APHC010647982010 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3521] THURSDAY,THE THIRD DAY OF JULY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL REVISION CASE NO: 2204/2010 Between: GUBBALA NAGESH, E.G.DISTRICT, S/O. VENKATA RAMANA @ VENKATA RAO R/O. VENTURU VILLAGE, RAYAVARAM MANDAL, EAST GODAVARI DISTRICT. ...PETITIONER AND THE STATE THROUGH SHO PS KARAPA REP BY PP HIGH COURT HYD, through S.H.O., P.S., Karapa, Rep. by its Public Prosecutor, High Court of A.P.,Hyderabad. ...RESPONDENT Counsel for the Petitioner: N RAVI PRASAD Counsel for the Respondent: PUBLIC PROSECUTOR The Court made the following: ORDER: The Criminal Revision Case has been preferred under Sections 397 and 401 of Code of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C’) 2 Dr. YLR, J Crl.R.C.No.2204 of 2010 Dated 03.07.2025 challenging the judgment dated 15.11.2010 in Crl.A.No.360 of 2008 on the file of the learned III Additional District and Sessions Judge, Kakinada, East Godavari District, confirming the conviction for the offences punishable under Sections 304-A and 337 of the Indian Penal Code, 1860 (for short ‘the I.P.C’), but modifying the sentence of imprisonment from six (06) months to three (03) months. The learned IV Additional Judicial Magistrate of First Class, Kakinada, passed the judgment on 27.11.2008 in C.C.No.450 of 2006 convicting the petitioner for the offences under Sections 304-A of ‘the IPC’, and sentenced him to undergo Rigorous Imprisonment for six (06) months. 2. Mr. N. Ravi Prasad, the learned counsel for the petitioner, while reiterating the grounds of the revision, argued that there was no rash and negligent driving on the part of the petitioner, who was driving the auto. The prosecution, even though, failed to prove the guilt of the petitioner. The learned trial Court erroneously convicted and sentenced him and the said judgment was mechanically confirmed by the learned Appellate Court. 3. It is further argued that a lorry going in front of the auto suddenly took into left side; to save the lives of the passengers in the auto, the petitioner has taken the auto to left side. This fact was not appreciated by the learned Courts below. Even though P.Ws.2 and 5 have not supported the case of 3 Dr. YLR, J Crl.R.C.No.2204 of 2010 Dated 03.07.2025 the prosecution, this fact was ignored, and P.Ws.4 and 7 were planted witnesses and urged to allow the Criminal Revision Case. 4. Alternatively, it is submitted that the petitioner has been suffering from severe paralysis, aged about 50 years, and is unable to move; he has a wife and two children, is poor, and not doing any avocation, subsisting on the earnings of his wife and minor children. The petitioner had already undergone 40 days in jail, and it is urged to sentence the petitioner to which he had already undergone, as the fine of Rs.200/- has already been paid. 5. Mr. P. Sandeep, the learned Assistant Public Prosecutor, vehemently argued that there are no merits in the Criminal Revision Case, inasmuch as the evidence of the prosecution cannot be appreciated at this juncture while invoking the powers under Sections 397 and 401 of ‘the Cr.P.C’. The prosecution was able to prove the guilt of the petitioner beyond reasonable doubt. There was an eyewitness to the accident, who had also identified the petitioner as the person driving the vehicle, and it was urged to dismiss the Criminal Revision Case. It is further submitted that the petitioner was in incarceration for a period of 40 days and that there are no adverse antecedents against him. 4 Dr. YLR, J Crl.R.C.No.2204 of 2010 Dated 03.07.2025 6. Thoughtful consideration is bestowed on the arguments advanced by the learned counsel for the Petitioner and the learned Assistant Public Prosecutor. I have perused the record. 7. Now the point for consideration is: “Whether the judgment in Crl.A.No.360 of 2008, dated 15.11.2010, passed by the learned III Additional District and Sessions Judge, Kakinada, are correct, legal, and proper with respect to its finding, sentence, or judgment, and there are any material irregularities? And to what relief?” 8. The prosecution had examined P.Ws.1 to 16, and got marked Exs.P-1 to 15. Indeed, appreciation of the evidence at this juncture invoking the powers under Section 397 and 401 of ‘the Cr.P.C.,’ is not feasible, as this Court cannot sit like a Second Appellate Court for re- appreciation of the evidence. The learned Appellate Court and also the learned Trial Court firmly believed that the petitioner drove the vehicle in a rash and negligent manner and caused the accident and caused the death of two persons. Hence, the conviction for the offence under Section 304-A and 337 of ‘the IPC.,’ shall be maintained. 9. In Ismail v. Police Sub Inspector, Hospet1, 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, 1 2013 (1) RCR (Criminal) 826 5 Dr. YLR, J Crl.R.C.No.2204 of 2010 Dated 03.07.2025 the sentence to undergo 15 days imprisonment already suffered by Ismail was held to be the proper sentence. 10. In this regard it is apposite to refer to the decision of the Apex Court in Central Bureau of Investigation v. Sanjiv Bhalla2 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 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." 11. In State of A.P v. Rajagopal Rao3, 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. 12. In State of Punjab v. Saurabh Bakshi4, the Supreme Court set aside the reduced sentence imposed by the High Court and held that the 2 (2015) 13 SCC 444 3 (2000) 10 SCC 338 4 (2015) 5 SCC 182 6 Dr. YLR, J Crl.R.C.No.2204 of 2010 Dated 03.07.2025 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. 13. In fact, as seen from the record, the petitioner was arrested on 05.06.2006; he was enlarged on bail by the learned Trial Court on 15.06.2006, nearly about 10 days he was in jail during the pre-trial stage. The petitioner was convicted by the learned Trial Court on 27.11.2008, he preferred appeal before the learned Appellate Court on 16.12.2008, and he was enlarged on bail by the learned Appellate Court during the pendency of the appeal on 22.12.2008. The learned Appellate Court passed the judgment on 15.11.2010. 14. This Court enlarged the petitioner on bail vide order dated 29.11.2010 in this Criminal Revision Case. Altogether the petitioner was in incarceration for a period of 40 days in jail. The petitioner is aged about 50 years; the accident occurred about 19 years ago. The petitioner has been suffering from severe paralysis unable to move. The learned counsel for the petitioner submits the petitioner was brought by his wife and children as he was unable to move. The petitioner was doing coolie work after the accident. 15. As seen from the record, the petitioner has paid an amount of Rs.200/- at the time of preferring the appeal. Considering the entire gamut 7 Dr. YLR, J Crl.R.C.No.2204 of 2010 Dated 03.07.2025 of the case it would appropriate to sentence the petitioner to which he has already undergone. 16. In the result, the Criminal Revision Case is disposed of confirming the conviction for the offences punishable under Sections 304-A and 337 of ‘the IPC', sentencing the petitioner to which he had already undergone, No order as to costs. As a sequel, Miscellaneous petitions, if any pending, shall stand closed. _________________________ DR. Y. LAKSHMANA RAO, J Date: 03.07.2025 RSI 8 Dr. YLR, J Crl.R.C.No.2204 of 2010 Dated 03.07.2025 77 THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL REVISION CASE No.2204 of 2010 Date:03.07.2025 RSI