HONOURABLE SRI JUSTICE G. CHANDRAIAH CRIMINAL REVISION CASE No. 71 OF 2005. DATED 2ND SEPTEMBER, 2010. BETWEEN Shaik Jilani ….Petitioner/accused and The State of A.P., Rep. By Public Prosecutor High Court of A.P., Hyderabad. …Respondent/Complainant HONOURABLE SRI JUSTICE G. CHANDRAIAH CRIMINAL REVISION CASE No. 71 OF 2005 ORDER: This Criminal Revision Case under Sections 397 and 401of the Code of Criminal Procedure, 1973 (Cr.P.C.) is directed against the judgment dated 19.01.2005 in Criminal Appeal No.52 of 2004 on the file of the XI Additional District & Sessions Judge, Fast Track Court, Guntur, confirming the conviction and sentence imposed against the petitioner/accused in the judgment dated 19.01.2004 in C.C.No. 325 of 2003 on the file of the VII Additional Munsif Magistrate, Guntur, for the offence punishable under Section 304 (A) IPC. The prosecution case, as delineated by the witnesses examined on its behalf, may be stated as follows: On 26.08.2003 at about 10.00 a.m. when P.Ws. 1 and 2 were proceeding to their house from Venkatreddy Elementary School along with their daughter by name Farida, aged about seven years and when they reached Gajjanagundla centre near Indira Gandhi Statute, the accused, being the driver, drove the bus bearing No. AP 7T 3027 in rash and negligent manner, at high speed and without blowing horn, and dashed against Farida, due to which, said Farida fell down and the left tyre of the bus ran over the baby of Farida. Immediately after the accident, the accused stopped the bus and he along with P.Ws.1 and 2 shifted Farida to Government Hospital and at about 12.15 p.m. she succumbed to injuries while undergoing treatment. Thereafter a case in crime No.105 of 2003 was registered against the accused for the offence punishable under Section 304 (A) IPC. After completion of investigation and receipt of Motor Vehicle Inspector report, Postmortem certificate and other relevant documents, the then Sub Inspector of Police filed charge sheet. To substantiate the case of the prosecution, it examined 9 witnesses on its behalf as P.Ws.1 to 9 and got marked Exs.P.1 to P.10 besides the case property M.O.1. After closure of the prosecution evidence, when the accused was examined under Section 313 Cr.P.C., as to the incriminating circumstances brought against him in the evidence of prosecution, he denied the same. The accused did not choose to examine any defence witness nor mark any documents on his behalf. The trial Court, after full-fledged trial and considering the evidence adduced by the prosecution, both oral and documentary, came to the conclusion that the accident occurred due to rash and negligent driving of the crime bus by its driver and that at the relevant point of time, the accused/petitioner was the driver of the crime bus and thereby found the accused guilty for the offence punishable under Section 304(A) IPC and accordingly convicted and sentenced to undergo one year simple imprisonment and to pay fine of Rs.500/- in default to suffer one month imprisonment. Challenging the same, the petitioner/accused preferred appeal in Criminal Appeal No. 52 of 2004 in the Court of the XI Additional District & Sessions Judge (FTC), Guntur, inter alia contending that the accused was not the driver of the crime vehicle at the relevant point of time and that the trial Court based on the evidence of P.Ws. 1 and 2 came to wrong conclusion about the identity of the driver. The lower appellate Court, on re- appreciation of the evidence on record, dismissed the Criminal Appeal, confirming the conviction and sentence recorded by the trial Court. Now, the points that arise for consideration are whether the prosecution proved the guilt of the accused beyond reasonable doubt for the charge levelled against him and whether the judgments of the Courts below are correct and proper. The learned Counsel for the appellant contended that the ingredients to constitute the offence punishable under Section 304(A) IPC have not been made out against the accused by the prosecution; that the evidence of P.Ws.1 and 2 is highly interested and there are discrepancies in the testimony of P.Ws.1 and 2, who are the father and mother of the deceased, Farida; that the evidence of P.Ws.1 to 9 did not support the case of prosecution case and that P.W.5 deposed that at the time of accident, the petitioner/accused was not the driver of the crime bus and therefore prayed to set aside the conviction and sentence imposed by the trial Court and confirmed by the lower appellate Court. On the other hand, the learned Additional Public Prosecutor contended that the accident took place due to rash and negligent driving of the crime bus by its driver, that both the Court below rightly came to conclusion that the accused was the driver of the crime bus at the relevant point of time and therefore, the trial Court as well as lower appellate Court upon consideration of the evidence rightly convicted the accused and there are no grounds to interfere with the same. There is no dispute with regard to the occurrence of the accident, as well as death of daughter of P.Ws. 1and 2, by name Farida aged about 7 years. There is also no dispute with regard to the involvement of the bus bearing No.AP 7T 3015. It is only the case of the accused that he was not the driver of the said bus at the relevant point of time and one Kishore was the driver, who caused the accident. Even the accused did not dispute the manner in which the accident took place. It is also not the case of the accused that the deceased ran across the bus. According to the case of prosecution, on the fateful day, i.e. 26.08.2003 at about 10.00 a.m. when the P.Ws.1 and 2 were proceeding to their house from Venkatreddy Elementary School along with their daughter by name Farida aged about seven years and when they reached Gajjanagundla centre near Indira Gandhi Statute, the accused, being the driver, drove the bus bearing No. AP 7T 3027 in rash and negligent manner, at high speed and without blowing horn, and, dashed against Farida, due to which, Farida fell down and the left tyre of the bus ran over the baby Farida. Immediately after the accident, the accused stopped the bus and he along with P.Ws. 1 and 2 shifted the Farida to Government Hospital and at about 12.15 p.m. she succumbed to injuries while undergoing treatment. Thereafter a case in crime No. 105 of 2003 was registered against the accused for the offence punishable under Section 304 (A) IPC. Therefore, the petitioner/accused was prosecuted for the said offence on account of causing death of Baby Farida due to rash and negligent driving of the crime bus. P.W.1 was the defacto complainant and eye witness to the accident. He deposed that on 26.8.2003 himself and his wife P.W.2 took his daughter by name Farida to Venkat Reddy Elementary School and as she did not intend to stay in the said school, they returned to their house with baby Farida and when they reached near Gujjanagundla centre and while purchasing fruits on fruits hawker side by the road margin, the accused being driven the bus bearing Registration No.AP 7T 3025 in rash and negligent manner, at high speed, and without blowing horn, dashed against the baby Farida and the bus ran over the body of his daughter. After the accident, the accused and himself took Farida to Government Hospital, Guntur, where she succumbed to injuries while undergoing treatment. P.W.2 who is the mother of the deceased baby Farida, deposed in similar lines to P.W.1. Even during their cross examination, nothing worthwhile was elicited to show that the incident narrated by them is false. P.W.3 deposed that on that day he heard the sound of accident at Gujjanagundla centre and found one girl aged about 5 to 6 years lying on the road with bleeding injuries and witnessed while one person shifting the girl to hospital. P.W.4 also deposed in the same manner. P.W.5 was working as supervisor of the crime bus on the relevant date of incident. He deposed that the crime bus dashed against the girl aged about 7 years and after the accident, the driver of the bus stopped the bus and fled away and on seeing that himself and the accused who was the regular driver of the bus shifted the injured to Government Hospital. He further deposed that one Kishore was the temporary driver of the crime bus at the relevant point of time and she succumbed to injuries. From the above, it is not in dispute that the accident occurred due to rash and negligent driving of the crime bus by its driver. Now, let us consider as to identity of the driver who drove the crime bus at the relevant point of time and responsible for death of baby Farida in the accident in question. On a careful scrutinizing the evidence of P.Ws. 1 to 5, the evidence of P.Ws. 1 and 2 is crystal clear that the accident was occurred due to the rash and negligent driving of the bus by its driver and at that time of accident, the accused was the driver of the bus. Further, as the accused helped P.Ws.1 and 2 to carry the injured to the hospital, there was sufficient time to identify the driver of the crime bus. Even the same is corroborated by the evidence of P.W.9, the Investigating Officer who also categorically deposed that the accused was the driver of the bus at the relevant time of accident as per his investigation. However, P.W.9 did not seize the statistical trip sheet of the crime bus as well as tried to examine the owner of the bus so as to find out as to who was the driver at the relevant point of time. However, the said lapse on the part of P.W.9 may not brush aside the trustworthy of evidence of P.Ws.1 and 2. Further, it is to be seen that there is no enmity between the accused and P.Ws.1 and 2 so as to falsely implicate him in the crime. There is no reason for P.Ws.1 and 2 to leave the real culprit and falsely implicate the accused person who helped them in bringing their daughter to the hospital. Further, during the cross examination of the accused under Section 313 Cr.P.C., he stated that he was not the driver of the city bus, but on that day he came to the centre to join duty. In support of his contention, P.W.5 who was the supervisor of the city bus stated that after the accident, the driver stopped the bus and fled away. But, he deposed before the police that the accused was the driver of the crime bus. However, in the evidence box, he stated in different version. In cross examination, he deposed that on the date of accident, the conductor maintained the trip sheet and in that the driver and conductor names are mentioned. The accused also admitted that from the place of the accident, he shifted the deceased to the Government Hospital. If really the accused was not the driver of the crime vehicle, there is no chance for the accused to come into the city bus at the time of the accident. Because, he stated in his cross examination that he came to the centre to join the duty and at that time, the deceased girl fell under the bus and on seeing that he took the girl to the hospital, which cannot be appears to be believable. Therefore, looking from any view of the angle, and on thorough scrutinizing the evidence on record, particularly the evidence of P.Ws. 1 to 5 and 9, I am of the firm opinion that both the trial Court as well as the lower appellate Court rightly reached conclusion that the deceased Farida died in the road accident due to rash and negligent driving of the crime bus by its driver and at that time, the driver of the crime bus was the accused, who is responsible for causing the accident and death of the deceased. It is needles to state that the powers of the High Court in exercising its jurisdiction under Sections 397 and 401 of Cr.P.C. are truncated and unless the ﬁnding recorded by the Court below is shown to be perverse or incorrect or illegal or not based on any evidence on record, the judgment under challenge needs interference. In the present case, on a perusal of the evidence available on record and on hearing the learned Counsel appearing on either side, this Court ﬁnds no illegality or irregularity or perversity in the ﬁndings recorded by the Courts below so as to interfere with the same. However, the learned Counsel for the petitioner conﬁning his argument to the inﬂicting of the sentence, submitted that the petitioner has suﬀered a stigma of conviction in the society; that the incident took place in a spur of moment; that after lapse of seven years of the incident, if the petitioner is sent to prison, the same may cause prejudice to him and that the petitioner is now aged about 36 years, and he has to look after his family members as he being their breadwinner. Hence, the learned Counsel submitted that the petitioner can be shown some lenience insofar as the sentence ordered by the Court below is concerned. As there is no serious objection from the side of the learned Public Prosecutor, this Court, considering the facts and circumstances of the case, evidence available on record, and submission of the learned Counsel for the petitioner, thought it ﬁt to show some lenience on the petitioner. Considering the same, the conviction recorded by the Courts below is conﬁrmed, however, sentence recorded against the petitioner/accused is reduced to six months. The ﬁne amount already imposed by the Court below stands as it is. The period of detention already undergone during the investigation, trial and after conviction shall be given set oﬀ under Section 428 Cr.P.C. Subject to the above modiﬁcation in sentence, the Criminal Revision Case is partly allowed. --------------------------------------- JUSTICE G. CHANDRAIAH 2ND SEPTEMBER, 2010. Msnr.