Palisetti Satyanarayana, Visakhapatnam. Vs the State of a.P., Rep. by P.P., Hyderabad.

The Revision has been preferred under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C’) challenging the judgment dated 29.06.2010 in Criminal Appeal No.65 of 2007 on the file of the learned I Additional District and Sessions Judge, Vizianagaram, whereby and whereunder the conviction imposed by the learned Additional Judicial Magistrate of First Class, Vizianagaram in C.C.No.142 of 2005 dated 13.03.2007 for the offences under Sections 304-A, 338 and 337 of Indian

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Penal Code, 1860 (for short ‘the I.P.C’) was confirmed, but the sentence of Rigorous Imprisonment for six months for the offence under Section 304-A of ‘the I.P.C.’ was modified and reduced into Rigorous Imprisonment for three months; the sentence of Rigorous Imprisonment for six months for the offence under Section 338 of ‘the I.P.C’, was modified and reduced to Rigorous Imprisonment for three months.

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I have heard the arguments of learned counsel for the revisionist and the learned Assistant Public Prosecutor appearing for respondent.

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Ms. V.Kranthi, learned counsel, representing Sri S.V.S.S.Sivaram, learned counsel for the petitioner/revisionist reiterated the grounds of the revision and submitted that the petitioner had not caused the accident rash or negligently; P.W.1 had not identified the petitioner with physical features and no Identification Parade was conducted to the petitioner; P.W.1 did not give the descriptive particulars of the petitioner in the F.I.R and no document was filed to that effect. P.W.6 being eye witness had not deposed the manner of the accident and the learned Trial Court and the Appellate Court failed to consider the evidence of P.W.3 and thus grossly committed illegality in convicting the petitioner. Alternatively, it is submitted that the petitioner has been suffering from cancer; he has been under constant medical supervision; he is undergoing Chemotheraphy; he is aged about 60 years. The alleged occurrence happened in the year 2004, nearly 21 years have passed by; the petitioner was in prison for 14 days either as convict prisoner or undertrial

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prisoner; the right to speedy Trial, Disposal of the appeal and revision are fundamental rights of the petitioner which are violated; the petitioner has been suffering from mental agony, therefore, lenience may be shown towards the petitioner and urged to allow the revision either on the merits or reduced the sentence of imprisonment which the petitioner had already undergone.

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Per contra , Ms.Akhila Naidu, learned Assistant Public Prosecutor argued that the prosecution had successfully proven the guilt of the accused/petitioner beyond reasonable doubt by examining P.W.1 to P.W.14 and got marked Exs.P1 to P17. She further argued that in the revision filed under Sections 397 and 401 of ‘the Cr.P.C.’, re-appreciation of evidence is not permissible, there are no material irregularities or error apparent on the face of the record. Hence, prayed to dismiss the revision.

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Thoughtful consideration is bestowed on the arguments advanced by the learned counsels by both sides. I have perused the material on record.

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Now the point for consideration is:

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Whether the judgment in Crl.A.No.65 of 2007 dated 29.06.2010, passed by the learned I Additional District and Sessions Judge, Vizianagaram, is correct, legal, and proper with respect to its finding, sentence, or judgment, and there are any material irregularities? And to what relief?

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It is apposite to refer the Hon’ble Apex Court in Bindeshwari Prasad Singh v State of Bihar¹ , wherein at Paragraph Nos.12 & 13 it is held as under:

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“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 one 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 by 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 correction 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.

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... 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 interfere 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

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1 (2002) 6 SCC 650

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miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted.”

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8. The Hon’ble Supreme Court in D.Stephens v Nosibolla² at Paragraph

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No.10 held as under:

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“The revisional jurisdiction conferred on the High Court under Section 439, Cr.P.C., is not to be lightly exercised, when it is invoked by a private complainant against an order of acquittal, against which the Government has no right of appeal under Section 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or misappreciated the evidence on record.”

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9. The Hon’ble Apex Court in K Chinnaswamy Reddy v State of A.P³ , at

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Paragraph No.7 held as under:

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“7. It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Subsection (4) of S. 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not, convert the finding of acquittal into one of conviction by the indirect method of ordering retrial when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be

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2 AIR 1951 SC 196

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3 AIR 1962 SC 1788

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exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may, however, indicate some cases of this kind which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of Section 439 (4). We have, therefore, to see whether the order of the High Court setting aside the order of acquittal in this case can be upheld on these principles.”

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P.W.1 testified that on 04.09.2004 P.W.1 and the deceased Chintapalli

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Appala Naidu were travelling in the van bearing No.AP 31W 9710; when the van reached near Pusapatirega Police Station, the driver of the van drove it in a rash and negligent manner while overtaking another lorry which was going ahead to the van and dashed against an RTC bus, which was coming from the opposite direction; consequently P.W.1, P.W.3/cleaner of the van and the deceased Appala Naidu sustained injuries, Appala Naidu died while undergoing treatment in K.G.Hospital, Visakhapatnam. The evidence of P.W.13 established that the deceased suffered injuries because of shock and internal hemorrhage. P.W.2, the son of the deceased deposed that his father died in the accident. The evidence of P.W.11 clinchingly proved that P.W.1

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sustained grievous injuries and P.W.3 sustained simple injuries vide Ex.P9 and Ex.P10 Wound Certificates. P.W.8 Motor Vehicle Inspector testified that the accident occurred not because of any mechanical defect vide Ex.P3 M.V.I. Report. P.W.1, P.W.3, P.W.6 and P.W.7 testified that the accident occurred because of the rash and negligent driving of the petitioner.

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P.W.1 being the co-passenger, supported the case of the prosecution. When the co-passenger, who suffered injuries in the accident, testified that the petitioner drove the van rashly and negligently, there is no need to conduct Test Identification Parade of the accused or giving any descriptive particulars about the physical features or otherwise of the accused. The petitioner being the van driver was not supposed to overtake a lorry which was going in front of him while an R.T.C. bus which was coming opposite direction; he must have been vigilant while driving the van.

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The evidence of the prosecution witnesses clearly shows that the petitioner drove the van rash and negligently and caused the death of the deceased and grievous and simple injuries to the witnesses. There are no grounds in the revision case to consider positively. There are no material irregularities in conducting the trial. There was no error apparent on the face

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of record either on law or procedure. There was no mis-reading of the evidence either by the learned trial Court or by the learned Appellate Court, which have properly appreciated the facts of the case and came to correct conclusions. Therefore, the conviction for the offences under Sections 304-A,

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338 and 337 of ‘the I.P.C.’, shall be maintained inasmuch as this Court cannot be a second Appellate Court to re-appraise the evidence of the prosecution witnesses as laid down by the judgment in Bindeshwari Prasad Singh, D Stephens and K.Chinnaswamy Reddy and other judgments.

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However, coming to the quantum of sentence considered and reduced by the learned Appellate Court, it is submitted that the petitioner has been suffering from cancer and he has been undergoing Chemotheraphy treatment. The record reveals that the petitioner is aged about more than 60 years. The learned counsel for the petitioner has submitted the medical record of the petitioner which certifies that the petitioner has been suffering from cancer and undergoing Chemotheraphy. He needs to be under constant supervision of the doctors. The accident occurred in the year 2004. Nearly 21 years have passed by. It is submitted that the petitioner was blessed with three daughters and one daughter is for marriage. Record further reveals that the petitioner suffered imprisonment for a period of 14 days. The right to speedy trial is a fundamental right as per the judgment of the Hon’ble Supreme Court in Hussainara Khatoon (IV) v. Home Secretary State of Bihar⁴ . This right includes speedy disposal of appeals. In addition to the appeals, the right to a speedy trial also includes criminal revisions as per the decision of the Hon’ble Apex Court in Rajdeo Sharma v. State of Bihar⁵ . The Supreme Cout held that the revisionist is also entitled for speedy trial.

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4 AIR 1979 SC 1360

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5 (1999) 7 SCC 604

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The petitioner undoubtedly has suffered mental agony of delayed disposal of the revision. The revision was of the year 2010. In view of the obtaining peculiar facts and circumstances of the case, the revision is disposed of while maintaining the conviction recorded by the learned Appellate Court, but reducing the sentence of imprisonment to which the petitioner had already undergone.

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