M.Narayana, vs State Of A.P., Rep By Pp.,
2022 Latest Caselaw 3662 Tel

           THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI

            CRIMINAL REVISON CASE No.1785 of 2007

ORDER:

This Criminal Revision Case, under Sections 397 & 401 of

Cr.P.C., is filed by the petitioner/accused, challenging the

judgment, dated 17.12.2007, passed in Criminal Appeal No.240 of

2007 by the IV Additional Metropolitan Sessions Judge, Hyderabad,

whereby, the judgment, dated 29.06.2007, passed in C.C.No.736

of 2003, by the IV Additional Chief Metropolitan Magistrate,

Hyderabad, convicting the petitioner/accused of the offence under

Section 304A of IPC and sentencing him to undergo imprisonment

for a period of six months and to pay fine of Rs.5,000/-, in default,

to undergo simple imprisonment for one month, was confirmed.

2. I have heard the submissions of the learned counsel for the

petitioner/accused and the learned Assistant Public Prosecutor

representing the respondent-State. I have perused the record.

3. The charge-sheet allegations, in brief, are that on

06.12.2002 evening hours, the de-facto complainant-Thota Vijay,

along with his wife-Sridevi and son-Suraj, aged 13 months, was

proceeding on Bajaj Chetak Scooter bearing registration No.AP-10-

J-5576 from their house to Boduppal to visit their relative. When

he reached near Mahaveer Emporium, Habsiguda, an APSRTC Bus

bearing registration No.AP-09-Z-5820, being driven by its driver in

a rash and negligent manner, hit the scooter from backside. While

the bus ran over the minor boy Suraj resulting in his instantaneous

death, Sridevi received severe injuries on her head and the

complainant received simple injuries. Immediately, the

complainant and his wife Sridevi were shifted to Gandhi Hospital

for treatment, where the doctor declared that the wife of the

complainant Sridevi was brought dead. On a report lodged by the

complainant, the police registered the subject crime, completed

investigation, and laid charge-sheet before the trial Court against

the driver of the bus for the offence under Section 304A of IPC.

4. To substantiate the case of prosecution, PWs.1 to 11 were

examined and Exs.P1 to P9 were marked. On behalf of the

petitioner-accused, no evidence, either oral or documentary, has

been adduced.

5. The trial Court, after analyzing the entire evidence on record,

holding that the subject accident occurred due to rash and

negligent driving of the driver of the bus bearing registration

No.AP-09-0Z-5820, as such, he is liable for conviction, convicted

and sentenced the petitioner-accused as stated supra. Aggrieved

by the same, the petitioner-accused preferred the subject Crimnal

Appeal No.240 of 2007 before the Court below. The Court below,

after re-appreciating the entire evidence on record, confirmed the

judgment of the trial Court. Aggrieved by the same, the

petitioner-accused filed this Criminal Revision Case.

6. Learned counsel for the petitioner/accused would submit that

the lower appellate Court, without properly appreciating the

material placed on record, erroneously confirmed the judgment of

the trial Court. The ingredients of Section 304A of IPC have not

been made out against the petitioner-accused. There are

contradictions and material omissions in the evidence of

prosecution witnesses. The subject accident took place due to the

negligent driving of the de-facto complainant, but not due to rash

and negligent driving of the petitioner-accused. Further, PW.9-

Motor Vehicle Inspector categorically deposed that there was no

damage caused to the scooter in the subject accident. If really the

bus had hit the scooter from backside at a high speed, there could

have been damages to the scooter also. This makes the subject

accident improbable. Further, the passengers of the subject bus

were not examined to prove the rash and negligent driving on the

part of the petitioner-accused. It is a fit case to acquit the

petitioner-accused of the charge levelled against him and

ultimately prayed to allow the Criminal Revision Petition as prayed

for.

7. Per contra, the learned Assistant Public Prosecutor would

submit that the subject accident took place due to the rash and

negligent driving of the petitioner-accused. There are direct

witnesses to the subject accident. There are no contradictions and

material omissions in the evidence of prosecution witnesses. The

evidence placed on record clinchingly proves the guilt of the

petitioner-accused beyond all reasonable doubt. Hence the trial

Court was justified in convicting and sentencing the petitioner-

accused, which was rightly confirmed by the lower appellate Court.

There are no circumstances to interfere with the impugned

judgment and ultimately prayed to dismiss the Criminal Revision

Case.

8. In view of the above submissions, the point that arises for

determination in this Criminal Revision Case is as follows:

"Whether the impugned judgment, dated 17.12.2007, passed in Criminal Appeal No.240 of 2007 by the IV Additional Metropolitan Sessions Judge, Hyderabad, is legally sustainable?"

POINT:-

9. The petitioner was convicted for the offence under Section

304A of IPC. The date of commission of offence, i.e., 06.12.2002

is not in dispute. PW.3 is a star witness in this case. He is an

independent direct witness to the subject accident. He deposed

that the petitioner-accused drove the subject bus in a rash and

negligent manner and hit the scooter from its backside which

resulted in small kid and the mother of kid fell down on road, bus

ran over on the head of the kid causing his instantaneous death

and injuries to the wife of the complainant. He further deposed

that they caught hold the accused and handed over to the police.

He further identified the accused in the Court. Though PW.3 was

cross examined, nothing was elicited to disprove his testimony in

examination-in-chief. PW.2, the injured witness, also deposed

about the bus hitting the scooter resulting in instantaneous death

of his minor son and injuries to himself and his wife. PW.8, the

doctor who conducted autopsy over the dead body of the minor

boy and wife of the complainant, deposed in his evidence that the

wife of the complainant (Sridevi) died due to head injury which

might have been caused in a road accident. He further deposed

that he also conducted autopsy over the dead body of the minor

boy and he died due to injuries caused to head and neck and the

said injuries might have been caused in road accident. He issued

Ex.P6-PME Report. The evidence of PWs.1 to 8 and 10 coupled

with Ex.P1-complaint, Ex.P2-Scene of offence panchanama, Ex.P3-

rough sketch, Ex.P4-two inquest reports of the deceased, Ex.P5-

PME Report of the deceased Sridevi, Ex.P6-PME Report of minor

boy Suraj and Ex.P9-FIR, substantiates that the subject accident

occurred due to rash and negligent driving of the driver of the RTC

bus bearing registration No.AP-09-Z-5820, which resulted in

instantaneous death of the minor boy Suraj and death of the wife

of complainant Sridevi and receiving injuries by the complainant.

There is consistency and corroboration in the evidence of

prosecution witnesses. There are no contradictions and material

omissions in the evidence of prosecution witnesses. Further, in

view of the direct evidence of independent witness with regard to

the subject accident, the contention of the learned counsel for the

petitioner-accused that since no damage was caused to the

scooter, the subject accident is improbable, needs no

consideration. Further, non-examination of the passengers of the

bus is not fatal to the case of the prosecution. All the

requirements for establishing the offence under Section 304A of

IPC against the petitioner-accused have been made out. Both the

Courts below, having meticulously analyzed the evidence on record

in correct perspective, rightly convicted the petitioner-accused for

the offence under Section 304A IPC.

10. As far as the quantum of sentence imposed against the

revision petitioner is concerned, the offence took place as long

back as in the year 2002. The petitioner/accused attended the

trial Court as well as the lower appellate Court in connection with

this case. Further, the petitioner/accused was on bail throughout

the case before the trial Court as well as the lower appellate Court.

Further, this Court, vide order, dated 19.12.2007, passed in

Crl.R.C.M.P.No.2602 of 2007, granted suspension of sentence

against petitioner/accused and ordered his release on bail. It is

brought to the notice of this Court that in all, the

petitioner/accused was in judicial custody for a period of 3 days in

connection with this case.

11. In B.G. Goswami v. Delhi Administration1, the Hon'ble

Supreme Court, while reducing the punishment to the period

already undergone by the accused therein, laid down the general

principles that are to be borne in mind by the Courts while

(1974) 3 SCC 85

determining the quantum of punishment. It was observed as

follows:-

"The sentence of imprisonment can be for a lesser period but in that event the Court has to assign special reasons which must be recorded in writing. In considering the special reasons the judicial discretion of the Court is as wide as the demand of the cause of substantial justice. Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act which is not only harmful to the society of which he forms an integral part, but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and re-claim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to jail now after 7 years of the agony and harassment of these proceedings when he is also going to lose his job and to earn a living for himself and for his family members and for those dependent on him, we feel that it would meet the ends of justice if we reduce the sentence of imprisonment to that already undergone but increase the sentence of fine from Rs. 200/- to Rs. 400/-. Period of imprisonment in case of default will remain the same."

12. Further, in the recent decision of the Hon'ble Apex Court in

V.K. Verma v. CBI2, it was held as follows:-

(2014) 3 SCC 485

"In imposing a punishment, the concern of the court is with the nature of the act viewed as a crime or breach of the law. The maximum sentence or fine provided in law is an indicator on the gravity of the act. Having regard to the nature and mode of commission of an offence by a person and the mitigating factors, if any, the court has to take a decision as to whether the charge established falls short of the maximum gravity indicated in the statute, and if so, to what extent.

The long delay before the courts in taking a final decision with regard to the guilt or otherwise of the accused is one of the mitigating factors for the superior courts to take into consideration while taking a decision on the quantum of sentence.

The Appellant is now aged 76. We are informed that he is otherwise not keeping in good health, having had also cardio vascular problems. The offence is of the year 1984. It is almost three decades now. The accused has already undergone physical incarceration for three months and mental incarceration for about thirty years. Whether at this age and stage, it would not be economically wasteful, and a liability to the State to keep the Appellant in prison, is the question we have to address. Having given thoughtful consideration to all the aspects of the matter, we are of the view that the facts mentioned above would certainly be special reasons for reducing the substantive sentence but enhancing the fine, while maintaining the conviction."

13. While determining the quantum of sentence, the Court is

expected to strike balance between too harsh and too lenient view.

Balancing has to be done between the rights of the accused and

the needs of society at large. It would also be a daunting

challenge to preserve the trust of citizens when using the authority

of the Courts to convict an accused. In the instant case, the

incident pertains to the year 2002, i.e., more than 19 years ago.

The petitioner/accused has already undergone physical

incarceration for about 3 days and mental trauma for about 19

years. Keeping in view the provisions of Article 21 of the

Constitution of India and the interpretation thereof qua the right of

an accused to a speedy trial, judicial compassion can play a role

and a convict can be compensated for the mental agony which he

undergoes on account of protracted trial. Under these

circumstances, directing the petitioner / accused to serve the

remaining period of sentence imposed upon him would be unfair.

Article 21 of the Constitution would bring within its sweep, not only

expeditious trial but disposal of appeals and revisions. Having

given thoughtful consideration to all the aspects of the matter, this

Court is of the considered opinion that the facts mentioned above

would certainly be special reasons for reducing the substantive

sentence, while maintaining the conviction. Considering the

totality of the circumstances, this Court deems it appropriate that

if the sentence of imprisonment is modified to the period already

undergone by the petitioner/accused, the same would sub-serve

the ends of justice.

14. Accordingly, while maintaining the conviction recorded

against the petitioner/accused, the sentence of imprisonment

imposed against him by the trial Court and confirmed by the lower

appellate Court, is reduced to the period of imprisonment already

undergone by him. The fine amount of Rs.5000/- imposed is

maintained, along with default sentence.

15. With the above reduction/modification of sentence of

imprisonment, this Criminal Revision Case is dismissed, being

devoid of merit.

Miscellaneous petitions, if any, pending in this Criminal

Revision Case, shall stand closed.

___________________ JUVVADI SRIDEVI, J

13th July, 2022 Ksk