Vanguri Mallaiah, Khm Dist. vs P.P., Hyd Ano
2023 Latest Caselaw 777 Tel

                                  1                              RRN,J
                                                         Crl. RC.No.522 of 2016

THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO


         CRIMINAL REVISION CASE No.522 OF 2016


JUDGMENT:

This Criminal Revision Case is directed against the

judgment dt.20.10.2014 in C.C No.203 of 2005 of the learned

Judicial Magistrate of First Class, Madhira, wherein the revision

petitioner was convicted and sentenced to imprisonment for 2

years with a fine of Rs.5,000/-, in default, simple imprisonment

for six months for the offence under Section 304A of Indian Penal

Code. He is further sentenced to pay a fine amount of Rs.500/-

for the offence under Section 3 read with Section 181 of the

Motor Vehicles Act, in default, simple imprisonment for one

month. Since, accused No.1/revision petitioner is convicted

under Section 304-A IPC, he need not be separately convicted for

the offences under Section 337 and 338 IPC since the act of

accused No.1 is single in view of Section 71 of IPC.

Aggrieved by the said judgment, the revision

petitioner/accused No.1 preferred an appeal before the learned

Principal Sessions Judge, Khammam, in Crl. Appeal No.165 of

2014 dt.03.02.2016 and the appellate Court has confirmed the 2 RRN,J Crl. RC.No.522 of 2016

conviction for the offence under Section 304A IPC, however,

modified the sentence of imprisonment from two years to one and

half years, and the fine imposed for the offences under Section

304A IPC and under Section 3 read with Section 181 of the Motor

Vehicles Act are confirmed. Hence, the present revision.

2. The case of the prosecution is as follows:

On 11.03.2004 at 11.30 hours, the de facto

complainant Annepogu VIjayamma (PW1) lodged a complaint

before the police Bonakal stating that she is mason by profession

and she engaged coolie workers and on the fatal day of accident,

at about 09.30 hours, she along with her villagers, viz. (PWs.2 to

18, 25 and Annepogu Ratnakumari (LW6) and Deceased Nos. 1 to

3 were proceeding to the Chilli Garden of Boinapalli Suryanaraya

of Choppakatlapalem for plucking the Chillies. In the

meanwhile, A1 allowed the above said coolies to sit in the Tractor

bearing No.AP-20/F-8339/Trolley bearing No.AP-20/U-6940

owned by A2, and were proceeding towards Choppakatlapalem.

On the way, the driver of Tractor/A1, drove the said tractor in a

rash and negligent manner and when reached near Shakamuri

Ravikumar's mango garden near a turning, the trailer de-linked 3 RRN,J Crl. RC.No.522 of 2016

from the tractor and turned turtle and fell into a trench, as a

result, the occupants, who sat on the trolley, received injuries.

Immediately, they were shifted to Primary Health Centre,

Bonakal, and some others were shifted to Government Hospital,

Khammam, for treatment. While undergoing treatment,

Marikanti Suvartha/deceased No.1 died of injuries at the said

Hospital. The driver absconded along with tractor.

3. On a complaint, a case under Sections 304A, 337 and

338 of IPC was registered against the driver of the Tractor in

Cr.No.18 of 2004. During the course of investigation, two other

injured succumbed to the injuries while undergoing treatment.

4. The prosecution to prove its case examined PWs 1 to

39 and got marked Ex.P1 to P37. On behalf of the accused, no

oral was adduced, however, Ex.D1 to D4 were marked. Upon

consideration of the evidence on record, the trial Court found the

accused No.1 as stated supra. Aggrieved by the said judgment,

the revision petitioner/accused preferred an appeal before the

appellate Court vide Crl. Appeal No.165 of 2014 and the

Appellate Court vide its judgment dt.03.02.2016 modified the 4 RRN,J Crl. RC.No.522 of 2016

sentence passed by the trial Court from two years to one-and-half

years as stated supra.

5. Heard the learned Counsel for the revision

petitioner/accused and the learned Assistant Public Prosecutor

for the respondent/State and perused the material available on

record.

6. Learned Counsel for the revision petitioner/accused

No.1 has contended that as the Motor Vehicle Inspector, who is

the author of Ex.P37/MVI report, was not examined by the

prosecution, prejudice is caused to the petitioner as cross-

examination could not be conducted to prove his innocence,

owing to the mechanical defect of the tractor and trailer, yet both

Courts below relied upon Ex.P37 and came to the conclusion that

there was no mechanical defect. She further contended that the

tragic incident occurred due to bad condition of the road having

pits despite the petitioner drove the tractor - trailer in a cautious

manner. She further contended that the finding recorded by the

Courts below that the petitioner was not having valid licence, is

unsustainable as neither documentary nor oral evidence was 5 RRN,J Crl. RC.No.522 of 2016

adduced to that effect, more particularly, Motor Vehicle Inspector

was not examined. Hence, prayed to allow the Revision.

7. On the other hand, learned Assistant Public

Prosecutor contended that the petitioner/accused drove the

tractor-trailer in a rash and negligent manner, which resulted in

the death of three persons and injuries to victims and the

petitioner/accused did not dispute regarding the occurrence of

the incident and that he escaped from the scene of offence along

with his tractor, which proves his guilt. She further contended

that the Appellate Court by taking into consideration the material

available on record, rightly rendered its judgment by modifying

the sentence of the trial Court, and no interference is required by

this Court. Accordingly, prayed to dismiss the revision.

8. Now, the point for consideration is:

Whether the death of deceased No. 1-3 and injuries of the remaining coolies travelling in the Tractor- Trailer driven by the petitioner/accused is on account of rash and negligent driving by the petitioner/accused?

9. A perusal of the record goes to show that the

petitioner/accused did not deny the said accident. However, with

regard to his identity though he disputed the same, there is no 6 RRN,J Crl. RC.No.522 of 2016

substantial evidence to disprove the same, except the suggestions

in the cross-examination of the injured witnesses. The Trial

Court based on the Ex-P10 to Ex-P31 and Ex.P36 which are

Inquest panchnamas of deceased, wound certificates of injured

and post mortem reports of the deceased, and the oral evidence,

which is not disputed by the revision petitioner/accused No.1,

found that he drove the tractor-trailer which involved in the said

accident resulting in death of deceased No.1 to 3 and injuries to

other witnesses. There is no material placed or resistance shown

by the revision petitioner/accused No.1 with regard to the above.

10. However, it is necessary that the matter is to be viewed

and decided whether the accident leading to death and injuries to

the coolies, was due to rash and negligent driving of the

petitioner/accused. To prove the same, the prosecution got

examined PWs.2 to 18, 25 and (LW6) who were the persons

travelling in the tractor-trailer along with the deceased No.1-3. All

of them deposed that the petitioner/accused drove the vehicle at

a high speed and in a rash and negligent manner which resulted

in delinking the trailer from the tractor and turned turtle, which

led to the tragic incident. The prosecution got marked Ex-P37

M.V.I report which was authored by the Motor Vehicles Inspector, 7 RRN,J Crl. RC.No.522 of 2016

Wyra, and he opined that it was the petitioner/accused who

drove the said vehicle and there was no mechanical defect. The

trial Court in view of the above, observed as follows:

"m) ...... Ex.p.35 is the crime detail form marked through investigation officer, as seen from the same, there was a turning at the scene of offence. While vehicle taking turn, the driver must be very cautious, that too when some people boarded on it, though the witnesses to the crime detail form not supported the case of the prosecution, the accused No.1 not denied the contents of CDF and it is not the case of accused No.1 there is no such turning. Of course learned defence counsel has elicited that there are pits on the road, as such there is no scope of driving tractor speedily. Except suggesting the same to prosecution witnesses A.1 has not stated the same anywhere. Further even let us presume for a moment that there are pits on the road, the driver i.e.,A.1 is expected to drive very cautiously on the pits on the road and near a turning."

11. A careful reading of the above observation of the trial

Court which was confirmed by the Appellate Court would reveal

that the Courts below came to a conclusion that the revision

petitioner/accused No.1 drove the said vehicle in a rash and

negligent manner at a high speed based on the crime details form

which depicted that the accident occurred at a turning and also

on the oral evidence of all injured witnesses. Apart from this,

there is no evidence to prove that the said vehicle was driven at a

high speed. The trial Court despite observing that the defence

Counsel elicited that there were pits on the road, found that the

vehicle was driven rashly and negligently without caution. The

Courts below failed to observe that nowhere in the record has the 8 RRN,J Crl. RC.No.522 of 2016

approximate speed at which the vehicle was being driven, is

elicited by the prosecution so as to the trailer get de-linked and

turned turtle. The aspect of weight distribution of the victims on

the trailer causing it to turn turtle was also not elicited either by

the prosecution or the revision petitioner/accused No.1 which

gives a reasonable doubt in favour of the petitioner/accused.

Hence, the benefit of doubt must go to the revision

petitioner/accused No.1.

12. The further basis of conviction of the

petitioner/accused is in light of Ex.P37/MVI report. The counsel

for the petitioner vehemently argued that the non-examination of

the Motor Vehicles Inspector, Wyra, is fatal to the defence as he

is the author of Ex.P37 and a chance to cross-examine him to

elicit truth did not take place. The Appellate Court observed that

the non-examination is not fatal to the case as the stand of the

petitioner/accused is not that the accident occurred due to

mechanical defect as the same can be seen from the tenor of the

cross-examination of the prosecution witnesses. This is not

viable as the defence tends to pose questions to the prosecution

witnesses as necessary, to elicit the truth, whereas when the

author of Ex.P37 was not examined, the defence could not have 9 RRN,J Crl. RC.No.522 of 2016

suggested questions to other witnesses to prove their contention.

Hence, the finding of the Courts below that the non-examination

of the Motor Vehicles Inspector is not fatal to the case, is

erroneous. No accused shall suffer due to the inadequate

defence taken by him. It is the Courts' duty to peruse the

material on record and the aspects which are absent, before

coming to a conclusion vis-ā-vis the guilt of the accused.

13. At this juncture, this Court has no hesitation in

concluding that the prosecution failed to bring home the guilt of

the revision petitioner/accused No.1 beyond all reasonable doubt

for the offence punishable under section 304A of IPC and

deserves to be acquitted of the said charge.

14. With regard to the conviction under Section 3 read

with 181 of the Motor Vehicles Act, that the revision

petitioner/accused No.1 was driving the vehicle without licence

and a perusal of the record shows that the revision

petitioner/accused No.1 failed to produce any evidence proving

that he has an authorized driving licence. The counsel for the

revision petitioner contended that neither documentary nor oral

evidence was adduced by the prosecution to prove that the 10 RRN,J Crl. RC.No.522 of 2016

revision petitioner was not licensed. This plea cannot be

accepted as there is no assertion or evidence on behalf of the

revision petitioner/accused No.1 that he does have a valid driving

license. As such, the conviction and sentence passed by the

Courts below with regard to Section 3 read with 181 of the Motor

Vehicles Act against the revision petitioner/accused No.1, is

justified.

15. In the result, the Criminal Revision Case is partly

allowed and the conviction and sentence imposed on the revision

petitioner/accused No.1 by the learned Principal Sessions Judge,

Khammam, in Crl. Appeal No.165 of 2014 dt.03.02.2016,

confirming the conviction and modifying the sentence of

imprisonment from two years to one-and-half years for the

offence punishable under Section 304A of Indian Penal Code

imposed, is set aside and he is acquitted of the charged offence

and the fine amount, if any, paid by the revision

petitioner/accused No.1 shall be returned to him. However, the

fine amount of Rs.500/- imposed against the revision

petitioner/accused No.1 by the Courts below for the offence

under Section 3 read with 181 of the Motor Vehicles Act, is

hereby confirmed.

                                11                         RRN,J
                                                  Crl. RC.No.522 of 2016

Since the revision petitioner/accused is on bail, his

bail bonds shall stand cancelled.

As a sequel, pending miscellaneous applications, if any

shall stand closed.

_____________________________________ NAMAVARAPU RAJESHWAR RAO,J

14th day of February, 2023 BDR