IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SIXTEENTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No : 1929 of 2003 Between: Basheer Khan . .Petitioner And State of Andhra Pradesh, rep. By Public Prosecutor. .. Respondent THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No : 1929 of 2003 ORDER : This Criminal Revision Case under Section 397 and 401 of Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’) is directed against the Judgment dated 18.12.2003 made in Criminal Appeal No.1 of 2003 on the file of Additional Sessions Judge, Hindupur. 2) The brief facts that are necessary for the disposal of the revision may be stated as follows: On 09.10.2000 at about 10.30 P.M the accused was driving the lorry bearing No.AP 02 V 3240 from Hindupur to Allipuram village of Karnataka state with cattle load. When the lorry reached near poultry farm situated near Santhebidanur cross road, the accused lost control over the vehicle. As a result, he dashed to a tamarind tree situated towards eastern side of the road resulting the death of two persons, who were traveling in the lorry and also sustaining grievous injuries by three persons. The police registered a case basing on the report given by P.W-1. They held inquest over the dead bodies of the deceased and sent the injured to the hospital. The doctors, who conducted post mortem examination over the dead bodies opined that the deceased died due to grievous injuries sustained by them in the accident. The crime lorry was subjected to inspection by the Motor Vehicles Inspector, who gave a report that the accident was not caused due to any mechanical defects in the vehicle. After completion of investigation, the police filed the charge sheet. 3) When the accused was examined under Section 251 Cr.P.C. for the offences punishable under Sections 304-A and 338 of Indian Penal Code (for short ‘I.P.C’), for which the accused pleaded not guilty and claimed to be tried. 4) To substantiate its case, prosecution examined P.Ws 1 to 18 and got marked Exs.P-1 to P-15. No evidence either oral or documentary was adduced on behalf of the accused. 5) On consideration of entire oral and documentary evidence available on record, the learned Judicial Magistrate of First Class, Hindupur, vide judgment dated 03.12.2002 in C.C. No.982 of 2000 convicted and sentenced the accused to undergo simple imprisonment for two years of the offence punishable under Section 304-A of I.P.C, further sentenced to undergo simple imprisonment for one year and also to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for one month of the offence punishable under Section 338 of I.P.C. On appeal, the learned Sessions Judge while confirming the conviction of the offence punishable under Section 304-A of I.P.C. and also conviction and sentence of the offence punishable under Section 338 of I.P.C., but modified the sentence from two years to one year of the offence punishable under Section 304-A of I.P.C. in addition to payment of fine of Rs.5,000/-. Challenging the same, the present criminal revision case is filed. 6) Now, the point that arises for determination is, whether the judgments of both the Courts below are correct, legal and proper? 7) The learned counsel appearing for the petitioner contended that there is no evidence to show that the petitioner drove the vehicle in a rash and negligent manner at the time of accident, that in his 20 years of experience, he did not cause any other accident, that both the Courts have not appreciated the evidence in a right perspective and hence, he prays to set aside the convictions and sentences recorded against the petitioner. 8) On the other hand, the counsel representing the learned Public Prosecutor contended that concurrent findings of the two Courts below need not be interfered with as the findings are based upon proper appreciation of evidence, that the evidence of P.Ws 1 to 3 and 6 is very clear that the accident was caused due to negligent driving by the petitioner and hence, he prays for dismiss the revision. 9) There cannot be any dispute that the prosecution has to prove the rash and negligence on the part of the driver of the vehicle. Rashness does not consist of high speed, but consists of not taking proper care and caution in driving the vehicle and not following the rules of road safety. On the other hand, negligence is a gross culpable neglect or failure to exercise such care and caution that may be required to be taken in the circumstance of the case. The accident took place at about 10.30 P.M in the night. There is no dispute with regard to the taking place of the accident. The accident was not caused due to any mechanical defect of the vehicle as seen from the evidence of the Motor Vehicle Inspector. It is also not in dispute that the cause of the death of two persons who were traveling in the lorry was due to accident. It is also not in dispute that P.Ws 1 to 3 and 6 sustained grievous injuries. There is evidence on record which would go to show that no other vehicle was coming in the opposite direction while the petitioner was driving the offending lorry. The lorry went out of the road and dashed to a tamarind tree. The impact was so severe that the body of the lorry was damaged so severely. One person died on the spot and another person died on the way to hospital. Cabin of the said lorry was also severely damaged. P.Ws 1 to 3 and 6 may not be knowing as to why the driver swerved the lorry to the extreme left side of the road. But, their evidence is clear that the lorry was going with high speed. It went out of the road and dashed a tree. There is evidence on record, which would go to show that none of the head lights is not so bright. In such circumstances, the driver ought to have taken all reasonable precautions so as to avoid any untoward incident. If he has been driven carefully and cautiously and in a controllable speed, there is no other reason for vehicle to went out of the road and dashed a tamarind tree. Therefore, in such circumstances, dashing itself is a rash and negligent act. The trial Court after proper appreciation of evidence on record, rightly found him guilty. The findings are based upon the proper appreciation of evidence on record. None of the finding is shown to be incorrect or illegal or improper. Therefore, the conviction of the accused of the offence punishable under Section 304-A of I.P.C. is liable to be confirmed. 10) However, having regard to the fact that the accident has taken place more than a decade ago, the petitioner claims that he did not cause any accident in his career as a driver for about 20 years, that he is having wife and children, a lenient view can be taken with regard to the sentence. 11) In the result, the conviction of the petitioner-accused of the offence punishable under Section 304-A of I.P.C, is confirmed but reducing the sentence from one year rigorous imprisonment to six months rigorous imprisonment while maintaining the fine amount with default clause and also confirming the conviction and sentence recorded against the petitioner-accused of the offence punishable under Section 338 of I.P.C. Both the sentences run concurrently. Period of remand, if any, undergone by the petitioner-accused during the course of investigation, trial and after conviction shall be given set of under Section 428 of Cr.P.C. 12) With the above modification, the Criminal Revision Case is dismissed. _________________ JUSTICE K.C.BHANU November 16, 2009 KSH