THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. R.C.No.170 of 2006 Date: 24.03.2011 Between: Shaik Mahaboob Saheb .. Petitioner AND State of A.P., rep.by its Public Prosecutor, High Court of A.P., Hyderabad. .. Respondent THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C. No.170 of 2006 ORDER: The petitioner is the sole accused. He was the driver of the lorry bearing registration No.KA-25-6199. On 24.05.2001, while the deceased, Boya Laleppa was crossing the road along with his brother- PW.1, the accused-revision petitioner drove the lorry in a rash and negligent manner and hit the deceased leading to the instantaneous death of the deceased. The prosecution was launched against the accused for the offence u/s.304-A IPC. 2. The prosecution cited 10 witnesses and has examined 9 witnesses. The only witness who was not examined by the prosecution was one of the two witnesses who participated in the inquest. As many as six documents were exhibited by the prosecution. Holding that the prosecution proved the guilt of the accused, the learned Judicial Magistrate of First Class, Alur found the accused guilty of the offence u/s.304-A IPC and sentenced the accused to rigorous imprisonment for six months and fine of Rs.3,000/- with appropriate default sentence. 3. The accused preferred Criminal Appeal No.163 of 2004 before the II Additional Sessions Judge, Kurnool at Adoni. Through the impugned judgment, the learned Additional Sessions Judge confirmed the judgment of the trial Court. He also confirmed the conviction and sentence of imprisonment recorded against the accused. So far as the fine is concerned, the learned appellate Judge confirmed the quantum of sentence imposed against the accused but modified the default sentence. 4. Sri S.D. Goud, the learned counsel for the petitioner- accused contended that the offence is not made out against the accused in the sense the accused was not found driving the offending vehicle in a rash and negligent manner. PW.1 is the primary witness in this case. He was the brother of the deceased. The deceased was accompanying him at the time of accident. PW.1 was an eye witness for the accident. PWs.2 to 4, who were neighbours of the locality also witnessed the accident. PWs.2 to 4 claimed that the accident was due to the rash and negligent driving of the accused in driving of the oil tanker. 5. PW.1 deposed in his evidence that the accident would not have occurred had the deceased not attempted to cross the road at the relevant time. The learned counsel for the petitioner contended that PW.1 thus admitted that it is the negligence of the deceased himself which led to the accident. It may be recalled that no suggestion was given to PW.1 that the accident was on account of the negligent walking of the deceased on the road in disregard of the traffic. Placing reliance upon Braha Dass v. State of H.P.[1], the learned counsel for the petitioner-accused contended that it is for the prosecution to establish the guilt of the accused for the offence u/s.304-A IPC beyond reasonable doubt. The Supreme Court observed in the cited case that for the offences 279, 337 and 304 IPC, the prosecution must establish the element of rashness or negligence. It is the contention of the learned counsel for the accused that the evidence of PW.1 and the evidence of PWs.2 to 4 neither established rashness nor negligence. 6. I am afraid that the contention of the learned counsel for the petitioner-accused cannot be countenanced. The facts are that PW.1, elder brother of the deceased crossed the road and the deceased was crossing the road when the lorry driven by the accused went onto the road and hit the deceased. PWs.2 to 4 in one voice deposed that the driver was driving the lorry in a rash and negligent manner. The evidence of PWs.1 to 4 established both rashness as well as negligence. The conviction of the accused by the trial Court and the confirmation of the same by the appellate Court for the offence u/s.304-A IPC, therefore, does not call for any interference. 7. Regarding the quantum of sentence, it may be noticed that the accident occurred in 2001. The petitioner was describing to be 44 years when at the time of laying of the charge sheet. Perhaps, the petitioner is 54 years old as on today. Added to it, it is not on record that the petitioner was involved in any other motor vehicle accident after the accident in this case. Taking the age of the petitioner into consideration and taking the nature of the offence committed by the petitioner at the same time into consideration, I deem it appropriate to modify the sentence to rigorous imprisonment for a period of one month and fine of Rs.3,000/-, in default of payment of which to undergo simple imprisonment for a period of one month. 8. The Criminal Revision Case is, accordingly, disposed of confirming the conviction recorded by the trial Court and the appellate Court, but modifying the sentence to rigorous imprisonment of one month and fine of Rs.3,000/-, in default of payment of which, to undergo simple imprisonment for a period of one month. The petitioner, indeed, is entitled to the benefit of Section 428 Cr.P.C. ________________ K.G. SHANKAR, J Date: 24.03.2011 Isn [1] CDJ 2009 SC 1300