IN THE HIGH COURT OF JUDICATURE : ANDHRA PRADESH AT HYDERABAD Date:07-04-2011 PRESENT: THE HONOURABLE SRI JUSTICE B.N. RAO NALLA CRIMINAL REVISION CASE No.744 OF 2005 Between: Fayaz Ali … Revision Petitioner - Accused AND The State of Andhra Pradesh represented by its Public Prosecutor High Court of A.P., Hyderabad, through P.S. Bhainsa (R), Adilabad District … Respondent - Complainant THE HONOURABLE SRI JUSTICE B.N. RAO NALLA CRIMINAL REVISION CASE No. 744 OF 2005 JUDGMENT: The sole appellant - accused in Criminal Appeal No.21 of 2004 on the file of the learned II Additional Sessions Judge, Fast Track Court, Adilabad preferred this Criminal Revision Case aggrieved by the judgment of the aforesaid first appellate Court by its judgment dated 21-04-2005 whereby the appeal of the revision petitioner was dismissed confirming the order and judgment of conviction and sentence of the learned Judicial Magistrate of First Class, Utnoor in C.C. No.124 of 1999 dated 31-03-2004 whereby and whereunder he was convicted for the offences under Sections 337, 338 and 304-A IPC and was sentenced to undergo simple imprisonment for three months for the offence under Section 337 I.P.C., to undergo simple imprisonment for three months and to pay a fine of Rs.1,000/- for the offence under Section 338 IPC and in default of payment of fine to undergo simple imprisonment for one month and he was further sentenced to undergo simple imprisonment for one month and also to pay a fine of Rs.1,000/- for the offence under Section 304-A IPC and in default of payment of fine to undergo simple imprisonment for two months. 2. The facts of the case, in brief, are as under: (a) On 27-11-1996 at about 09:00 p.m., while both the deceased viz. Dr. Jagannath Rao and S. Venkateswar Rao were returning from Basar along with PWs.1 to 4 and others in a jeep bearing Regn. No.AP-1-C-1514, due to rash and negligent driving on the part of the jeep driver – accused (the appellant herein), the jeep dashed against the parked lorry bearing Regn. No.AP-9T-1881 and the same resulted in grievous injuries to the occupants of the jeep. PW-1 with the help of the villagers of Kallur shifted them to Government Civil Hospital, Nirmal. One of the occupants of the jeep Dr. Jagannath Rao succumbed to the injuries on the way to the hospital and an occupant S. Venkateswar Rao (another deceased) was shifted to NIMS, Hyderabad as his condition was serious. (b) PW.1 preferred a complaint on the following day morning i.e. on 28-11-1996 basing on which a case was registered by the Station House Officer, Bhainsa (Rural) Police Station in Crime No.58 of 1996. On submission of death report, the Station House Officer, Punjagutta Police Station registered a case in Crime No. 576 of 1996 under Section 174 Cr.P.C. and the same was transferred to Bhainsa (Rural) Police Station on the point of jurisdiction. (c) On 28-11-1996, the accused, driver of the jeep, was arrested and was sent for judicial custody. After completion of the investigation, the Police laid charge sheet against the accused, under Sections 337, 338 and 304-A of IPC in C.C. No.122 of 1997 before the Court of the learned Judicial Magistrate of First Class, Bhainsa and subsequently it was transferred to the trial Court i.e., the Court of the learned Judicial Magistrate of First Class, Ootnoor and renumbered as C.C. No.124 of 1999. 3. On examination, the accused pleaded not guilty for the offences under Sections 337, 338 and 304-A of IPC and claimed to be tried. 4. In support of its case, the prosecution has got examined PWs.1 to 10 and got marked Exs.P-1 to P-17 on its behalf, whereas no witnesses were examined and no documents were marked on behalf of the accused. 5. On appreciation of oral and documentary evidence placed on record and taking the evidence of prosecution witnesses and other material on record into consideration, the trial Court found the accused guilty of the offences under Sections 337, 338 and 304-A of IPC and accordingly convicted and sentenced him therefor as has already been specified supra. 6. Aggrieved by the impugned order and judgment of the trial Court, accused preferred this criminal revision case, inter alia, on the following grounds: (i) that both the Courts below failed to appreciate the evidence and other material placed on record in proper perspective and came to an erroneous conclusion in finding the accused guilty of the offences charged; (ii) that both the Courts below failed to see that there was no sufficient evidence to prove that the accused was driving the jeep involved in the accident at the time of accident; and (iii) that both the Courts below failed to see that there was no direct nexus between the alleged negligent driving on the part of the accused, jeep driver, and the accident, since the lorry, which was lying on the road after turning turtle in a previous accident, occupied 3/4th of the road and no sign board or lights were placed on the road to show the same and that no rash and negligent driving ought to have been attributed to the driver of the jeep in such circumstances, as it was darkness all along the road in the jungle. 7. The involvement of the jeep bearing Regn. No.AP-1-C-1514 in the accident and the place of accident are not in dispute. PWs.1, 2 and 3, who are legal practitioners by profession, were the injured persons in the said accident. Though PW.1 has stated in his evidence that on the night of the accident he had informed PW-9 Sub-Inspector of Police, Bhainsa (Rural) Police Station about the accident and he has also stated in his cross-examination that though he informed about the accident to the Sub-Inspector of Police, Khanapur, the Police Officers did not take any steps in registering the crime. It is the prosecution case that the crime was registered on the following day at about 09:00 a.m. basing on Ex.P-1 complaint having preferred by PW- 1 . Thus, there is a delay in registering the crime and that it is not known as to why, in spite of receiving oral information from PW.1, the Police Officers did not take any steps in registering the crime during the same night. Moreover, the injured were admitted in the Government Civil Hospital, Nirmal and that the Police Station, Nirmal is situated just opposite to the said hospital and though the Police Officers of the said Police Station are said to have been visited the injured in the hospital, they also did not take any steps in registering the crime in time. PW.7 - the Medical Officer of the Government Civil Hospital, Nirmal has stated in clear terms that he informed Nirmal Town Police Station about the admission and treatment of the injured. The police station is in front of the said Government Civil Hospital at a distance of just 100 yards. The witnesses have further stated that the said police were present at the time of examination. Therefore, it is contended that the Police in due consultation with PWs.1, 2 and 3 has falsely implicated the accused since it was the deceased, Jagannath Rao, who was, in fact, driving the jeep at the time of the accident and had no driving licence to drive the same and keeping in view that compensation-claim would be defeated, the police falsely implicated him as an accused in this case. 8. Though the oral information was given to the Police Officers of Nirmal, Khanapur and Bhainsa (Rural) Police Station much prior to lodging of Ex.P-1 complaint, the police did not register any F.I.R. It is only at the behest of PWs.1, 2 and 3, the police have registered a false case against the accused by suppressing such prior information to suit its case. Therefore, it is contended that suppression of oral information (FIR) and the delay in preferring Ex.P-1 complaint basing on which the crime was registered must create a cloud of doubt about the case of prosecution. 9. It is to be found in the evidence of PW.1 that he acted as one of the mediators to Ex.P-3, scene of offence panchanama, and during the course of recording the said panchanama, he found the lorry that was damaged and turned turtle on the rod and also a jeep that had hit the lorry and that the driver of such lorry was present there and stated to him that he was present there in the night when the accident occurred. That being so, it is contended on behalf of the accused that it is not known as to why and for what purpose the lorry driver was not examined as an eyewitness to the accident. Therefore, non- examination of the driver of that lorry as an eyewitness to the accident also creates a doubt about the case of the prosecution. Further, it is in the evidence of PW.1 that on hearing hue and cry, some villagers came from Kalluru in a jeep and the driver of that jeep with the help of other villagers, removed the injured to Government Hospital, Nirmal. However, neither the driver of that jeep nor any of the Kallur villagers was examined as a prosecution witness and further LW.19, the Motor Vehicle Inspector, who had inspected the accident jeep, was also not examined and his report was not marked though he has mentioned in his report that the accident was not due to any mechanical defect in the jeep. 10. From the above circumstances, it appears that obviously there are errors apparent on the face of the record which are bound to cause a cloud of doubt about the case of the prosecution, as such, both the Courts below have erred in not considering the same and in not extending at least benefit of doubt to the accused, as such, the findings of the Court below may be held to be perverse and erroneous and as such the impugned judgment and conviction and sentence of the accused are liable to be set aside. 11. The learned Public Prosecutor submits that both the Courts below after taking the evidence of the prosecution witnesses into consideration and also considering the other material on record have come to a concurrent conclusion that the accused was guilty of the offences charged with, as such, the same is not liable to be interfered with and that the revision is devoid of merits and is liable to be dismissed. 12. In support of his contentions, learned counsel for the accused relied on the decisions of the Hon’ble Apex Court in STATE OF PUNJAB v. DALJIT SINGH AND ANOTHER[1], SEVI AND OTHERS v. STATE OF T.N. & ANOTHER[2], Pt. PARMANAND KATARA v. UNION OF INDIA AND OTHERS [3], DHANPAL SINGH v. STATE[4], JAGDISH CHANDER v. STATE OF DELHI[5], a decision of this Court in KUTCHARLAPATI KRISHNAM RAJU v. STATE OF AP[6], a decision of the New Delhi High Court in NEW INDIA ASSURANCE CO. LTD. v. MAYA WATI AND OTHERS[7] and a decision of the Himachal Pradesh High Court in STATE OF H.P. V. VARINDER SINGH[8]. 13. Per contra, learned Public Prosecutor relied on a decision of the Hon’ble Apex Court in STATE OF U.P. v. KRISHNA MASTER & OTHERS[9] and a decision of this Court in PUBLIC PROSECUTOR, HIGH COURT OF A.P., HYDERABAD v. KIMIDI VEERA VENKATA SATYANARAYANA MURTHY AND OTHERS[10] 14. During the course of arguments, it transpired that there is change of circumstances that the accused is retired from service as driver of the A.P.S.R.T.C. Further he is suffering from old age ailments, having financial constraints and he has to support his family. 15. In the facts and circumstances of the case as has already been stated hereinabove and also having regard to the changed circumstances, this Court is of the view that taking a lenient view, the sentence of the accused can be modified while maintaining the conviction and accordingly it is considered to reduce the sentence of the accused to the period that he has already undergone and the same is accordingly reduced while confirming the conviction. 16. In the result, the Criminal Revision Case is dismissed modifying the sentence of the accused as stated supra while confirming his conviction recorded by the Courts below. __________________ B.N. RAO NALLA, J Date:07-04-2011. ISL/PV [1] 2004 SCC (Cri) 1776 [2] AIR 1981 SC 1230 [3] AIR 1989 SC 2039 [4] 2004 Crl.L.J. 2724 [5] 1973 Crl.L.J. (V.79 C.420) [6] 2003(2) ALD (Crl.) 241 (AP) [7] 1992 ACJ 620 [8] 2002 Cri.L.J. 735 [9] 2010 Cri.L.J. 3889 [10] 2011(1) ALD (Crl.) 55 (AP)