

16. Each case has to be decided on its own merits basing on the

question of fact. Coming to the rash and negligent driving on the part of

(2020) 15 SCC 562

(2022) 9 SCC 402

the accused is concerned, admittedly, lorry was run over the deceased.

The same is proved by the evidence of eyewitnesses i.e. PWs.2, 4 and 7.

Their evidence is consistent and corroborating with the case of the

prosecution that at that particular time, the accused drove lorry and

dashed him from back side without blowing horn and ran over him.

17. Considering all these facts, this court is of the considered opinion

that the prosecution proved rash and negligent driving on the part of the

driver. In view of the law laid down by the Hon'ble Supreme Court, this

Court is of the view that there are no further mitigating circumstances

regarding the rash and negligence on the part of the petitioner in this case

and also there is no failure of appreciation of evidence as well fact and law

by the trial court as well the sessions court in finding the guilt of the

accused. The trial Court, after considering the entire material placed on

record, rightly, concluded that the accused found guilty of the charge

leveled against him and convicted the accused and the same was upheld by

the first appellate Court. Hence, there is nothing on record to interfere

with the findings recorded by both the Courts below.

18. However, during the course of arguments, learned counsel for the

petitioner submitted a memo stating that by the date of offence, the

accused was aged about 50 years and now he is more than 65 years and

that he underwent bye-pass surgery twice i.e. in 2007 and 2011. Besides

he is a diabetic patient and has to take so many medicines regarding his

heart disease and diabetics. In support of the same, he submitted copies

of discharge summary of NRI Heart Centre and Research Institute,

Chinakakani and recent medical report. In this connection, learned

counsel for the petitioner relied upon the judgment of the Hon'ble

Supreme Court in Surendran v. Sub-Inspector of Police3. In the said

judgment the offence occurred on 16.02.1995 and first judgment was

delivered on 28.04.1999 convicting the accused for the offence under

Sections 279 and 338 IPC and in the appeal, the said judgment was

confirmed on 29.05.2023. At that time, learned counsel for the appellant

contended that the accused was sole bread earning member of a poor

family consisting of four children and wife and if the appellant is sent to

jail after more than 21 years, he will suffer irreparable injury. The

learned counsel also relied upon the judgment of the Supreme Court in

A.P.Raju v. State of Orissa4, wherein, in a case of rash and negligent

driving the offence under Section 304A IPC, invoking Section 360 Cr.P.C.

on probation of good conduct, be of good behavior and keep peace for a

period of one year and sentence is modified by relaxing under Section 360

Cr.P.C. on considering those judgments, the Hon'ble Apex Court,

substituted the sentence of six months imprisonment into fine.

19. So far as the sentence is concerned, on the mitigating factors like the

accused underwent major operations of bye-pass surgery twice besides he

has wife and children said to be dependent on him, the recent judgment in

2021 SCC Online SC 445

1995(Supp(2) SCC 385

State of Punjab v. Dil Bahadur5, the Hon'ble Apex Court at para-14 held as

follows:

"Needless to say, the principle of sentencing recognizesthe corrective measures but there are occasions when deterrence is an imperative necessity depending upon the facts of the case. In our opinion, it is a fit case where we are constrained to say that the High Court has been swayed away by the passion of mercy in applying the principle that payment of compensation is a factor for reduction of sentence to 24 days. It is absolutely in the realm of misplaced sympathy. It is, in a way, a mockery of justice. Because justice is "the crowning glory", "the sovereign mistress" and "queen of virtue" as Cicero had said. Such a crime blights not only the lives of the victims but of many others around them. It ultimately shatters the faith of the public in judicial system."

20. The Hon'ble Supreme Court considered the same judgment and held

that undue sympathy by means of imposing inadequate sentence would do

more harm to the justice system to undermine the public confidence in the

efficacy of law and the society cannot endure long under serious threats. If

the courts do not protect the injured, the injured would then resort to

personal vengeance. Therefore, the duty of any court is to award proper

sentence having regard to the nature of the offence and the manner in

which it was committed.

21. In the present case on hand, since the incident is said to have taken

place in the year 2004 and more than 19 years have elapsed and now to

serve the remaining sentence by the accused would amount to travesty of

justice.