THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL REVISION CASE No. 8 OF 2009 Date: 5th November, 2011 Between: Mohd. Anwar …..Petitioner And The State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …..Respondent THE COURT MADE THE FOLLOWING: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL REVISION CASE No. 8 OF 2009 ORDER: The Criminal Revision Case is field by the accused in C.C.No.182 of 2006 on the file of the Special Judicial Magistrate of First Class (Excise), Karimnagar against the conviction and sentence imposed upon him for the offences punishable under Sections 304-A, 337 and 338 of the Indian Penal Code, 1860 (for short “IPC”) on 13.12.2007 and the same was confirmed on 31.12.2008 in Criminal Appeal No.3 of 2008 on the file of the V Additional Sessions Judge, Karimnagar. The case of the prosecution is that the petitioner herein is the driver of a Qualis van bearing No.AP/11-H-7766, on 19.11.2004 at about 1-45 p.m., when he was driving it from Hyderabad to Ramagundam along with about 12 persons and due to the rash and negligent driving and dashed against a lorry bearing No.AAT 4797 at Renikunta, as a result of which, two persons died and the occupants of the vehicle received injuries. Thereafter, on the complaint given by the driver of the lorry, a case was registered and investigated into and the case was prosecuted. During the trial, on behalf of the prosecution, P.Ws.1 to 19 were examined and marked Exs.P.1 to P.18 and on behalf of the accused, Ex.D.1 was marked. After the evidence of the prosecution is over, the accused was examined under Section 313 of Criminal Procedure Code, 1973 (for short “Cr.P.C.”) and after considering the arguments, the learned Magistrate has convicted the accused for the offences punishable under Sections 304-A, 337 and 338 of IPC and passed the following sentence: “Simple imprisonment for a period of one year and to pay a fine of Rs.5,000/- (Rupees five thousand only) for the offence under Section 304-A IPC in default to suffer simple imprisonment for one month and also sentenced to pay a fine of Rs.1,000/- (Rupees one thousand only) in default suffer simple imprisonment one week for the offence under Section 338 IPC and also further sentenced to pay a fine of Rs.500/- (Rupees five hundred only) in default to suffer simple imprisonment for one week for the offence under Section 337 IPC, total fine of Rs.6,500/- (Rupees six thousand five hundred only). In the appeal also, the above conviction and sentence confirmed”. The points that arise for consideration are: i) Whether the prosecution has proved that the incident was happened due to the rash and negligent driving of the vehicle by the accused? ii) Whether the conviction and sentence imposed by the lower courts is legal and sustainable? POINTS: Insofar as the factum of the accused being the driver of the Qualis that was involved in the accident is concerned, there is no serious dispute and P.Ws.4 to 9 who are the injured persons and who travelled in the Qualis have deposed about the incident. P.W.2 is the driver of the lorry, who lodged the complaint and according to the complainant, when the accused was trying to overtake the lorry, he dashed against the lorry causing the incident. He identified the accused and also the complaint in Ex.P.2 given by him. It was suggested to him that the incident was happened due to his fault. The learned counsel for the revision petitioner contends that the evidence of P.W.2 is contrary to the evidence of P.Ws.4 to 9, who are the injured persons, since they deposed that the driver of the vehicle has hit a stationed lorry and the stationed lorry was not parked with any indicators or safety measures and consequently, there is no rashness and negligence on the part of the revision petitioner. According to him, when there is a variation in the version of the prosecution witnesses and the prosecution case, the benefit of doubt would have been given to the accused. He relied upon the following decisions. (1) State of UP v Rajaram & Others[1] 2) State of Orissa v Simhachal Gowda[2] According to him, the panchanama of scene also reflects the same. In considering the rashness and negligence of the driver of the vehicle, it is not the speed alone that has to be taken into consideration. Evidently, the incident is said to have taken place at about 11.30 p.m. at Renikunta village, it cannot be a time where the driver of the vehicle is generally expected to be sleepy. Therefore, the degree of caution and care at that stage cannot be high. Even if the vehicle is to be parked without signals, the fact that the Qualis has got the headlights and by reasonable care and caution, he could have noticed the stationed lorry, cannot be ruled out. Therefore, even if the interested version of P.Ws.4 to 9 probably to help the revision petitioner as to the nature of the incident is accepted, it clearly goes to show that being not able to control the speed and being not able to take the view of the lorry, which was even if stationed, the incident has happened due to the fault of the revision petitioner and due to his rashness and negligence. Even if the evidence of P.W.2 is accepted, it clearly goes to show that while accused was trying to overtake the lorry, it was hit. The panchanama at the scene of offence will be naturally conducted after the incident and the stationing of the lorry till the panchanama is conducted at the scene is no ground to accept the version of the revision petitioner that the vehicle was stationed. Therefore, from the material evidence on record, it is a clear case where the revision petitioner, being the driver of the Qualis, went behind the lorry, could not control the speed and did not take reasonable and proper care of noticing the vehicle, and caused incident. Consequently the finding of the lower courts about the rashness and negligence on the part of the revision petitioner cannot be said to be based on no evidence. The inconsistency, if any, will not enure the benefit of the revision petitioner and the conviction of the accused for the offence under Section 304-A of IPC for rashness and negligence attributed to him cannot be said to be bad. The learned counsel for the revision petitioner relied upon the decision reported in Dhanpal Singh v. State[3] for reduction of the sentence. Evidently, it is a case where two persons have died and about five persons have received injuries and the sentence of imprisonment cannot be said to be excessive and there are no grounds to reduce the sentence of imprisonment. Accordingly, there are no merits in the case and the revision case is dismissed. The lower court is directed to give warrant to accused to serve sentence. ________________________ N.R.L. NAGESWARA RAO, J 5th November, 2011 TJMR THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL REVISION CASE No. 8 OF 2009 DATE: 05-11-2011 TJMR [1] 2008 (1) ALT (Crl) 35 SC [2] 1997 Crl. LJ 1816 DB Orissa [3] 2004 Crl.L.J. 2724