* THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR + CRL. R.C. NO. 26 OF 2005 % 11-09-2009 # Gandipally Srinivas. ..… Petitioner Vs. $ The State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad. …Respondent !Counsel for the Petitioner : Sri D. Bhasker Reddy ^Counsel for the Respondent : Public Prosecutor <Gist : >Head Note: ?Cases Referred: 1. 2009(2) ALT (Crl.) 128(AP) THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Revision Case No. 26 of 2005 Date: 11.09.2009 Between: Gandipally Srinivas. .. Petitioner And State of A.P., rep. By its Public Prosecutor, High Court of A.p., Hyderabad. .. Respondent THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Revision Case No. 26 of 2005 JUDGMENT: This revision case is filed challenging the judgment dated 22.12.2004 passed in Criminal Appeal No. 60 of 2002 by the learned Sessions Judge, Karimnagar, confirming the judgment dated 01.04.2002 passed by the learned Additional Judicial Magistrate of First Class, Karimnagar, in C.C. No.1115 of 1999, whereby and whereunder the revision petitioner/accused was convicted for the offence punishable under Section 304-A IPC and sentenced to undergo R.I for a period of two years and to pay a fine of Rs.2000/-, in default to undergo S.I for two months. In the appeal, though conviction was confirmed, however the sentence of two years rigorous imprisonment was reduced to one year but imposition of fine amount of Rs.2000/- was confirmed. The petitioner will be referred as accused hereinafter. The brief facts of the case are as follows. The deceased Thota Thirupathi, aged about 18 years, was a resident of Maruthinagar, Karimnagar. A Ganesh idol was installed near Hanuman Temple, Maruthinagar, Karimnagar. On 21.09.1999, the deceased and his elder brother Thota Laxman (PW.1) went to Hanuman Temple to perform pooja to Ganesh idol and they were standing in front of the temple. In the meanwhile, the lorry bearing No. ABT-338, being driven by the accused from Kaman side towards Karkhanagadda side in a rash and negligent manner at high speed, came to the extreme left side of the road and dashed against the deceased. The deceased jumped and fell down and the front tyre of the lorry ran over the abdomen of the deceased and also dragged him to a distance of 5 meters, due to which the intestines of the deceased came out and his private parts were also crushed. The persons gathered there witnessed the incident. According to PW.1, the lorry left the black top road and dashed the deceased. The deceased was shifted to Government Hospital, Karimnagar. However, the deceased succumbed to injuries. PW.1 proceeded to the police station and lodged Ex.P1 report. PW.2 Thota Srinivas is another brother of the deceased. He has not witnessed the accident. PWs.3 to 5 are the eye-witnesses to the incident. PW.6 is the mediator at the time of observation of scene of offence by the police. Ex.P2 is the observation of scene of offence panchanama. PW.7 is one of the mediators at the time of inquest held over the dead body of the deceased. PW.8 is another mediator at the time of observation of scene of offence. PW.9 is the Doctor who conducted post-mortem examination over the dead body of the deceased and opined that the deceased died due to haemorrhage and shock due to multiple injuries. Ex.P4 is the post-mortem report issued by PW.9. PW.10 is the Motor Vehicle Inspector who inspected the vehicle and submitted his report opining that the accident is not due to any mechanical defect of the vehicle. Ex.P5 is the report given by PW.10. PW.11 is the Doctor who examined the deceased and declared the death of the deceased. The Investigating Officer could not be examined in this case. The trial Court believed the evidence of PWs.1 and 3 to 5 the eye witnesses and held that the accident occurred due to rash and negligent driving of the accused. The trial Court also observed that since the Investigating Officer had been to USA on extraordinary leave for four years, he could not be examined. The police filed Xerox copy of orders of the Additional Superintendent of Police, Karimnagar, showing that the Investigating Officer went to USA on extraordinary leave. The learned Magistrate found the accused guilty and convicted and sentenced as referred above. Sri D. Bhasker Reddy, learned counsel for the revision petitioner/accused, argued that since the Investigating Officer was not examined in this case prejudice would be caused to the accused. It is also his submission that the rough sketch filed by the police would show that there is no Pendal in front of Hanuman Temple, but, the evidence of eye witnesses shows the existence of Pendal, and thus the evidence of witnesses is contrary to prosecution case. It is also argued that since the accused was stranger to the witnesses and he was arrested on 25.09.1999, there was no opportunity for the witnesses to see the accused and their evidence before the Court, that they identified the accused for the first time cannot be accepted. The learned Public Prosecutor supported the judgments of the Courts below and submitted that there are no reasons to interfere with the same. The point that arises for consideration is whether the conviction and sentence passed against the accused are sustainable. The case of the prosecution is that when the deceased and PW.1 were standing in front of Hanuman Temple to perform pooja to the deity, the accused, while driving the lorry bearing No.ABT-338 from Kaman side and proceeding towards Karkhanagadda side, had driven the said lorry in a rash and negligent manner at high speed and came towards extreme left side of the road and dashed against the deceased. The evidence of PWs.9 and 11 establishes that the deceased died due to shock and haemorrhage as a result of multiple injuries on 22.09.1999. Therefore, there cannot be any doubt to say that the deceased died in a motor accident. The evidence of PW.10 the Motor Vehicle Inspector proves that he had examined the lorry and that there was no mechanical defect in the said lorry and that the brakes of the said lorry were intact. Ex.P5 is the report of PW.10. Now it has to be seen whether the accident occurred due to rash and negligent driving of the lorry by the accused. PW.1 has categorically deposed that the lorry left the black top road and came to the extreme left side at high speed and dashed the deceased. The evidence of PWs.3 to 5 corroborated the evidence of PW1 on this aspect. All these witnesses have categorically deposed that the lorry came at high speed and dashed against the deceased. It has also come in the evidence that the road is wide enough at the place of accident and two vehicles can pass through the road at a time. The witnesses denied the suggestion that the deceased was dancing in front of Ganesh idol and that he was in a drunken state and he himself came underneath the lorry. They also denied the suggestion that the accused had driven the lorry slowly at the scene of offence due to the speed breakers. The evidence of PW.3 shows that there are speed breakers near the scene of offence. Learned counsel for the accused argued that the rough sketch does not show the existence of Pendal in front of Hanuman Temple, whereas the witnesses have spoken about the Pendal. The rough sketch is not marked in the evidence. It appears that there is no mention about the Pendal in the observation mahazar prepared at the scene of offence in Ex.P2. PWs.6 and 8 are the mediators present at the time of observation of scene of offence and preparation of Ex.P2. According to PW.6, the polls of the Pendal were not fallen. According to PW.8, he found the lorry in front of Vinayaka idol under the Pendal. The evidence of PWs.6 and 8 shows that a Pendal was erected in front of Hanuman Temple. PWs.6 and 8 were not cross-examined about the non-mentioning of Pendal in Ex.P2. Therefore, much importance need not be given to this aspect. Coming to the next submission of the learned counsel for the accused that non-examination of the Investigating Officer is fatal to the case of the prosecution, it has to be seen that the learned Magistrate had assigned valid reasons for non-examination of the Investigating Officer. In a criminal case, the evidence of the Investigating Officer has its own importance, but non-examination of the Investigating Officer is not fatal in all the cases. It all depends on facts and circumstances of the case. If there are any omissions and contradictions in the evidence of prosecution witnesses, then for marking such contradictions or omissions, the examination of the Investigating Officer becomes necessary. As seen from the cross-examination of the witnesses examined in this case, no contradictions and omissions have been brought on record in their evidence. That means no suggestion was given to these witnesses that they are giving different version or contradictory version to the version already given by them before the police under Section 161(3) Cr.P.C.. Similarly, no suggestion was given to the witnesses that they did not state certain facts to the police as stated by them before the Court. In view of the same, I am of the view that non-examination of the Investigating Officer is not fatal to the case of the prosecution. Coming to the question of identification of the accused, learned counsel for the accused has relied on a judgment of this Court reported in Piginaraji Ranga Rao v. State of A.P[1]. The facts of that case are different from the facts of the case on hand. In that case, after the accident, the lorry was stopped at a distance of 22 to 25 feet from the place of accident and the accused after stopping the lorry ran away from the place of accident. In that case, it was specifically observed that wherein the given case the witnesses had considerable time and opportunity to observe the offender, the situation would be different. Therefore, the important factor would be whether the witnesses had an opportunity to see the accused at the time of accident. In the instant case, according to the prosecution witnesses, the incident occurred at about 5.15 PM. The lorry came at high speed and dashed against the deceased in front of Hanuman Temple and it was stopped there. All the witnesses were present near Hanuman temple. Of course, all the witnesses admitted that the accused got down from the lorry and ran away. Even then, since the witnesses were present at the scene of offence and there was sufficient light at the scene of offence and the lorry was stopped at the place where they were standing, therefore it appears that the witnesses had ample opportunity to observe the accused and therefore their version that it is the accused who had driven the lorry at the time of accident cannot be discarded. The evidence of the prosecution witnesses clinchingly establishes that the lorry came at high speed in a rash and negligent manner and dashed against the deceased while he was standing in front of Hanuman Temple. It has to be seen that the road at the place of accident is wide enough and a Hanuman temple is situated there and Ganesh idol was installed in front of Hanuman Temple and several persons gathered there. There were speed breakers near the place of accident. This sows that the accident occurred at a place where there was gathering of public. In such a situation, when the accused was driving the lorry and coming near Hanuman Temple he ought to have reduced the speed of the vehicle on observing the persons in front of the temple. It is common knowledge that people will be walking along the road, and children and women may be crossing the road and some times cattle may be crossing the road. Since there will be movement of persons and cattle in the villages and towns, the drivers while entering into towns or villages must reduce the speed of their vehicles and keep the vehicles under their control. In the present case, the accident had occurred at Hanuman temple, where there was gathering of public. It is clear from the evidence that in spite of seeing the public, the accused did not reduce the speed of the lorry. More over, the lorry left the black top road and came towards extreme left side of the road at high speed and dashed against the deceased. These circumstances establish that the accused had driven the lorry in a rash and negligent manner at high speed. Therefore, there is no miscarriage of justice or irregularity in the appreciation of evidence by the Courts below. In the circumstances, the conviction of the accused for the offence punishable under Section 304-A IPC is confirmed. However, having regard to the fact that the offence took place in September 1999 and as seen from record the accused stated before the learned Magistrate that he is the sole earning member of his family, I consider it just and reasonable to further reduce the sentence of one year rigorous imprisonment to six (6) months rigorous imprisonment. Since the accused had already paid the fine amount, he shall serve the remaining period of six months sentence. The period of remand already undergone by him shall be given set off. Accordingly, the revision case is partly allowed. ____________________ B. CHANDRA KUMAR, J. Dt.11.09.2009 Nsr [1] 2009(2) ALT (Crl.) 128 (A.P)