the maximum speed of the vehicle like tractor trailer is a very low speed when compared to other heavy vehicles and that the cycle was not damaged and PW1 did not sustain injuries in the accident are no circumstances to brush aside the direct evidence showing the rashness and negligence on the part of the accused while driving the tractor trailer at the time of accident. PW1s evidence is very clear that after the tractor hit the cycle from behind he fell to the left side and that the deceased fell to the right side and that therefore, the deceased came under the wheels of the vehicle. Therefore, there is explanation for the cycle not getting damaged and PW1 not sustaining injuries in the subject accident. It is not the case of the accused that he has rendered necessary assistance to the victims after the accident in due discharge of his legal obligation under the provisions of the Motor Vehicles Act. His case is one of total denial. Therefore, it follows that he is liable to be punished for the offences with which he was charged.

THE HON'BLE SRI JUSTICE  M. SEETHARAMA MURTI        

Criminal Revision Case No.1100 of 2007

30-01-2015

Rajula Pothu Raju. Petitioner
                       
The State of Andhra Pradesh rep., by its Public Prosecutor... Respondent

Counsel for the petitioner:  Sri Nimmagadda Satyanarayana

Counsel for Respondent  : STATE


<Gist :


>Head Note:
? Cases referred:


THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI          

CRIMINAL REVISION CASE No.1100 OF 2007      

ORDER:
                This Criminal Revision Case under Sections 397 and 401 of the
Code of Criminal Procedure, 1973 (for short, the CrPC) by the petitioner/sole
accused is directed against the judgment dated 23.07.2007 of the learned V
Additional Sessions Judge (Judge, Fast Track Court), Eluru of West Godavari
District passed in Criminal Appeal No.223/2006.
1.              (a)     By the judgment dated 02.11.2006 in C.C.No.283/2004 the
learned II Additional Judicial Magistrate of First Class, Eluru had found the
accused guilty of the offences punishable under Section 304A of the Indian Penal
Code (for short, the IPC) and Sections 134(a) & (b) read with Section 187 of
the
Motor Vehicles Act and had convicted the accused of the said offences and
sentenced the accused to undergo rigorous imprisonment for one year and to pay
a fine of Rs.1000/- and suffer simple imprisonment for three months in default
in
payment of fine amount under the first count and to pay a fine of Rs.1000/- and
Rs.100/- respectively and to suffer simple imprisonment for three moths and one
week respectively in default of payments of the said fine amounts for the
offences under the other two counts.  The learned Additional Sessions Judge
while dismissing the appeal of the accused had confirmed the judgment of the
trial Court in all respects.
2.              I have heard the submissions of the learned counsel for the
petitioner/accused and also of the learned Public Prosecutor.  I have carefully
perused the material record.
2.              (a)     The learned counsel for the petitioner/accused would
submit as follows: - The trial Court misread and misinterpreted the facts as
well
as the evidence and mis-applied the law.  The trial court failed to appreciate
discrepancies in the evidence of the witnesses with reference to their earlier
statements recorded by the police under Section 161(3) of the CrPC.  The cycle
was not damaged in the accident and the pillion rider on the cycle also did not
sustain even a simple injury.  Had the vehicle like a tractor trailer dashed the
cycle, PW1 would have also sustained injuries and the cycle would have been
damaged.  Therefore, there is reason to accept that no accident as alleged in
the
prosecution had taken place and that at any rate PW1 did not accompany the
deceased on the cycle at the time of the accident and that therefore, PW1 is not
present at the scene of offence at the time of accident.  The witnesses stated
that
the trailer ran over the deceased, whereas the investigation disclosed that the
rear tyre of the tractor had run over the deceased.  The evidence does not show
that there is rashness and negligence on the part of the accused.  The maximum
speed limit of a tractor is very low when compared to other heavy motor
vehicles; therefore, it cannot be said that the tractor was driven rashly or at
a
high speed.  The court below was unduly harsh in awarding the sentence.
2.              (b)     Per contra, the learned Additional Public Prosecutor had
submitted that the accused was rash and grossly negligent in driving the crime
vehicle; and, that his rash and negligent driving had resulted in the vehicle
dashing against the deceased who was peddling the cycle; and, that the Courts
below had appreciated the oral and documentary evidence in the right
perspective; and, that there is no merit in any one of the contentions raised by
the
revision petitioner/accused and that the revision is devoid of merit and is
liable
to be dismissed.
3.              Now the points for determination are: -
1.      Whether the prosecution had successfully
brought home the guilt of the accused, beyond
all reasonable doubt, for the offences
punishable under Sections 304A of the IPC and
under Sections 134(a) read with Section 187 and
134(b) read with Section 187 of the Motor
Vehicles Act?
2.      Whether the accused had made out valid and
sufficient grounds for his acquittal of the said
offences? And, if so, whether the judgment
impugned is liable to be set aside?

4.              POINTS:
4.              (a)     The case of the prosecution including the gravemen of the
charge, in brief, is as follows: On 20.02.2004 at about 10.00 AM, the accused
was
driving the tractor trailer bearing registration No.AP 37T 7585 and No.APW 9112
respectively.  While the said tractor, being driven by the accused, was
proceeding
from Pedapadu bridge road to Municipal Office, Eluru, the accused drove the
said vehicle at a high speed and in a rash and negligent manner and dashed the
cycle of Bobbadhi Venkateswararao (the deceased) from behind.  As a result,
S.Durgarao-PW1 who was traveling on the said bicycle fell on the left side and
the deceased, who was peddling the cycle, fell on the right side.  On that, the
rear
wheel of the tractor ran over the said deceased and the deceased had succumbed
to severe head injuries while undergoing treatment in the hospital.  Basing on
the
hospital intimation and the statement of PW1, the subject crime was registered
by the Station House Officer, Eluru Traffic Police Station.  On completion of
investigation, a charge sheet was laid against the accused.
4.              (b)     Before the trial Court, PWs 1 to 11 were examined and
exhibits P1 to P11 were marked.  No evidence was adduced on the side of the
accused.
4.              (c)     Now it is necessary to examine the evidence on record to
find out whether the prosecution was successful in bringing home the guilt of
the
accused for the charges levelled against him.
4.              (d)     PW1, who had traveled on the cycle of the deceased at the
time of the accident had testified as follows: - On 20.02.2004 at about
10.00 AM while he and the deceased were going on the cycle from Hai Hotel
centre, Eluru, the tractor came from behind at a high speed and dashed the cycle
and that the deceased fell to the right side and he [PW1] fell to the left side
and
that the rear wheel of the tractor ran over the head of the deceased; and that
the
accused was the driver of the said tractor at the time of the accident.  After
the
accident, the crime vehicle was stopped at a distance.  A traffic constable came
to
the spot.  He and the traffic constable-PW2 had shifted the deceased to the
hospital.  The deceased had died after he was admitted in the hospital.  In his
evidence, his statement which was recorded by the police was exhibited as P1.
In
his cross examination, he had stated that the tractor dashed the cycle, but not
the
trailer of the tractor and that the Centre at which the accident had taken place
is a
busy locality.  When it was suggested to him that the tractor had not dashed the
cycle and that the deceased had not died due to the fall from the cycle and on
account of the injuries sustained in the accident, he had denied the said
suggestions.  He had further denied the suggestions that he, being the pillion
rider on the cycle, moved while sitting on the cycle and that due to the
imbalance
caused, the cycle had fallen down under the trailer of the tractor and that
therefore, the deceased died and that there is no negligence on the part of the
accused, the driver.
4.              (e)     PW2, who was a Home Guard and who was on duty on that    
day at Hai Centre from 08.00 AM to 12.00 noon and who was regulating the
traffic had testified in his evidence as follows: At about 10.00 AM the
deceased
and PW1 were coming from Pedapadu to Hai Centre.  While so, the crime
vehicle coming from behind at a high speed dashed the cycle and that on that the
deceased fell to the right side and that PW1 fell to the left side and that the
rear
wheel of the tractor ran over the head of the deceased and that immediately he
and PW1 had shifted the deceased to the Hospital.  The accused was the driver of
the crime vehicle at the time of the accident.   He being on traffic duty on
that
day was controlling the traffic on the new bridge and the old bridge and that
the
scene of offence is a very busy locality with traffic and that it is difficult
at that
centre for one person to control the traffic. The accident had occurred opposite
to
Balaji Car travels. The road is a canal bund road and that the Cars of the
travel
office were parked on the tank bund road which is a single road. There is a
bridge between Vasantha Mahal Centre and the car travels area.  When it was
suggested to him that he has not witnessed the accident and that he came to the
spot after the accident and after people had gathered and that he does not know
about the accident, he had denied the said suggestions.  He had denied the
further suggestion that the driver did not drive the tractor at a high speed.
4.              (f)     PW3 is another eye witness to the accident.  He had also
deposed about the manner of the accident. But, he had stated that he cannot say
the number of the crime vehicle and he cannot identify the accused.  However,
his evidence would show that in the accident he had witnessed, two persons who
were traveling on a cycle were hit by a tractor which was coming behind the
cycle from Pedapadu side and that out of the two cyclists one has received
injuries.
4.              (g)     PW4 who is said to be another eye witness had not
supported the case of the prosecution.
4.              (h)     PW5 is the photographer who had taken photographs of the
scene of offence.
4.              (i)     PW6 is the Investigating Officer who had observed the scene
of accident and prepared exhibit P5-scene of offence observation report in the
presence of a mediator.  He had also conducted inquest over the dead body of
the deceased at the hospital and examined the witnesses including the relations
of the deceased present at the time of the inquest.  In his evidence, exhibit
P6-
Inquest report was marked.
4.              (j)     PW7 is the Motor Vehicle Inspector who had inspected the
crime vehicle on the requisition of the Police.  He had testified that on the
same
day he had gone to the police station and had inspected the tractor trailer and
found that there is no mechanical defect to the vehicle.  His report is
exhibited as
P7.  In his cross examination, it was elicited that he had examined the vehicle
at 2
PM in the police station and he had deposed to the effect that the maximum
speed of a tractor is 26 KM per hour even with load.
4.              (k)     PW8 is an Auto-driver and a cousin of the accused.  He
testified that the accused is a tractor driver on a tractor of Jayapuram village
and
that one Arjunaraju is the owner of the said tractor on which the accused is a
driver.  According to him, the accused had disclosed to him that he had caused
an accident with his tractor and that, therefore, he took him to the police and
produced before the Police.  When it was suggested to him that he does not
know anything about the accident, and that he did not produce the accused
before the Police, he had denied the said suggestions.
4.              (l)     PW9 is an Inquest Panch witness.
4.              (m)     PW10 is the Doctor who had conducted Post Mortem over  
the dead body of the deceased.  He gave exhibit P8-Post Mortem certificate; and
in his evidence he had stated that he had opined that the deceased would appear
to have died of shock due to head injury and skull fracture.
4.              (n)     PW11 is the Investigating Officer who had registered the
subject crime on receipt of exhibit P9-the hospital intimation and on recording
of
the exhibit P1-statement of PW1.  He had also issued exhibit P10-FIR.
According
to him, he had conducted the investigation and filed the charge sheet.
5.              Thus, I have carefully gone through the entire evidence.  A plain
reading of the evidence would show that the accused was driving the tractor
trailer at the time of accident and that the accident had occurred due to his
rash
and negligent driving resulting in the death of the deceased who was peddling
the cycle at the time of accident.  The contentions like the trial court did not
bestow its attention to the facts, evidence and the law and that the maximum
speed of the vehicle like tractor trailer is a very low speed when compared to
other heavy vehicles and that the cycle was not damaged and PW1 did not
sustain injuries in the accident are no circumstances to brush aside the direct
evidence showing the rashness and negligence on the part of the accused while
driving the tractor trailer at the time of accident.  PW1s evidence is very
clear
that after the tractor hit the cycle from behind he fell to the left side and
that the
deceased fell to the right side and that therefore, the deceased came under the
wheels of the vehicle.  Therefore, there is explanation for the cycle not
getting
damaged and PW1 not sustaining injuries in the subject accident. It is not the
case of the accused that he has rendered necessary assistance to the victims
after
the accident in due discharge of his legal obligation under the provisions of
the
Motor Vehicles Act.  His case is one of total denial.  Therefore, it follows
that he
is liable to be punished for the offences with which he was charged.
6.              Viewed thus, this court finds that there is no merit in any one of
the
contentions urged before this court on behalf of the petitioner/accused and
hence, this court finds that there is no merit in the revision and the revision
is
devoid of merit and is liable to be dismissed.
7.              On the measure of sentence, the learned counsel for the accused
alternately contended that while imposing fines for the offences under Sections
134(a) and 134(b) read with Section 187 of the Act coupled with in default
simple
imprisonments, the trial court was harsh in imposing a sentence of one year RI
so
far as the offence punishable under Section 304A of the IPC is concerned and
that
the said sentence is disproportionate to the gravity of the offence and that the
accused is having wife and children and that the trial court did not consider
his
plea of mercy and that the accused in the facts and circumstances of the case
may
be shown some mercy and considering the mitigating and extenuating
circumstances, the sentence may be reduced to one already undergone.
8.              Considering the peculiar facts of the case this court is not
inclined
to accept the submission that the sentence can be reduced to one already
undergone which is a bare minimum period.  However, in view of the
explanatory statement offered on behalf of the accused, this court finds that
the
sentence can be reduced to RI for two months while maintaining the fine amount
imposed for the offence punishable under Section 304A of the IPC and the other
sentences of fine for other offences under Sections 134(a) and 134(b) read with
Section 187 of the MV Act.
9.              In the result, the Criminal Revision Case is dismissed.  However,
the sentence of rigorous imprisonment for the offence punishable under Section
304A of the IPC is reduced from one year to two months while maintaining the
fine amount and the sentences of fine imposed by the trial Court for the other
two offences.   The accused shall be entitled to the benefit of set-off.  It is
stated
that the accused is at large being on bail; therefore, the accused is directed
to
surrender before the trial Court within two weeks from the date of the receipt
of
a copy of this order.  On failure of the accused to do so, the trial Court shall
take
steps for his apprehension and send him to prison for serving the remaining
period of sentence.
        Miscellaneous petitions pending, if any, in this CrlRC shall also stand
dismissed.
-----------------------------------------
M. SEETHARAMA MURTI, J    
30th  January 2015

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