Puttam Sambasiva Rao v. The State of Andhra Pradesh

Order

HIGH COURT OF ANDHRA PRADESH AT AMARAVATI **** CRIMINAL REVISION CASE No.940 OF 2011 Between PUTTAM SAMBASIVA RAO, S/0 VENKATESHWARA RAO, R/0 MOGULUKUR VILLAGE, KANCHIKACHERLA MANDAL, GUNTUR DIST. ...PETITIONER Versus THE STATE OF A P, Represented by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad. Through the S.H.O., Mangaiagiri Rural P.S., Guntur Dist. I ...RESPONDENT DATE OF ORDER PRONOUNCED

04.02.2025 **** 2 Dr.YLR,J Crl.R.C.No.940 of 2011 04/02/2025 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? Yes/No

#3. Whether His Lordship wish to see the fair copy of the Judgment? Yes/No 3 Dr.YLRJ Crl.R.C.No.940 of 2011 04/02/2025 * THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO + CRIMINAL REVISION CASE No.940 OF 2011 % 04.02.2025 # Between: PUTTAM SAMBASIVA RAO, S/0 VENKATESHWARA RAO, R/0 MOGULUKUR VILLAGE, KANCHIKACHERLA MANDAL, GUNTUR DIST. ...PETITIONER Versus

THE STATE OF A P, Represented by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad. Through the S.H.O., Mangalagiri Rural P.S., Guntur Dist. ...RESPONDENT ! Counsel for the Petitioners : R.Sudha Rani, Legal Aid Counsel Counsel for the Respondent : Sri K.Sandeep, Assistant Public Prosecutor < Gist: > Head Note: 4 Dr. YLR,J Crl.R.C.No.940 of 2011 04/02/2025 ? Cases referred: 1) 2) 3) 4) 5) (1993) 4 see 10 (1973) 2 see 583 (2011) 2 see 490 (1990) 2 BLJ 349 AIR 1979 Se 1360 6) (2015) 13 see 444 7) (2015) 5 see 182 8) (2015) 5 see 197 9) (2012) 2 see 182 * 5 Dr.YLRJ Crl.R.C.No.940of2011 04/02/2025 THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL REVISION CASE NO: 940/2011 ORDER: This Revision was directed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C.,’) against the judgment in Crl.A.No.342 of 2010 dated 07.12.2010 on the file of the Additional Sessions Judge-Cum-Judge, Family Court, Guntur, whereunder the Revisionist was convicted and sentenced for the offence under Sections 304-A and 338 of the Indian Penal Code (for short ‘the I.P.C.,’) The learned Additional Junior Civil Judge, Mangalagiri, Revisionist guilty vide judgment dated

01.07.2010 in C.C.No.312 of 2005.

#2. On the following material grounds the Revision was preferred: P.Ws.1 to 4 have no previous acquaintance with the Revisionist; no test identification parade was conducted identifying the Revisionist as a person who drove the offending vehicle; non-examination of the driver of the auto bearing N0.API6 X 7348 i.e., L.W.7 who was the independent witness to speak against the Revisionist. The vehicle in question was travelling with excess passengers beyond its permissible capacity. The Defacto-complainant himself lost control of the auto and the auto might have tilted which led to the death and injuries of the passengers. Non-examination of the passengers travelling in the auto bearing No. AP 16 X 7348 was fatal to the case of the 6 Dr. YLR,J Crl.R.C.No.940 of 2011 04/02/2025 prosecution. The Defacto-complainant to avoid prosecution and payment of compensation to the kith and kin of the deceased fabricated a false case against the Revisionist. The learned Trial Court failed to take into account the omissions and contradictions in the evidence of the prosecution witnesses. The observation of the learned Trial Court is that no material information was elicited in the cross-examination of the witnesses of the prosecution erroneous. The learned Appellate Court did not independently consider the evidence of the witnesses of prosecution in correct perspective and carried away by the findings of the learned Trial Court. There was no corroboration and consistency in the evidence of P.Ws.1 & 3. It is submitted that the learned Trial Court and the learned Appellate Court were erroneous in convicting and sentencing the accused for the offence under Sections 304-A and 338 of ‘the I.P.C.’

#3. I have heard the arguments of Ms.R.Sudharani, learned Legal Aid Counsel for the Revisionist and Sri K.Sandeep, learned Assistant Public Prosecutor.

#4. Mrs. R.Sudharani, learned Legal Aid Counsel for Petitioner reiterated the grounds of Revision and argued that the learned Appellate Court and also the learned Trial Court came to the wrong conclusion and convicted the accused. The learned Courts ought to have given the benefit of doubt to the Revisionist as the prosecution was not able to prove the guilt of 7 Dr.YLRJ Crl.R.C.No.940 of 2011 04/02/2025 the accused beyond all reasonable doubt; non-examination of the Motor Vehicle Inspector (MVI) who issued the certificate was fatal to the case of the prosecution. Similarly, independent witnesses were not examined by the prosecution to bring out the truth in the case and urged this Court to acquit the Revisionist by setting aside the conviction and sentence imposed by the learned Appellate Court.

#5. Per contra, Sri K.Sandeep, learned Assistant Public Prosecutor vehemently argued that the evidence of P.Ws.1 to 3 is consistent and corroborating in material particulars, trustworthy, and inspires confidence. The prosecution proved the guilt of the accused beyond all reasonable doubt. Photographs filed and marked and the scene observation Report exhibit the veracity of the speed of the offending vehicle. The Revisionist was identified by the prosecution witnesses. The learned Trial Court and Appellate Court came to correct conclusions and convicted the Revisionist by appreciating the evidence of the prosecution witnesses in the correct perspective. There are no grounds let alone valid grounds to interfere with the concurrent finding of conviction and sentence imposed by the Trial Court and the Appellate Court and argued to dismiss the Revision.

#6. Thoughtful consideration is bestowed on the arguments advanced by both parties and I have perused the material available on record. 8 Dr.YLRJ Crl.R.C.No.940 of 2011 04/02/2025

#7. Now the consideration CrlANo.342 of 2010 dated 07.12.2010, is, whether the judgment i passed by the learned Additional District Judge-Cum-Judge, Family Court, Guntur i , is correct, legal, and proper with respect to its finding, sentence, or judgment, and there are any material irregularities? And to what relief?

#8. 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 there is a manifest error a point of law which has consequently resulted i flagrant miscarriage of justice.

#9. Similarly, the Supreme Court in Kalu Ahir v. Ramdeo Ram (1973)^, 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 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 is hearing an appeal. ^ (1993) 4 see 10 ' (1973) 2 see 583 9 Dr. YLR,J Crl.R.C.No.940 of 2011 04/02/2025 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.

#10. To prove the guilt of the Revisionist the prosecution had examined four witnesses. P.Ws.1 to 3 are the direct witnesses of the occurrence. P.W.1 testified that on 06.05.2005, he was driving the Auto and proceeding towards Vijayawada from Tenali by carrying the deceased, P.W.2 and P.Naga Raju (L.W.3). At about 2 or 2-30 P.M., after he had crossed Saibaba Temple at Pedavadlapudi Village, one Goods Auto came in opposite to his Auto rashly and dashed his auto. As a result, his auto fell aside and the Goods Auto further dashed another Auto which was behind the Auto of P.W.1. In that accident, Lakshmi died on the spot, P.W.2 sustained injury under his knee to his right leg, P.W.1 himself sustained injury to his head and on his right buttock. P.W.1 identified the Revisionist as the driver of the Goods Auto. P.W.1 further deposed that the Revisionist went away from the scene of offence after seeing them. P.W.2 also testified on the same lines as P.W.1. S.Narasamma (P.W.3) who is grandmother of deceased corroborated with the versions of P.Ws.1 & 2.

#11. Nothing concrete was elicited from the cross-examination of P.W.1 to spurn his evidence that P.W.1 was testifying false. Mere relation is not a 10 ■ Dr. YLR,J Crl.R.C.No.940 of 2011 04/02/2025 ground to disbelieve the version of a witness whose deposition inspires confidence. Though a suggestion was given that P.W.1 was testifying at the behest of the Police in identifying the driver of the crime vehicle, suggestion was vehemently denied by P.W.1. The test identification parade, in this case, is not intrinsically necessary since the offence took place in broad daylight and the Revisionist was clearly seen by the eye-witnesses and injured. The Revisionist had also seen the deceased and injured witnesses and ran away from the scene of offence.

#12. The cross-examination of P.W.3 had become unchallenged except putting a suggestion that P.W.3 did not state about the numbers of the Auto. The Sub-Inspector of Police (P.W.4), who conducted the investigation and filed a charge sheet in the court, deposed that he examined the scene of offence and prepared a sketch of it under Ex.P4 & P5, he got photographed the scene of offence vide Ex.P6 to P11 and its corresponding negatives vide Ex.P12 to PI 7. An autopsy was conducted on the cadaver of the deceased in the presence of the panchayatdars who unanimously opined that the death was due to an accident vide Inquest Report Ex.P18. Postmortem Examination Report Ex.P19 testifies that Lakshmi died because of road accident injuries. P.W.4 in categorical terms deposed that he gave requisition to MV Inspector to inspect the crime vehicle. Accordingly, the Motor Vehicle Inspector inspected the vehicle and issued Ex.P20 Report. He obtained would / 11 Dr.YLRJ Cri.R.C.No.940 of 2011 04/02/2025 certificates vide Ex.P21, P22, P23, P24 & P25 of the accused and the injured respectively. More importantly on 23.05.2005, the owner of the crime vehicle produced the Revisionist before the Inspector. Later the Inspector arrested and sent him to remand. This evidence corroborates with the version of P.Ws.1 to 3 who testified that they identified the accused as the driver of the crime vehicle. Nothing concrete was elicited from P.W.4 that he conducted a investigation and filed the charge sheet for statistical purpose to implicate the accused. The evidence of P.Ws.1 to 4 is mutually corroborating and consistent. P.Ws.1 to 3 in unison deposed that the Revisionist drove the vehicle in a rash and negligent manner and caused the death of deceased - Lakshmi.

#13. With regard to the identification of accused, the Hon'ble Supreme Court in Rabindra Kumar Pal alias Dara Singh v. Republic of India^ held that the identification of the accused for the first time before the trial Court is admissible in evidence. In instant case, P.Ws.1 & 2 identified the Revisionist before the learned Trial Court as the driver of the vehicle at the time of the accident. Therefore, the Revisionist was rightly found guilty by the learned Trial Court and the learned Appellate Court. In the instant case, when the eye-witnesses got an ample opportunity to see the Revisionist at the scene of offence and they had identified him before the learned Trial Court ^ (2011) 2 see 490 «, - 12 Dr.YLRJ Crl.R.C.No.940 of 2011 04/02/2025 non-conduction of Test Identification Parade is not fatal to the case of prosecution. It has to be observed that the memory of the injured eye witnesses in identifying the accused in the open Court four or five years after the commission of the grave road accidents, which left a permanent scar on their lives, cannot be lightly jogged or lost and the Courts cannot undermine such remembrance of direct eye-witnesses. No previous acquaintance is required to identify an offender when the eye-witnesses had seen clearly the offender at the time of the commission of the road offence. Non-examination of the driver of the Auto bearing No.AP 16 X 7348 is immaterial since the injured eye-witnesses had deposed in favour of the prosecution.

#14. In Ram Bilash Roy v. State of Bihar^ it is held that the witness essential to unfold prosecution case is necessary to be examined and non- examination of a few other witnesses is not fatal to the prosecution case. Even though Auto bearing No.AP 16 X 7348 was with six passengers beyond the permissible limit of four passengers, it is immaterial as the eye-witnesses deposed that, the Revisionist drove the vehicle in a rash and negligent manner. The Revisionist failed to elicit from injured eye-witnesses in their cross-examination that the Defacto-Complainant to avoid prosecution and payment of compensation to the legal heirs of the deceased fabricated a false case against the Revisionist. The learned Appellate Court rightly examined '*(1990) 2 BU 349 13 Dr.YLRJ Crl.R.C.No.940of2011 04/02/2025 and assessed the veracity of the evidence from prosecution witnesses and rightly confirmed the conviction and sentence imposed by the learned Trial Court against the Revisionist.

#15. The learned Trial Court convicted and sentenced the Revisionist for the offence under Section 304-A and 338 of ‘the I.P.C.,’ and sentenced to rigorous imprisonment for one year and also to pay a fine of Rs.5,000/- (Rupees five thousand only), in default of imprisonment for three months for the offence under Section 304-A of ‘the I.P.C.,’ and sentenced to undergo rigorous imprisonment for six months and also pay fine of Rs. 1,000/- (Rupees one thousand only) and in default to suffer simple imprisonment for one month for the offence under Section 338 of ‘the I.P.C.’ The learned Appellate Court was not inclined to interfere with the findings of conviction and sentence and dismissed the Appeal. The offence took place nearly 20 years ago. As seen from the record the Revisionist surrendered on 11.04.2011 and he was imprisoned for seven days, later he got enlarged on bail by the orders of this Court. Undeniably, 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^. ^ AIR 1979 SC 1360 14 Dr.YLR,J Crl.R.C.No.940 of 2011 04/02/2025

#16. There was neither misreading of the evidence nor perverse finding either by the learned Trial Court or by the learned Appellate Court. The evidence of prosecution witnesses is mutually consistent, corroborating, trustworthy, and inspiring confidence. The judgment passed by the learned Appellate Court is correct, legal, and proper. There was no irregularity much less material irregularity in conducting the trial and finding the Revisionist guilty. The evidence of all the prosecution witnesses corroborating with each other. There were no material contradictions or omissions in the evidence of the witnesses to disbelieve the version of the prosecution.

#17. The learned Legal Aid Counsel urged this Court to apply the provisions of Sections 3 and 4 of the Probation of the Offenders Act, 1958 (for short ‘the P.O.Act.,’) and section 360 of ‘the Cr.P.C.’ In this regard it is apposite to refer the decision of the Apex Court in Central Bureau of Investigation v. Sanjiv Bhalla^ wherein at paragraph No.22, it is observed as under: “22. It does appear that depending upon the facts of each case, causing death by what appears (but is not) to be a rash or negligent act may amount to an offence punishable under Part II of Section 304 iPC, not warranting the release of the convict under probation. There may also be situations where an offence is punishable under Section 304-A IPC in an accident "where mens rea remains absent" and refusal to release a convict on probation in such a case may be too harsh an approach to take. An absolute principle of law cannot be laid down that in no case falling under Section 304-A IPC should a convict be released on probation. This is certainly not to say that in all cases falling under Section 304-A IPC, the convict must be released on probation-it is only that the ® (2015) 13 see 444 4 15 Dr.YLR,J Crl.R.C.No.940 of 2011 04/02/2025 principles laid down in Sections 360 and 361 of the Criminal Procedure Code and the Probation of Offenders Act should not be disregarded but should be followed and an appropriate decision, depending on the facts of the case, be taken in each case. ”

#18. The Revisionist was a professional driver of goods Auto, who was aged about 21 years at the time of the accident. The magnitude of the accident was the Auto of the Revisionist not only hit the Auto in which deceased and other injured were travelling but also another Auto coming behind the Auto of P.W.1. Photographs of scene of offence and the sketch show the Auto was driven at high speed rashly. In view of the above, the Revisionist is not entitled for any relief under ‘the P.O. Act.’

#19. In State of Punjab v. Saurabh Bakshi^, the Supreme Court set aside the reduced sentence imposed by the High Court and held that 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 unless mitigating circumstances were proved to be existing.

#20. The Supreme Court in State of M.P. v. Mehtaab^ set aside the judgment of the High Court which let off the Accused therein for a period of sentence of 10 days already undergone. ^(2015) 5 see 182 ®{2015) 5 see 197 16 Dr.YLR,J Crl.R.C.No.940 of 2011 04/02/2025

#21. Similarly, the Apex Court in State of Punjab v. Balwinder Singh® set aside the judgment of the High Court which reduced the sentence of 15 days already undergone by the accused and he was sentenced to undergo imprisonment for a period of six months.

#22. Mrs. R.Sudha Rani, learned Legal Aid Counsel submits that as nearly twenty years had elapsed between the date of the offence/accident and the present decision in this Revision and requests for imposing the sentence already undergone by the Revisionist. The alternative submission of the learned Legal Aid Counsel to impose punishment on the Revisionist to the sentence already undergone by him cannot be considered in view of the law laid down by the Apex Court in the judgments referred supra.

#23. It has to be borne in mind that the accident was a head-on collision. The offence was committed in the year 2005 and nearly 20 years rolled by. In this case the Accused was a professional goods carrier Auto driver and his age is less than 45 years as of now. At the time of commission of the offence he was 21 years. The learned Assistant Public Prosecutor reported that there are neither prior nor subsequent negative accidents against the Revisionist that he had been involved in similar offences. It is not the case of the prosecution that the Accused drove the Auto inebriated condition. There are no previous or subsequent adverse antecedes forthcoming against the Revisionist that he ® (2012) 2 see 182 4 17 Dr.YLRJ Crl.R.C.No.940 of 2011 04/02/2025 had indulged in similar offence. Taking into account the above factors, the imposition of rigorous imprisonment of one year is excessive and not proportionate to the gravity of the offence.

#24. In view of the above, in the facts and circumstances of the instant case. imposition of six months simple imprisonment and a fine of Rs.5,000/- for the offence under Section 304-A of ‘the I.P.C.,’ would have met the ends of justice. Similarly imposition of three months of simple imprisonment and fine of Rs. 1,000/- would have met the ends of justice for the offence under Section 338 of ‘the I.P.C.’. Accordingly, this Court is not inclined to interfere with the conviction of the Revisionist for the offence under Section 304-A and 338 of the I.P.C.,’ but imposition of sentence of rigorous imprisonment is modified from one year to six months simple imprisonment and a fine of Rs.5,000/- for the offence under Section 304-A of ‘the I.P.C.,’ and in default of payment of fine the Revisionist has to undergo three months simple imprisonment. The Revisionist is sentenced to undergo simple imprisonment for three months and fine of Rs.1,000/- for the offence under Section 338 of ‘the I.P.C.,’ and in default of payment of fine the Revisionist has to undergo one month simple imprisonment. Both the sentences of imprisonments shall run concurrently.

#25. Accordingly, this Criminal Revision Case is disposed of. No order as to costs. 18 Dr.YLRJ Crl.R.C.No.940 of 2011 04/02/2025

#26. The learned Additional Junior Civil Judge, Mangalagiri, Guntur District, is directed to take steps forthwith for securing the presence of the Revisionist and follow the directions in this judgment.

#27. Registry is directed to mark a copy of this Order to the learned Additional Junior Civil Judge, Mangalagiri, Guntur District. As a sequel, interlocutory applications, if any pending, shall stand closed. //TRUE COPY// SD/- K.TATARAO DEPUTY REGISTRAR SECTION OFFICER One Fair Copy to HONOURABLE DR JUSTICE Y. LAKSHMANA RAO (for His Lordship’s kind perusal) To.

#1. The Additional Sessions Judge cum Judge, Family Court, Guntur, Guntur District (with records)

#2. The Additional Junior Civil Judge, Mangalagiri, Guntur District, (with records)

#3. The Superintendent, District Jail, Guntur, Guntur District

#4. The Station House officer, Mangalagiri Rural Police Station, Mangalagiri, Guntur District

#5. Two CC’s to Public Prosecutor, High Court of Andhra Pradesh, at Amaravati. [OUT]

#6. 9 L.R. 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, Amaravarthi.

#9. One CC to M/s. R SUDHA RANI ( Legal Aid Counsel) Advocate [OPUC]

#10. The Section Officer, Criminal Section, High Court of Andhra Pradesh at Amaravathi

#11. THREE CD COPIES Skm TAG HIGH COURT -DATE 0:04/02/2025 ORDER CRLRC.No.940 of 2011 19 FEB 2025 'g ^ . Currefii becuon S DISPOSING OF THE CRL.RC., WITHOUT COSTS