IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE SEVENTEENTH DAY OF NOVEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Revision Case No.1504 of 2004 Between: Masabathula Bhaskara Ananda Kumar .. Petitioner AND The State represented by Public Prosecutor, High Court of A.P., Hyderabad .. Respondent JUDGMENT: The Criminal Revision Case is directed against the conﬁrmation of the conviction of the accused by the judgment in C.C.No.188 of 2001 on the ﬁle of Additional Judicial First Class Magistrate, Razole, dated 10-12- 2002, in Criminal Appeal No.3 of 2003 on the ﬁle of VIII Additional Sessions Judge (Fast Track Court), East Godavari District, Amalapuram, on 26-08-2004, by which the Appellate Court modified the sentence. The factual background is that the Sub-Inspector of Police, Sakhinetipalli police station ﬁled the charge sheet in Crime No.94 of 2001 alleging that the accused driving an APSRTC bus on 25-08-2001 dashed against Yamaha motorcycle of Akula Durga Satyanarayana Murthy from behind, due to which he fell down from the motorcycle, sustained head injury and died on the spot. The motorcycle was crushed under the wheels of the bus. On the report of Village Administrative Oﬃcer, Antervedipalem, the police registered the crime and investigated into the same. The accused was stated to have surrendered before the police and hence, the charge for the oﬀence under Section 304 A of the Indian Penal Code. After the oﬀence was taken cognizance, the accused appeared before the trial Court and was supplied the copies of documents. He denied the oﬀence when he was examined under Section 251 of the Code of Criminal Procedure and during trial, PWs.1 to 10 were examined and Exs.P.1 to P.14 and D.1 were marked, apart from M.Os.1 and 2. The accused denied the incriminating circumstances appearing in the evidence against him when he was examined under Section 313 of the Code of Criminal Procedure and he claimed that he is driving the bus very slowly when the deceased himself came from a side lane in high speed and dashed against the bus. The trial Court rendered its judgment referring extensively to the evidence of the witnesses and considered all the three direct witnesses to have probablised that when Akula Durga Satyanarayana Murthy was coming on his motorcycle and was taking a turn, the bus driven by the accused came in high speed without blowing horn and dashed against the motorcycle from behind resulting in the deceased being thrown to a distance of about 6 feet in front of the motorcycle. The direct witnesses identiﬁed the accused as the driver of the oﬀending bus and the trial Court also found corroboration to the claims of the witnesses from the material collected during investigation and the evidence of the medical oﬃcer. Hence, it was considered to be proved that Akula Durga Satyanarayana Murthy died in an accident on being dashed against by APSRTC bus driven by the accused. The features of the scene of oﬀence were also analyzed by the trial Court to reject the defence version though it was accepted that there can be no presumption of negligence from the mere fact that a man is knocked down and killed by a motorist. The defence of contributory negligence was also recognized, but the evidence of the direct witnesses coupled with the absence of any mechanical defect in the vehicle as per the Motor Vehicle Inspector’s report and the features of the damage caused to the bus were considered to exclude the possibility of existence of any such contributory negligence. The vehicle of the deceased coming in high speed was considered to be an improbability based on the physical features of the locality and the rashness and negligence in driving by the accused having been considered to have been proved beyond reasonable doubt, the accused was handed over to a sentence of Rigorous imprisonment for a period of six months on being found guilty of an oﬀence punishable under Section 304 A of the Indian Penal Code. In appeal, the Appellate Court again analyzed all the facts and evidence and found that the basic version of the three eye-witnesses was not shaken in any manner during their examination and the very statement by the accused during his examination under Section 313 of the Code of Criminal Procedure was relied on to show that the accused was the driver of the oﬀending vehicle. The version of the defence that the deceased himself dashed against the bus was considered unbelievable, more so, when there was no damage on the right side of the bus and in view of the extensive damage caused to the motorcycle. The photographs taken by PW.8 were also referred to as probablising the improbability of the defence version. When the motorcycle was badly damaged and crushed and the deceased driving the same died on the spot, the Appellate Court refused to accept any minor contradictions to be vitiating the acceptability of the prosecution story and had, therefore, decided to conﬁrm the conviction. However, the Appellate Court took into account the representation of the accused that he was the only bread winner of his family and hence, considered it proper to reduce the sentence. Accordingly, the sentence was modiﬁed to Rigorous Imprisonment for three months and a ﬁne of Rs.3,000/- with a default sentence of three months. In this Criminal Revision Case, the accused pleaded that the evidence of PWs.1 to 3, which is unnatural, could not have been relied on and the accident took place in such circumstances, for which the accused could not have been found fault with. The accused, therefore, desired that he be acquitted of the charge. Sri P. Venkat Rao, learned counsel, representing Sri V. Raja Manohar, learned counsel for the revision petitioner and Sri Rudresh Deshpande, learned counsel, representing the learned Public Prosecutor/respondent are heard. The point for consideration is whether the conviction of the revision petitioner conﬁrmed by the Appellate Court needs to be interfered with in revision and if not, whether any modiﬁcation of the sentence imposed on him can be considered? Insofar as the ﬁndings of the trial Court and the Appellate Court are concerned, a close perusal and consideration does not reveal any factual or legal inﬁrmity in the acceptance of the evidence produced by the prosecution. The fact that Akula Durga Satyanarayana Murthy met with an unnatural death due to the injuries found on his person as stated in Ex.P.4- Post Mortem certiﬁcate has been proved by the evidence of the medical oﬃcer-PW.7. The unnatural death being the result of the accident involving the motorcycle of the deceased and the bus driven by the accused has been probablised by Ex.P.3-inquest report before the independent mediators. That the accident was not due to any mechanical defect in the vehicle driven by the accused was established by Ex.P.11- certiﬁcate issued by PW.9-the Motor Vehicle Inspector. Even the accused did not deny either the happening of the accident or the death of Akula Durga Satyanarayana Murthy in the accident when he positively claimed during the examination under Section 313 of the Code of Criminal Procedure that he was going very slowly, while the deceased driving his two wheeler rashly came and dashed against the bus. Thus, the accident and the death of the rider of the motorcycle in the accident are admitted and not disputed. The only question that remains is the manner in which either the bus or the motorcycle were driven and whether any culpable rashness or negligence was involved in driving the bus. The evidence of the eye- witnesses-PWs.2, 4 and 6 could not have been discredited by the trial Court and the First Appellate Court. Firstly, there is absolutely no positive intention or motive to falsely implicate the accused in any criminal case and secondly, their presence around the scene of the accident at about the relevant time has not been improbablised by any circumstance on record. PW.2 was coming on cycle at that time in pursuance of his carrying two bags of cashew nuts to his destination. PW.4 was also simultaneously proceeding on his cycle at that relevant time. Even assuming that PWs.2 and 4 are witnesses by chance, PW.6, who is running a pan shop on the north-east corner of four road junction at which the accident occurred, cannot be considered to be a witness by chance and he is a natural witness for the accident. The photographs of the scene of oﬀence, which were closely analyzed by the courts below and the physical features as disclosed by Ex.P.14-rough sketch of the scene of oﬀence, will not make it possible that the motorcycle has been driven rashly and negligently, but not the bus. As rightly observed by the Courts below, the very damage that occurred to the motorcycle, the very injuries that were sustained by the deceased and the absence of such extensive damage to the bus, which can corroborate the claims of the prosecution themselves indicate the acceptability of the version of the direct witnesses and under such circumstances, the reasoned judgments of the trial Court and the Appellate Court cannot be interfered with in exercise of restricted revisional jurisdiction of this Court. However, Sri P. Venkat Rao, learned counsel for the revision petitioner, submitted that the accused aged about 41 years by the time of accident was the sole bread winner for his entire family consisting of his parents, wife, son and daughter. The learned counsel also submitted that none of the other members of the family have any occupation or avocation and in the absence of any earnings for any other member conﬁning the accused in prison will deprive them of the only source of livelihood. The accused was stated before the trial Court to be a casual driver in APSRTC and though considering the nature of the oﬀence, any extension of the beneﬁts under the Probation of Oﬀenders Act may not be called for, the fact that he was facing the ordeal of the criminal prosecution since his surrender before the police immediately after the accident till now also may have to be considered as an extenuating circumstance. The stress and strain of having to face the criminal proceedings from 2001 up-to-date from more than a decade can also be taken into account in considering the punishment proportionate to the guilt of the accused. While it could not be forgotten that a valuable human life is lost due to the rash and negligent driving of the accused, taking into account the various circumstances, the period of imprisonment imposed by the Appellate Judgment can be further considered to be reduced, while the amount of ﬁne imposed by the Appellate Judgment was stated to have been paid. Taking an over all view of the facts and circumstances, it will sub-serve the ends of justice, if the period of imprisonment is reduced to one month. Therefore, while the Criminal Appeal is dismissed, the sentence imposed by the VIII Additional Sessions Judge (Fast Track Court), East Godavari District at Amalapuram in Criminal Appeal No.3 of 2003 by the judgment dated 26-08-2004 on the accused to undergo Rigorous Imprisonment for three months shall stand modiﬁed to Rigorous Imprisonment for one month, while the sentence of ﬁne imposed by the said judgment is maintained. The period of remand, if any, undergone by the accused since his surrender before the police after the incident up to date shall be given set oﬀ from the sentence of imprisonment under Section 428 of the Code of Criminal Procedure. The Criminal Revision Case is ordered accordingly. _____________________ G. BHAVANI PRASAD, J Date: 17-11-2011 Ksn