IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: HYDERABAD FRIDAY, THE NINTH DAY OF JULY TWO THOUSAND AND TEN PRESENT: HONOURABLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.98 OF 2006 BETWEEN: Somayajulu Sudhakar S/o. Sreenivasulu …. Petitioner AND State of Andhra Pradesh, Rep. by Public Prosecutor, High Court of A.P., Hyderabad. …. Respondent HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.98 OF 2006 ORDER: Aggrieved by the judgment dated 18-01-2006 in C.A. No.144 of 2002 on the file of the Court of the Sessions Judge, Nellore in confirming the judgment dated 27-08-2002 in C.C. No.475 of 1998 on the file of the II Additional Judicial Magistrate of First Class, Nellore, whereunder and whereby the petitioner was convicted under Section 304-A IPC and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.2,000/-, in default to undergo simple imprisonment for a period of one month and further convicted and sentenced to undergo simple imprisonment for a period of three months for the offence punishable under Section 337 IPC. 2. The brief facts that are necessary for disposal of the revision case may be stated as follows: While the deceased and PW-2 were coming on the cycle on the road, the oil tanker bearing registration No.A.P.26/T-2695 driven by the petitioner dashed the cycle, as a result, the deceased and PW-2 sustained injuries and the deceased died due to injuries. PW-2 lodged a complaint and the police registered a case in Crime No.40 of 1998, went to the scene of occurrence, observed the scene of occurrence and held inquest on the dead body of the deceased and the dead body was subjected to postmortem examination. After completion of investigation, the police filed charge sheet against the petitioner for the offences punishable under Sections 304-A & 337 IPC and 134 (a) & (b) read with 187 of the Motor Vehicles Act. 3. When the petitioner was examined under Section 251 Cr.P.C. for the offences punishable under Sections 304-A & 337 IPC and 134 (a) (b) read with 187 of the M.V. Act, he denied the offences, pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 to 9 and got marked Exs.P-1 to P-10. 5. After closure of the evidence of prosecution, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same. The accused did not choose to examine any witness but marked Exs.D-1 to D-3. 6. The trial Court upon considering the evidence of PW-2, found the petitioner guilty and accordingly he was convicted and sentenced as stated supra. On appeal, the appellate Court confirmed the convictions and sentences recorded by the lower Court against the petitioner. Challenging the same, the petitioner filed this revision. 7. Learned counsel for the petitioner contended that identity of the petitioner as driver of the crime lorry is not established, that PW-8, who is the owner of the crime lorry, has categorically stated that the petitioner was not his driver therefore, the evidence of PW-2 was contradicted by the evidence of PW-8; that the best available evidence, namely, the trip sheet of the vehicle was not seized by the police, which is a lacuna on the part of the prosecution and hence, he prays to set aside the convictions and sentences recorded against the petitioner. 8. On the other hand, the learned counsel representing the learned Public Prosecutor contends that the evidence of PW-2 is very clear that the petitioner is the driver of the crime lorry, that he drove the lorry in a rash or negligent manner and dashed their cycle, that both courts have rightly convicted the petitioner and that there are no grounds to interfere with the concurrent findings of the Courts below and hence, she prays to dismiss the revision. 9. Now the point for determination is whether the findings of both the Courts below are correct, legal and proper ? 10. There cannot be any dispute that revisional powers of this Court under Sections 397 and 401 IPC are truncated. Unless it is shown that any one of the findings of the trial Court or appellate Court is perverse or not based upon any evidence or inadmissible evidence has been taken into consideration or admissible evidence is overlooked, ordinarily, this Court will not interfere with the concurrent findings of the Courts below. 11. To prove the charge under Section 304-A IPC, the prosecution has to prove the rashness or negligence on the part of the driver of the crime vehicle. Rashness does not consist in high speed but consists of not keeping the rules of the road and the safety. Negligence, on the other hand, is a gross culpable neglect or failure to exercise such care and caution that may be taken while driving the vehicle. 12. The death of the deceased is not in dispute. The police conducted inquest on the dead body of the deceased and filed Ex.P-3 inquest report, in which it is stated that the deceased died due to injuries sustained by him. Similarly, PW-9 Doctor, who conducted autopsy on the dead body of the deceased and issued Ex.P-10 postmortem report, opined in Ex.P-10 that the deceased died due to injuries sustained by him. Therefore, it can be said that the deceased died due to the injuries sustained by him in the accident. 13. Now, the question is whether there was negligence on the part of driver of the crime vehicle. Though PWs.1 and 5 stated that the lorry came behind and dashed the deceased and PW-2, but, at the same time they did not identify the driver of the lorry. As seen from their evidence, it is clear that the deceased and PW-2 were going on a cycle and the crime lorry came behind and dashed to them. As the deceased and PW-2 were proceeding ahead of the lorry, they would be visible to the driver of the lorry from a long distance and he can warn them by blowing the horn, but that was not done. No explanation was offered by the driver of the lorry as to why he went to the extreme left side of the road. Therefore, from the evidence of PWs.1 and 5, it is clear that the accident was occurred due to rash and negligent driving of the lorry by the petitioner. 14. Coming to identification of the petitioner, PW-2, who is an eyewitness to the accident, identified the petitioner as the driver of the lorry at the time of the accident and that he (PW-2) lodged FIR. PW-8, who is the owner of the crime lorry, contradicted the evidence of PW-2 by stating in his evidence that the petitioner was not the driver of the lorry. But he has not produced the trip sheet of the lorry on the date of the incident. Trip sheet would be the best piece of evidence to be produced by PW-8. But, he has not done so. Similarly, the investigating officer has not taken proper steps to seize the trip sheet, which contains the name of the driver of the vehicle. Some illegalities committed by the investigating officer during the course of investigation, cannot be taken advantage by the petitioner. Therefore, there is no reason to reject the evidence of PW-2, who was admittedly present at the time of accident, in view of the fact that both the Courts below placed reliance on his evidence. So, none of the findings of both the Courts below is shown to be perverse or not based upon any evidence on record. Hence, there are no grounds to interfere with the same. 15. The Criminal Revision Petition is, accordingly, dismissed confirming the judgment dated 18-01-2006 in C.A. No.144 of 2002 on the file of the Court of the Sessions Judge, Nellore. Period of remand, if any, undergone by the petitioner during the course of investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C. ____________ K.C. BHANU, J July 09, 2010 KTL