Kudipudi v. The State of Andhra Pradesh

circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the Judgments passed in C.C.No.161 of 2003 on the file of the Judicial First Class Magistrate, Mummidivaram, East Godavari District, which was modified in Crl.A.No.251 of 2007 on the file of the II Additional Sessions Judge, E.G.Dist., at Annalapuram, and to release the petitioner on bail, pending disposal of the CrI.R.C. Counsel for the Petitioner : Sri Polisetty Radha Krishna Counsel for the Respondent : Assistant Public Prosecutor The Court made the following: HIGH COURT OF ANDHRA PRADESH AT AMARAVATI **** CRIMINAL REVISION CASE No.429 OF 2009 Between Kudipudi Srinadh The State Of A P ...PETITIONER ...RESPONDENT Versus **** DATE OF ORDER PRONOUNCED

18.02.2025 II is- i! 2 ' f Dr.YLR,J Crl.R.C.No.429 of 2009 Dated 18.02.2025 SUBMITTED FOR APPROVAL: THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO

1. Whether Reporters of Local Newspapers may be allowed to see the Judgment? Yes/No

2. Whether the copy of Judgment may be marked to Law Reporters/Journals?

3. Whether His Lordship wish to see the fair copy of the Judgment? y Yes/No y Yes/No \ 3 Dr.YLR,J Crl.R.C.No.429 of 2009 Dated 18.02.2025 * THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO + CRIMINAL REVISION CASE No.429 OF 2009 % 18.02.2025 # Between: Kudipudi Srinadh Versus The State Of A P ...PETITIONER ...RESPONDENT ! Counsel for the Petitioners : Sri Polisetty Radha Krishna Counsel for the Respondent : Sri K.Sandeep, Assistant Public Prosecutor < Gist: > Head Note: 4 Dr.YLR,J Crl.R.C.No.429 of2009 Dated 18.02.2025 ? Cases referred; 1) (1993) 4 see 10 2) (1973) 2 see 583 3) (2000) 10 see 338 4) (2002) 6 see 650 5) 2013 (1) ReR (eriminal) 826 6) (2015) 5 see 182 7) AIR 1979 Se 663 8) AIR 1975 se 1960 9) 1979 AIR 1360 10) (1999) 7 see 604 5 Dr.YLRJ Crl.R.C.No.429 of 2009 Dated 18.02.2025 THE HON’BLE SRI DR JUSTICE Y. LAKSHMANA RAO CRIMINAL REVISION CASE.No.429 OF 2009 ORDER: The revision was preferred under Sections 397 read with 401 of the Code of Criminal Procedure 1973 (for brevity ‘the Cr.P.C.’) against the Judgment in CrI.A.No. 251 of 2007 on the file of II Additional Sessions Judge, East Godavari, Amalapuram, whereby and where-under the revisionist was convicted and sentenced to undergo rigorous imprisonment for a period of six (6) months while allowing the appeal in-part. The learned Judicial Magistrate of First Class, Mummidivaram (FAC), Additional Judicial Magistrate of First Class; Amalapuram, after trial, convicted and sentenced the revisionist for the offence punishable under Section 304-A of the Indian Penal Code, 1860 (for short ‘the I.P.C.,’) to suffer simple imprisonment for a period of one year and to pay fine of Rs. 1,000/-; for the offence punishable under Section 338 of ‘the I.P.C.,’ a fine of Rs.1,000/-; and for the offence under Section 337 of ‘the I.P.C.,’ a fine of Rs.400 /- was imposed.

2. Heard the learned counsel for the revisionist and the learned Assistant Public Prosecutor.

3. Mr Polisetty Radha Krishna, learned counsel for the revisionist had reiterated the grounds of appeal and submitted that even though there was no witness, who saw the occurrence of the offence that the revisionist drove the vehicle in a rash and negligent manner, the learned Trial Court and Appellate 6 Dr.YLR,J Crl.R.C.No.429 of2009 Dated 18.02.2025 Court erred in coming to wrong conclusions and convicted the revisionist. He further submitted the Revisionist is working as a clerk in an eye hospital, passed intermediate, and got married and blessed with two children. alternatively, the learned counsel for the revisionist pleaded that the revisionist may be sentenced to undergo the imprisonment which the revisionist had already endured.

4. Sri K.Sandeep, learned Assistant Public Prosecutor submitted that P.W- 1 and P.W-2 categorically deposed that the driver drove the vehicle rash and negligently, but they did not identify who drove the vehicle at the time of accident. However, P.W-6 the Doctor testified that revisionist drove the vehicle and that the testimony is sufficient to hold that the revisionist was the driver at the time of the accident and on a combined reading of the evidence of P.W-1, P.W-2, P.W-6 and P.W-9, it can be safely relied on the version of the prosecution that the revisionist was the driver and he drove the vehicle in rash and negligent manner. The learned Courts below had not erred either in law or facts, in finding the revisionist guilty, ergo, it is urged to dismiss the revision.

5. Thoughtful consideration is bestowed on the arguments advanced by both the Counsel. I have perused the record.

6. Now the point for consideration is: the judgment passed by “Whether 20.08.2007, Class Magistrate, Mummidivaram, East Godavari District, is correct, legal, and proper with respect to judgment, and there are any material irregularities? And to what relief?" C.C..N0.I6I learned Judicial 2003 First sentence, finding, 7 Dr.YLR,J Crl.R.C.No.429 of 2009 Dated 18.02.2025

7. It is well settled by the Apex Court in Amarchand Agarwalla v. Santi Bose^ that normally the revisional jurisdiction of the Court has to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice.

8. Similarly, the Supreme Court in Kalu Ahir v. Ramdeo Ram^, held that inspite of wide language of Section 435 of the Code of Criminal Procedure, 1898 (Section 397 of the Code of Criminal Procedure, 1973) which empowered the High Court to satisfy itself as to the correctness, legality or propriety of any findings, sentence or order recorded or passed by any inferior Court within my jurisdiction and as to the regularity of proceedings of such inferior Court and inspite of the fact that under this provision of law this Court can exercise interalia the power conferred on a Court of appeal, this Court is not supposed to exercise revisional jurisdiction as if it is hearing an appeal. The power being discretionary, it has to be exercised judiciously and not arbitrarily or lightly. Judicial discretion, as has often been said, means a discretion which informed by tradition, methodized by analogy and disciplined by system.

9. To prove the guilty of the accused, prosecution examined P.W-1 to P.W-13 and got marked P.1 to P.16 and M.O Nos 1 and 2. For the defence side, Ex.DI was marked which is the portion of 161 of ‘the Cr.P.C.,’ statement

1. (1993) 4 see 10 2. (1973) 2 see 583 8 Dr.YLR,J Crl.R.C.No.429 of 2009 Dated 18.02.2025 of P.W-13. P.W-1 and P.W-2 in categorical terms, had testified that the driver of the vehicle drove the vehicle in rash and negligent matter, even though they advised or informed the driver to go slowly. However, they did not identify the driver of the vehicle. P.W-6 Dr.G.Madhu testified that he had examined the revisionist as he suffered some injuries in the accident and noted that the revisionist vehicle suffered injuries. P.W-9 Guthula Satyanarayana, the Head Constable deposed that he went to the revisionist and recorded his statement and obtained his signatures on the statement. In the statement, it is clear that revisionist was the driver at the time of the accident. On combined reading of the evidence of P.W-1, P.W-2, P.W-6 and P.W-9, it can be safely concluded that the revisionist was the driver of the vehicle and he drove the vehicle in rash and negligent manner even against the advice of P.W-1 and P.W-2 and caused death of the deceased.

10. In State of A.P v. Rajagopal Rao^, where a bus driver was convicted under S. 304-A of ‘the I.P.C.,’ in connection with an accident which resulted in the death of one person, it is held that the High Court erred in allowing respondent bus driver's revision petition and upsetting concurrent findings of fact of lower courts without considering evidence on record and without indicating how lower courts were wrong in reaching their conclusions and without giving any reasons as to why the revision was being allowed. ^(2000) 10 see 338 9 Dr.YLR,J Crl.R.C.No.429 of 2009 Dated 18.02.2025

11. At this juncture it is apposite to refer the judgment of the Hon’ble Apex Court in Bindeshwari Prasad Singh v State of Bihar'* wherein at Paragraph Nos. 12 & 13 it is held as under; “12. ...We have carefully considered the material on record and we are satisfied that the High Court was not justified in re appreciating the evidence on record and coming to a different conclusion in a revision preferred by the information under Section 401 of the Code of Criminal Procedure, Sub-section (3) of Section 401 in terms provides that nothing in Section 401 shall be deemed to authorize a High Court to convert a finding of acquittal into of conviction. The aforesaid sub-section, which places a limitation on the powers of the revisional Court, prohibiting it from convert a finding of acquittal into one of conviction, is itself indicative of the nature and extent of the revisional power conferred by Section 401 of the Code of Criminal Procedure, if the High Court could not convert a finding of acquittal into one of the conviction directly, it could not do so indirectly bv the method of ordering a re-trial. It is well settled by a catena of decisions of this Court that the High Court will ordinarily not interfere in revision with an order of acquittal except in exceptional cases where the interest of public justice requires interference for the of a manifest illegality or the prevention of gross miscarriage of justice. The High Court will not be justified in interfering with an order of acquittal merely because the trial Court has taken a wrong view of the law or has erred in appreciation of evidence. It is neither possible nor advisable to make an exhaustive list of circumstances in which exercise of revisional jurisdiction may be justified, but decisions of this Court have laid down the parameters of exercise of revisional jurisdiction by the High Court under Section 401 of the Code of Criminal Procedure in an appeal against acquittal by a private party. correction ...

13. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not re-appreciate the evidence to reach a finding different from the trial Court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted. ” interfere (2002) 6 see 650 10 Dr.YLR,J Crl.R.C.No.429 of2009 Dated 18.02.2025

12. The learned Trial Court and the Appellate Court gave concurrent findings that the revisionist was the driver of the vehicle at the time of the accident and had driven the vehicle in a rash and negligent manner. The concurrent findings cannot be disturbed in this instant revision. Basing on the evidence of the witness, both Courts below had come to correct conclusion with regard to the occurrence of the accident and the driver of the vehicle drove rash and negligent manner and the revisionist was driver of the vehicle. Therefore, the learned Courts below had rightly found the revisionist guilty for the offence punishable under Section 304-A, 338 and 337 of ‘the I.P.C. As laid down in Bindeshwari Prasad Singh supra in the absence of any legal infirmity either in the procedure or in the conduct of the trial, there i IS no justification for this Court to interfere in exercise of its revisional jurisdiction. The High Court cannot re-appreciate the evidence to reach a finding different from the Trial Court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted.

13. The Appellate Court had reduced the sentence of 1 year simple imprisonment imposed by the learned Magistrate to rigorous imprisonment for 6 months. The learned Appellate Court while reducing the sentence of imprisonment, gave certain observations at paragraph No. 14 of it’s judgment, which are vital for consideration of this revision. Therefore, paragraph No.14 of the Judgment is reproduced as under: 11 Dr.YLR,J Crl.R.C.No.429 of2009 Dated 18.02.2025 In case of offence punishable under section 304-A IPC, 338 14. IPC and 337 IPC, contribution by the other person has no relevancy as regards finding the guilt. However such factors mav be taken into consideration while imposing punishment It is in the evidence that in the afternoon of 23.2.2003 the car bearing No. AP 5G 16 was engaged to attend a marriage in K.Pedapudi and in that night the car was returning. It is not shown if the driver was given amnie times to have sleep while PW 1 to PW.3 and the deceased were attending a marriage function. The 1^‘ accused was driving thf^ .r»r as a driver taken on hire. So he must be obeying the orders of PW.1 to PW.3 and the deceased and as per their instructions, he must be driving the vehicle on odd hours at about 1 or 1.30 a m for sound sleep. Naturally it is time for sound steep. If the driver was taking the vehicle at high speed and when he M/as drowsy, he may not be in a position to control the vehicle and even small blink may lead to fatal accident. In fact it appears to have happened in this case. Therefore the circumstance of driving the vehicle at such odd hours was not certainly within the control of the 1^‘ accused-driver Taking these factors into consideration, I feel that the sentence of imprisonment for the offence under section 304 IPC may be reduced to six months rigorous imprisonment instead of one-year while the imposition of fine may not be simple imprisonment, disturbed. ”

14. In Ismail v. Police Sub Inspector, Hospet^ in regard to the offence punishable under Section 304-A of ‘the I.P.C.,’ the Hon’ble Apex Court having noted the age of the appellant was 74 years and the medical certificate established that the appellant's movement was fairly restricted, the sentence to undergo 15 days imprisonment already suffered by Ismail was held to be the proper sentence.

15. In State of Punjab v. Saurabh Bakshi^ the Revisionist therein would not be entitled to the benefit of probation as he was professional driver, so no leniency or compassion can be shown towards a professional driver unless mitigating circumstances were proved to be existing. ^2013(1)RCR (Criminal) 826 ® (2015) 5 see 182 12 Dr.YLR,J Crl.R.C.No.429 of2009 Dated 18.02.2025

16. In State of Orissa v. Nakula Sahu^, at Paragraph Nos.9 and 29 it is held as under: “9. So far as the first point is concerned, it is to be emphasised that although the revisional power of the High Court under S. 439 read with Sec. 435 of the Code the Criminal Procedure, 1898 is as wide as the power of Court of Appeal under S. 423 of the Code, it is now well settled that normally the jurisdiction of the High Court under Sec. 439 is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriape of justice. Reference in this connection may be made to the decisions of this Court in Amar Chand Agarwalla v. Shanti Bose (1973) 4 see 10: (AIR 1973 SC 799) and Akalu Ahir v. Ramdeo Ram (1973) 2 SCC 583 : (AIR 1973 SC 2145). In the latter case viz. Akalu Ahir v. Ramdeo Ram (supra) this Court following its earlier decision in the Amar Chand Agarwalla v. Shanti Bose (supra) held that in spite of the wide language of S. 435 of the Code of Criminal Procedure, 1898 which empowered it to satisfy itself as to the correctness, legality or propriety of any findings, sentence or order recorded or passed by any inferior court situate within the limits of its jurisdiction and as to the regularity of any proceeding of such inferior court and in spite of the fact that under S. 439 of the Code it can exercise inter alia the power conferred on a court of appeal under S. 423 of the Code the High Court is not expected to act under S. 435 or S. 439 as if it is hearing an appeal. The power being discretionary, it has to be exercised judiciously and not arbitrarily or lightly. Judicial discretion, as has often been said, means a discretion which in informed by tradition, methodised by analogy and disciplined by system.

29. For the foregoing reasons, we set aside the aforesaid judgment and order of the High Court acquitting Gopinath Patra and Niranjan Naik and convict them for the offences with which they were charged and held guilty by the trial court. Keeping, however, in view the fact that the said respondents are likely to lose their jobs and must have gone through a lot of mental and financial strain during the prolonged proceedings before the courts lasting for over fourteen years, we think that a consolidated fine of Rs. 10.000 in case of each of the respondents will meet the ends of justice. Accordingly imprisonment, we impose a sentence of fine of Rs. 10.000 on each .me of the said respondents viz. Gopinath Patra and Niranian Naik. substantive sentence remitting ^AIR 1979 SC 663 \ r 13 Dr.YLR.J Crl.R.C.No.429 of 2009 Dated 18.02.2025 In default of payment of fine, each one of the said respondents shall undergo imprisonment for a period of six months. The fine shall be deposited within a period of two months from today failing which the aforesaid respondents shall surrender themselves to their bail bonds to undergo the aforesaid imprisonment imposed on them in default of payment of fine. ” In Dulichand v. Delhi Administration® at Paragraph No.4 it is held as

17. under: ...Now the jurisdiction of the High Court in a Criminal Revision Application is severely restricted and it cannot embark upon a re-appreciation of the evidence, but even so, the learned Single Judge of the High Court who heard the revision application examined the evidence afresh at the instance of the appellant. This was, however, of no avail, as the learned single Judge found that the conclusion reached by the lower Courts that the appellant was guilty of gross negligence was correct and there was no reason to interfere with the conviction of the appellant. The learned single Judge accordingly confirmed the conviction and sentence recorded against the appellant and dismissed the revision application...”

18. The revision was filed in the year 2009. The alleged accident occurred in the year 2003. Nearly 22 years have passed by. The revisionist was 20 years at the time of the commission of the offence. At that age he was neither grown as a full-fledged driver nor a professional driver. He was constrained to drive the vehicle at odd hours as per the obligation or request of P.Ws.1 to 3.

19. Right to speedy trial which includes hearing of the Appeal and Revision is part of a fundamental right under Article 21 of the Constitution annunciated by the Hon’ble Supreme Court in Hussainara Khatoon (IV) v. Home Secretary State of Bihar®. In Rajdeo Sharma v. State of Bihar^° it is ®A1R 1975 SC 1960 ® 1979 AIR 1360 '“(1999) 7 see 604 14 Dr.YLR,J Crl.R.C.No.429 of 2009 Dated 18.02.2025 held that in addition to the appeals the right to a speedy trial also includes criminal revisions.

20. The Assistant Public Prosecutor fairly conceded that there were no prior or subsequent antecedents against the revisionist that he involved in similar types of offences. The revisionist had already undergone 10 days of imprisonment.

21. The learned counsel for the revisionist volunteers to pay fine Rs.20,000/- excluding fine amount that the revisionist had already paid as a measure of penance, instead of undergoing punishment of imprisonment. The said voluntary statement is recorded and approved.

22. Section 304-A of ‘the I.P.C.,’ gives discretion to the Court either to impose imprisonment up to 2 years or fine or both. Taking into the account the peculiar facts and circumstances of the case, the revisionist being not a professional driver and aged about 20 years at the time of the alleged accident, interest of justice would sub-serve, if imprisonment for six months is modified to the sentence of imprisonment which the revisionist had already undergone, while enhancing the sentence of payment of fine for an amount of Rs.20,000/-, excluding fine amount already paid by the revisionist, it would suffice to meet the ends of justice.

23. In the result, this Criminal Revision Case is disposed of, the sentence of rigorous imprisonment for six months imposed by the learned Appellate Court, is modified to the sentence of imprisonment which the revisionist had already 15 Dr.YLR,J Crl.R.C.No.429 of2009 Dated 18.02.2025 undergone, while enhancing the sentence of payment of fine for an amount of Rs.20,000/-, excluding fine amount already paid by the revisionist. In default of payment of enhanced fine amount, the revisionist shall undergo simple imprisonment for three months. The enhanced payment of fine shall be paid by the revisionist within two months from the date of receipt of copy of this order.

24. It is made clear that the fine amount of Rs.20,000/- as ordered above shall be apportioned and paid to the legal representatives of the deceased equally, as early as possible, under Section 357 of ‘the Cr.P.C.’

25. The learned Judicial Magistrate of First Class, Mummidivaram, is directed to take up further follow up steps pursuant to the judgment of this court. There shall be no order as to costs. As a sequel, interlocutory applications, if any pending, shall stand closed. //TRUE COPY// Sd/- K TATA RAO DEPUTY REGISTRAR SECTION OFFICER One fair copy to Hon’ble Dr Justice Y. LAKSHMANA RAO (for his Lordships kind perusal) To

1. The Judicial First Class Magistrate, Mummidivaram , East Godavari District, (with records)

2. The II Additional Sessions Judge, Amalapuram, East Godavari District. (with records)

3. The Superintendent, Central Prison, Rajahmundry, East Godavari District.

4. Two CCs to the Public Prosecutor, Amaravathi [OUT] High Court of Andhra Pradesh,

5. One CC to Sri Polisetty Radha Krishna, Advocate [OPUO

6. Nine (09) LR. Copies.

7. The Under Secretary, Union of India, Ministry of Law, Justice and Company Affairs, New Delhi.

8. The Secretary, Andhra Pradesh High Court Advocates’ Association Library, High Court Buildings, Amaravathi.

9. The Section Officer, Criminal Section, High Court of Andhra Pradesh at Amaravathi. (to dispatch the trial court records) lO.Three CD Copies TK HIGH COURT DATED:18/02/2025 < * ORDER CRLRC.No.429 of 2009 I 17 MAR 2025 Current Section . ^ €oJ; DISPOSING OF THE CRIMINAL REVISION CASE