APHC010337512009 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3560] THURSDAY, THE TWENTIETH DAY OF NOVEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CRIMINAL REVISION CASE NO: 2051/2009 Between: 1. YERRA GOWRI NAIDU, S/O.LATE PYDANNA, R/O. MALLUNAIDUPALEM, SABBAVARAM MANDAL, VISAKHAPATNAM DISTRICT. ...PETITIONER AND 1. THE STATE OF AP REP BY ITS PP HYD, rep. by its Public Prosecutor, High Court of A.P., at Hyderabad, through Harpour PS., Inspector of Police. ...RESPONDENT Revision filed under Section 397/401 of CrPC praying that in the circumstances stated in the affidavit filed in support of the Criminal Revision Case, the High Court may be pleased to set-aside the conviction and sentence recorded by the learned I Addl. Metropolitan Sessions Judge, Visakhapatnam in Crl.A.No. 4 of 2008 on 22-10-2009, thereby confirming the conviction and sentence recorded in CC.No. 237 of 2006, dt.20-12-2007 by the Chief Metropolitan Magistrate, Visakhpatnam District. IA NO: 1 OF 2009(CRLRCMP 2858 OF 2009 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to dispense with the certified copy of the proceedings in CC.No. 237 of 2006 dt, 20-12-2007 by the Chief Metropolitan Magistrate, Visakhapatnam. 2 IA NO: 2 OF 2009(CRLRCMP 2885 OF 2009 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to release the petitioner on bail by suspend the conviction and sentence recorded by the learned I Addl. Metropolitan Sessions Judge, Visakhapatnam in Crl.A.No. 4 of 2008 on 22-10-2009, thereby confirming the conviction and sentence recorded in CC.No. 237 of 2006, dt. 20-12-2007 by the Chief Metropolitan Magistrate, Visakhapatnam, pending disposal of the above Crl.R.C. Counsel for the Petitioner: 1. SUDHAKARA RAO AMBATI Counsel for the Respondent: 1. PUBLIC PROSECUTOR The Court made the following Order: 3 THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CRIMINAL REVISION CASE NO: 2051 OF 2009 ORDER: Being aggrieved by and dissatisfied with concurrent finding of the learned Courts below against the present petitioner, wherein he found guilty for the offences punishable under Sections 304-A and 338 IPC and sentenced to undergo simple imprisonment for a period of one year for the offence punishable under Section 304-A IPC and three months for the offence punishable under Section 338 IPC, the instant criminal revision case has been preferred. 2. Sole ground as alleged by the learned counsel for the petitioner before this revision Court is that there are contradictions between PW.1 and PW.3 in their evidences in respect of nature and factum of alleged incident. It is the submission of the learned counsel for the petitioner that PW.1 stated accident caused due to head on collusion between the offending lorry (driven by the petitioner) and one motorcycle (driven by deceased). He submits on the other hand PW.3 stated the offending lorry dashed motorcycle from rear side driven by the deceased. Such contradictions of facts are not properly explained by the prosecution through any of the evidences. He further argued that learned trial Court has not put any remarks in his judgment regarding such contradictions. But the learned appellate Court has observed contradictions but hold that presence of PW.1 and PW.3 in the place of occurrence has well established thus the prosecution case cannot be disbelieved. He further 4 submits that the learned trial Court has also failed to assess the ingredients of the offence punishable under Section 304-A of IPC and passed the order of conviction erroneously. It is further argument of the learned counsel for the petitioner that the order of conviction and sentence against the petitioner is improper and liable to be set aside. 3. Learned Assistant Public Prosecutor refuted the contention of the petitioner and submits that the evidence of PW.1 and PW.3 are not at all contradictory. The fact suggests that at the time of accident, the offending lorry as well as the motor cycle driven by the victim, while reached near convent junction circle, at that time the petitioner being a tipper lorry driver was not cautious but drove the vehicle in a rash and negligent manner with high speed and subsequently, the motorcycle which was also inside the convent junction circle, hit the deceased motorcycle rear part, resulting fatal injury to the deceased as well as the fracture injury on PW.1. He further submits that though the learned trial Court has not touched regarding the contradictions of evidence but the learned appellate Court in paragraph 14 has categorically observed the discrepancies and it is the view made by the learned appellate Court that such contradictions cannot itself discredit the testimony of any of the witnesses. 4. Learned Assistant Public Prosecutor, mostly relying upon the observation of the learned appellate Court, submits that it has been successfully proved by the prosecution before the trial Court that the accident occurred solely due to the rash and negligent driving of the driver of the 5 offending lorry. So there is no chance for the petitioner being the accused to exonerate from the offences. It is further submits that the conviction under Section 304-A and 338 IPC is justified. Thus, there is no merit in the criminal revision case. 5. Heard the learned counsel for the parties. 6. To justify the merit of this matter, let me set out the specific portion of the deposition of PW.1 and PW.3 as follows:- PW.1:- “I was the pillion rider. When we collected money from the subscribers and we started at Chavulamadhum at 2.30 p.m. to proceed to Arilova when we were coming towards circle meanwhile a lorry was coming from Scindia Bridge with a fast manner AP 31 Y 3439 and dashed our motor bike in opposite direction, the front portion, resulting we fell down and I sustained fracture on left leg whereas the deceased received head injury.” PW.3:- “At about 2.40 p.m. while I was on duty, I noticed one tipper coming from Gajuwaka towards Chavulamadhum and near Convent Junction. The tipper No.AP31Y2439. Meanwhile on motorcycle was coming from Chavulamadhum towards Kancharlapalem and reached round circle where I was posted to duty and noticed that the motorcyclist was moving and the lorry was coming behind the motorcyclist and dashed against the motorcycle on the right side front wheel direction.” 7. On plain perusal of the evidence on record of PW.1 and PW.3, it appears that PW.1 stated that the offending lorry dashed the motorcycle in opposite direction while PW.3 stated that motorcycle was hit by the lorry from behind. Learned trial Court has not observed nothing regarding the 6 contradictions but learned appellate Court has observed in paragraph 14 that though the evidences of PWs.1 and 3 are contradictory but such evidence cannot discredit the testimony. 8. For proper understanding regarding ingredients of the offence punishable under Section 304-A IPC, it is the duty of the prosecution to prove that the offender has caused death of a person by doing any rash and negligent act. In this case, rash and negligent act should be such a nature which itself contributes mensrea. The evidence of PW.2 is relevant in this matter. PW.2 deposed before the Court that at the time of accident, the offending lorry was running in a high speed in rash and negligent manner. 9. Evidence shows that the offending lorry as well as the motor cycle are in convent junction circle; to properly assess factum of accident, if we follow the evidence of PW.1, it can be assumed that when the lorry was moving in round inside the circle of convent junction, at that time the motorcycle was also moving opposite to the lorry but if we believe evidence of PW.3, it would be appeared that both the lorry as well as the motor cycle were moving in similar direction inside the convent junction circle. The evidence of PW.2 has stated about the rash and negligent driving of the driver of the tipper lorry but he did not state anything regarding the directions of two vehicles. The case of the prosecution i.e., dashing the motor cycle by the tipper lorry, the negligence on the part of the petitioner/accused has been sufficiently proved. But if we understand the evidence of PW.1, who is none but an ocular witness, being a pillion rider stated that the lorry was coming from the opposite direction, in that 7 way the accident occurred due to the negligence on the part of the both the drivers of the vehicles. In the case of collusion of two vehicles, the chance of contributory negligence cannot be ruled out. Moreover, the fact suggested that the accident happened at about 2.40 p.m. i.e., on bright day light, over a busy road both the drivers should have take proper caution about the incident. In my view learned trial Court as well as the learned appellate Court has not assessed the evidence of PW.1 properly and passed the order of conviction in the tune of the prosecution case. We cannot disbelieve the evidence of PW.1, who is nothing ocular witness, but also a pillion rider of the motor cycle, PW.1 stated that there was a head on collusion between the two vehicles, thus the contributory negligence cannot be ruled out. Learned appellate Court has observed that the evidences of PWs.1 and 3 cannot be discredited regarding their presence at the accident site. But the offence regarding factum of accident and proof of ingredients under Section 304-A IPC beyond reasonable doubt on a separate issue altogether. In my view, the prosecution case suggested the factum of accident on the other way which the PW.1 has deposed in this case. We cannot disbelieve the evidence of PW.1, thus there is a chance of contributory negligence, accordingly, the present accused/petitioner cannot be solely liable for rash and negligent driving. Thus the prosecution fails to prove the case against the present petitioner under Section 304-A IPC beyond all reasonable doubt. 10. Under the overall reading I find recording the conviction and sentence against the present petitioner, appears to me improper and illegal, thus, the 8 order of conviction and sentence recorded by the learned Magistrate and confirmed by the learned appellate Court is hereby set aside. 11. The accused/petitioner be acquitted from the case. The sureties stands in favour of the petitioner are also discharged. 12. Consequently, the instant Criminal Revision Case appears to me meritorious and the same is allowed. There shall be no order as to costs. As a sequel, pending miscellaneous applications, if any, shall stand disposed of. ____________________________ JUSTICE SUBHENDU SAMANTA Date: 20.11.2025 SPP 9 THE HON’BLE SRI JUSTICE SUBHENDU SAMANTA CRIMINAL REVISION CASE No.2051 of 2009 20.11.2025 SPP