IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE FIRST DAY OF JULY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.1221 OF 2004 Between: Dasari Malyadri ..... PETITIONER AND State of Andhra Pradesh, represented by Public Prosecutor ....RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.1221 OF 2004 ORDER: This Criminal Revision Case, under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C”) is directed against the Judgment, dated 16.07.2004, in Crl.A.No.166 of 2003 on the file of the IV Additional Sessions Judge (Fast Tract Court), Ongole, whereunder and whereby, the conviction of the petitioner/accused of the offence punishable under Section 304A of the Indian Penal Code, 1860 (for short, “I.P.C.”) and sentence to undergo simple imprisonment for a period of one year and to pay a fine of Rs.2,000/-, in default to undergo simple imprisonment for a further period of six months, recorded in the judgment, dated 21.11.2003, in C.C.No.339 of 2003 on the file of II Additional Judicial Magistrate of First Class, Ongole, were confirmed. 2. The brief facts, that are necessary for disposal of the present Criminal Revision Case, may be stated as follows: On 15.05.2003 at about 11:00 AM while the deceased girl Haritha, who was aged about six years, was taking ice cream standing by the side of the road, along with her grandfather – PW.1, the accused, who was the driver of the tractor bearing No. AP-20-U-531 with a trailor bearing No.AP-20-U-532, coming from Yerajerla, Ongole, drove the vehicle rashly and negligently and hit the girl, as a result of which the deceased fell under the wheels, sustained injuries and died. Thereafter, P.W.1 lodged a complaint with police. Basing on the same, police registered a case, observed the scene of occurrence and conducted inquest on the dead body of the deceased. Thereafter, the dead body of the deceased was subjected to post-mortem examination. On a requisition given by the police, the Motor Vehicle Inspector inspected the crime vehicle and opined that the accident was not due to any mechanical defects of the vehicle. After the completion of investigation, police filed the charge sheet. 3. When the accused was examined under Section 251 Cr.P.C. of the offence under Section 304A I.P.C., he denied the offence, pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 to 7 and got marked Exs.P-1 to P-6. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances found against him in the evidence of prosecution witnesses. He denied the same and reported no evidence. 6. The trial Court, upon considering the evidence on record, found the accused guilty of the offence under Section 304A I.P.C. and accordingly, convicted and sentenced him as stated above. Aggrieved by the same, the accused preferred an appeal before the appellate Court, which confirmed the judgment of the trial Court. Challenging the same, the present revision is filed by the accused. 7. Now the point for determination is whether the prosecution had proved the guilt of the accused for the offence punishable under Section 304A I.P.C., beyond all reasonable doubt and whether the judgments of both the Courts below are correct, legal and proper? 8. Learned counsel appearing for the petitioner contended that though the independent witnesses are available, police have not examined the independent witnesses to speak about the accident; that P.Ws.1 to 3 are closely related to the deceased and so they are interested witnesses; and that the police have not filed any record to show that the petitioner was driving the offending vehicle at the relevant point of time of accident; and hence, he prays to set aside the impugned judgments. 9. On the other hand, learned counsel representing the learned Public Prosecutor opposed the same on the ground that the concurrent findings of the two Courts below need not be interfered with; that the evidence of PWs.1 to 3 is very clear that the deceased, who was aged about six years, while she was purchasing ice cream along with PW.1 standing on the road margin, the accident took place due to the negligence of the driver of the vehicle; that the identity of accused as driver of the tractor is established and therefore, there are no grounds to interfere with the impugned judgments and hence, she prays to dismiss the Criminal Revision Case. 10. There cannot be any dispute that the revisional powers of this Court under Sections 397 and 401 Cr.P.C. are truncated. Unless the findings of the Courts below are shown to be perverse, or contrary to law, or illegal or improper, ordinarily this Court will not interfere with the concurrent findings of the Courts below. A finding can be said to be perverse, if it is not based upon proper appreciation of the evidence on record. 11. For the charge under Section 304A I.P.C., the prosecution has to prove the rashness or negligence on the part of the driver of the vehicle. Rashness does not consist only of high speed but also consists in not keeping in mind the rules of safety and prudence. Negligence, on the other hand, is a gross culpable neglect or failure to exercise such reasonable care and caution, which has to be taken in the circumstances of the case. 12. The accident took place at about 11:00 AM in the busy center of the village. The deceased was standing by the side of the road taking ice cream. She was aged about six years. The death of the deceased in a vehicular accident is not in dispute. The accident was not due to any mechanical defects of the vehicle, as seen from the evidence of PW.6 – Motor Vehicle Inspector and the recitals in Ex.P.4 – Motor Vehicle Inspector Report. In view of the fact that when the driver was driving the vehicle in busy locality, he has to take all reasonable care and caution especially when there are pedestrians standing on the side of the road. The deceased was aged about six years, she may not be knowing what is right and what is wrong. Therefore, in such circumstances, the driver has to take proper care in stopping the vehicle immediately, after seeing the deceased girl. That precaution has not been taken. Had he taken such precaution, the present accident would not have been averted. From the evidence of P.Ws.1 to 3, it is clear that it is the petitioner who was driving the vehicle at the time of accident. No doubt, the tractor may not go very speedily, but at the same time, speed is not the criteria for determining the rash or negligent act. 13. With regard to the non-examination of independent witnesses the presence of PWs.1 to 3 cannot be doubted. Furthermore, PW.1 set the criminal law into motion by lodging a complaint. Prosecution is not obliged to examine witness after witness to prove the rashness or negligence on the part of the driver. It is not the quantity that matters but it is the quality, which is relevant for the purpose of deciding the issue. Therefore, the trial Court as well as the appellate Court rightly placed implicit reliance on the evidence of PWs.1 to 3, who are present at the time of accident. On the ground of interestedness, their evidence cannot be disbelieved. Therefore, the trial court rightly placed reliance on the evidence of PWs.1 to 3. Hence, there are no grounds to interfere with the conviction recorded by the trial Court as confirmed by the appellate Court. 14. With regard to the sentence, the accused is aged about 25 years as on the date of incident. The accident took place more than seven years back. Therefore, a lenient view can be taken with regard to sentence of imprisonment. 13. In the result, Criminal Revision Case is dismissed confirming the conviction of the petitioner of the offence punishable under Section 304A I.P.C. recorded by the II Additional Judicial Magistrate of First Class, Ongole, dated 21.11.2003, in C.C.No.339 of 2003, and as confirmed by the IV Additional Sessions Judge (Fast Tract Court), Ongole, vide judgment, dated 16.07.2004, in Crl.A.No.166 of 2003. The sentence of imprisonment is modified from one year simple imprisonment to six (6) months simple imprisonment, while maintaining the fine amount with default sentence. Period of detention, if any, underwent 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 01, 2010 MD