Sudula Mallesh vs The State Of Andhra Pradesh
2023 Latest Caselaw 1532 Tel

     THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

         CRIMINAL REVISION CASE No.296 of 2010

ORDER:

This Criminal Revision Case is filed against the Judgment

passed by the learned III-Additional Sessions Judge (FTC),

Asifabad dated 10.01.2010 in Crl.A.No.1 of 2010, confirming the

Judgment of the learned First Class Judicial Magistrate,

Asifabad dated 10.12.2009 in C.C.No.451 of 2004.

2. Initially, C.C.No.451 of 2004 was filed against the revision

petitioner/accused for the offence punishable under Sections

337, 338 and 304-A of IPC, for causing death of deceased No.1

& 2 and also causing injuries to inmates of auto.

3. The brief facts of the case are that on 27.09.2004, P.W.1

lodged a complaint against the accused stating that he along

with his daughter and Grand-son aged about 1½ year boarded

an auto bearing No. AP 10 BH T/R 5117 at Madaram and

proceeding towards Bellampalli. While they were proceeding to

Bellampalli, the driver of the auto driven the auto in rash and

negligent manner with a high speed and dashed to a Neem tree

by losing control over the auto. As a result of which, the auto

was damaged and deceased No.1 died on the spot and deceased

No.2 died after 10 days while undergoing treatment and all

other inmates of the auto were injured. The complaint was given

against the driver of the auto namely Mallesh. Based on the

complaint a case was registered in Cr.No.65 of 2004 under

Section 337, 338 and 304-A of IPC.

4. In order to prove the guilt of the accused, the prosecution

examined P.Ws.1 to 14 and marked Exs.P1 to P16.

5. The trial Court considering the oral evidence of witnesses

and also the Exs.P1 to P16 convicted the accused by imposing

Simple imprisonment for a period of six months for the offence

punishable under Section 304-A of IPC. Further, to pay a fine of

Rs.1,000/- for the offence under Section 338 of IPC, in default

to suffer Simple imprisonment for the period of three months

and also to pay a fine of Rs.500/- for the offence under Section

337 of IPC, in default to suffer Simple imprisonment for a period

of one month. Aggrieved by the said Judgment, the accused

preferred an appeal before the first appellate Court. The first

appellate Court held that P.W.1 identified the accused as the

driver of the auto before the Court, as such there is no necessity

of conducting Test Identification parade and the defacto-

complainant was semi-conscious after the accident. The first

appellate Court also held that the accused was driving the auto

on National Highway, but turned to the left side of the road and

dashed the Neem tree, as a result of which two inmates were

died. Merely because he did not sustain injury, it cannot be said

that he was driving the auto with a low speed. The P.Ws.5,6 & 8

are the injured witnesses. All of them stated that accident was

occurred due to rash and negligent driving of the auto driver.

They also stated that in spite of their instructions, driver had

driven the auto in a rash manner and lost control over the auto

and dashed to Neem tree. They also stated that though it was a

rainy season, there was no rain as on the date of accident and

the auto was not overloaded. Accident was occurred at a

distance of 125 yards from the Kannala gate on the National

Highway and there is no other vehicle seen over the rough

sketch, as such it cannot be said that he turned the vehicle to

avert any major accident.

6. The defence of the accused is that he was driving the auto

very slowly, but the trial Court did not believe his version as the

several persons were injured when the auto dashed the Neem

tree. In this case, the name of the accused was mentioned in the

F.I.R and he was identified by the injured persons during the

trial. Therefore, the appellate Court also confirmed the

Judgment of the trial court in Toto.

7. The learned Counsel for the revision petitioner/accused

relied upon the decision of the Hon'ble Supreme Court in the

case of Bhalachandra Waman Pathe Vs. State of

Maharashtra1 dated 20.11.1967 1967, in which it was held as

follows:

....The severity of the sentence must depend to a great extent on the degree of callousness in the conduct of the accused.

.... Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precausion to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. Negligence is an omission to do soemthig which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which prudent and reasonable man would not do.

8. The learned Counsel for the petitioner/accused argued

that for the offence under Section 304-A of IPC, the sentence of

imprisonment is not must. Therefore, requested the Court to

modify the said Judgment and to impose the fine amount. He

Law Suit (SC) 311

also relied upon the decision of the Hon'ble Supreme Court in

the case of Mohanta Lal Saha Vs. State of West Bengal2

dated 21.03.1968.

9. Admittedly, the accused is an auto driver. The accident

was occurred due to his rash and negligent driving and all the

inmates had sustained injuries. Ex.P4 to P9 are the wound

certificates and Ex.P10 is the PME report of the deceased who

died in the accident. Admittedly, accident was occurred on

27.09.2004. The conviction was imposed by the trial Court in

the year 2009 and it was confirmed by the first appellate Court

in the year 2010. From then onwards it was pending before this

Court for about 13 years. No doubt, under Section 304-A, the

sentence is not mandatory. Either the fine or imprisonment is

mandatory or both of them can be imposed. Considering the

gravity of the offence, both the Courts concurrently found

accused guilty for the offence under Section 304-A, 337 & 338

of IPC. This Court finds it just and reasonable to modify the

sentence of imprisonment imposed against the accused from six

months to three months for the offence punishable under

Section 304-A of IPC and further to pay a fine of Rs.5,000/- for

the offence under Section 338 of IPC and also to pay a fine of

1968 LawSuit (SC) 72

Rs.5,000/- (Total fine amount of Rs.10,000/-) for the offence

under Section 337 of IPC, in default to suffer Simple

imprisonment for the period of 15 days on each count. The

remand period, if any, shall be set off under Section 428 of

Cr.P.C.

10. In the result, the present Criminal Revision Case is partly

allowed upholding the conviction passed by the first appellate

Court, but the sentence of imprisonment imposed against the

revision petitioner/accused is reduced from six months to three

months for the offence punishable under Section 304-A IPC and

further to pay a fine of Rs.5,000/- for the offence under Section

338 of IPC and also to pay a fine of Rs.5,000/-(Total fine of

Rs.10,000/-) for the offence under Section 337 of IPC, in default

to suffer simple imprisonment for 15 days on each count. The

remand period, if any, shall be set of under Section 428 of

Cr.P.C.

Miscellaneous petitions pending, if any, shall stand

closed.

_________________________ JUSTICE P.SREE SUDHA

DATED: 06.04.2023 tri

THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

CRIMINAL REVISION CASE No. 296 of 2010

DATED: 06.04.2023

TRI