* THE HONOURABLE SRI JUSTICE B.CHANDRA KUMAR + CRIMINAL REVISION CASE No.1816 of 2004 % Dated 01.07.2010 # K.Rajaiah S/o. K.Baskar Rao, aged 33 years, R/o. Varni …Petition V. $ The State of A.P. Rep by Public Prosecutor …Responde ! Counsel for the petitioner: C.Praveen Kumar, Advocate ^ Counsel for the Respondent: Public Prosecutor < Gist : > Head Note: ? Cases Referred: 1. 2006 Crl.L.J.824 2. AIR 2004 SC 2775 3. 2003 Crl.L.J. 2548 4. AIR 1958 SC 350 5. 2002 (2) ALT (Crl.) 4 (A.P.) 6. 2008 (3) ALT (Crl.) 1 (DB)(A.P.) 7. (2007) 1 CAL.L.T. 192 HC THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL REVISION CASE No.1816 of 2004 Dated:- 01ST July, 2010 Between:- K.Rajaiah …Petitioner AND The State of A.P. …Respondent THE HON'BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL REVISION CASE No.1816 of 2004 ORDER: 1. This Criminal Revision is directed against the judgment in Criminal Appeal No.17 of 2004 dated 15.10.2004 passed by the VII Additional Sessions Judge (Fast track Court), Nizamabad at Bodhan, whereby and whereunder the learned Assistant Sessions Judge confirmed the judgment dated 10.03.2004 passed in C.C.No.457 of 2002 by the Judicial Magistrate of the First Class, Bodhan, convicting the petitioner herein for the offence punishable under Section 304-A, 337 IPC but sentencing him only for the first offence to suffer Rigorous Imprisonment for one year and to pay fine of Rs.3,000/- and in default, to suffer Simple Imprisonment for three months. The petitioner herein will be referred to as accused for the sake of convenience. 2. The prosecution case, in brief, is as follows: The accused was driving APSRTC bus bearing registration No.AP 10 Z 3008 from Banswada side to Nizamabad on 13.08.2002 at about 08:25 A.M. At that time, one Bhukya Rajesh @ Katroth Rajesh (hereinafter referred to as the deceased) and one Kunsoth Rajesh (P.W.7) were going to Bharath Vidyaniketan School at Mosra village on a cycle. Kunsoth Rajesh was the pillion rider and the deceased was pedaling the cycle. It is alleged that the accused had driven the bus in rash and negligent manner and dashed against the cycle as a result of which, both the boys on the cycle sustained injuries and while they were on the midway to hospital, Bhukya Rajesh succumbed to the injuries. The father of the deceased – Bhukya Mohan, after coming to know about the death of his son in the accident, lodged complaint in Ex.P.1 basing upon which, P.W.8 – Sub-Inspector of Police, Varsi, registered a case. The Sub-Inspector had also visited the scene of offence, examined the material witnesses, conducted inquest over the dead body of the deceased in the presence of mediators, drawn a rough sketch of the scene of offence in Ex.P.5 and after obtaining reports from the Motor Vehicle Inspector and Postmortem Certificate, filed charge sheet. 3. Since the accused denied the charges levelled against him, the prosecution, in order to prove its case, examined P.Ws.1 to 5 and marked Exs.P.1 to P.11. None were examined on behalf of the accused and no documents were marked. 4. Since the father of the deceased who lodged the complaint died, his wife – Bukya Santha examined herself as P.W.1. P.W.2 – Bukya Muni is the elder brother of the father of the deceased. He was examined for the purpose of identifying the signatures of his brother in Ex.P.1. P.W.3 – Banoth Barath is aged about 12 years when he was examined by the Court on 06.11.2003. He deposed that the deceased is his cousin and that on the date of accident, at about 08:30 A.M., he and another boy were going to school on his cycle while the deceased and another – Kunsoth Rajesh were ahead of them on another cycle. According to him, when they reached near the school at Mosra village, an APSRTC bus came at high speed from Banswada side and dashed against the cycle on which the deceased was travelling and that the accused is the driver of the said bus. P.W.4 – Banoth Daramsingh is the classmate of the deceased. He was aged about 15 years at the date of his examination. According to him, the accused had driven the bus in a high speed and dashed against the cycle on which the deceased was travelling and that after the incident, the accused stopped the bus at a distance and came to the place where the injured was lying, observed the injured and proclaimed that the injured would not die and then went on a scooter. P.W.5 – Bojja Sayagoud and P.W.6 – Dr.Basa Rajkumar whom the prosecution cited as an eye-witnesses to the accident, turned hostile and did not support the case of the prosecution. P.W.7 – Kunsoth Rajesh deposed that he was a pillion rider of the cycle of the deceased. According to him, at about 08:30 A.M., when they reached the school at Mosra village, an APSRTC bus, being driven by the accused, came at a high speed and dashed against their cycle as a result of which, the deceased and himself sustained injuries. It is also his case that immediately after the incident, he fell unconscious at about 10:30 A.M. and gained conscious only in the hospital. P.W.8 – B.Balaji is the Sub-Inspector of police who investigated the case and filed charge sheet. 5. The trial Court, believing the prosecution evidence, convicted the accused and the same has been confirmed by the lower appellate Court challenging which, the present revision has been filed. 6. Smt. Vasundhara Reddy, learned counsel representing Sri C.Praveen Kumar Reddy, learned counsel for the petitioner submitted that the Investigating Officer neither seized any documents nor examined the Depot Manager or Traffic Controller, APSRTC, to establish that the accused was driving the bus which involved in the accident at the relevant time. Her specific submission is that it was obligatory on the part of the Investigating Officer to seize the Trip Sheet, Statistical Record, or to examine any other witness who had acquaintance with the accused to prove that the accused had driven the bus at the relevant point of time. Her main submission is that though P.Ws.3 and 4 claims to have identified the accused as the driver of the bus involved in the accident, admittedly, they had no prior acquaintance with the accused and that no Test Identification Parade has been conducted. It is also her submission that mere driving of the bus at a high speed will not constitute offence punishable under Sections 304-A, 337, 338 IPC, but the prosecution must prove that the accused had driven the bus in a rash and negligent manner. It is also her submission that the road was under upgradation at the place of accident and there was no possibility for the accused to drive the bus at a high speed and in a rash and negligent manner. It is also her submission that the mediators who were present at the time of preparation of scene of offence – Panchanama and drawing of rough sketch, have not been examined. It is also her submission that though there is evidence of Investigating Officer with regard to the scene of offence, the evidence of panch witnesses is necessary. 7. It is also submitted by her that the evidence of P.W.7 cannot be believed because, admittedly, P.W.7 became unconscious immediately after the occurrence of accident and that he did not state before the police that he could identify the driver of the bus. It is also her submission that when P.W.7 categorically admitted that he ha not seen the accused at the time of accident, his evidence is not helpful to the prosecution. It is also her submission that P.W.4 has given different versions and his version before the Court that the accused after stopping the bus came to the place of accident and observed the injured and proclaimed that the injured would not die and then went on a scooter, was not stated by him before the police. Admittedly, P.W.4 also did not see the accused prior to the accident. Therefore, the improved version of P.W.4 cannot be accepted. With regard to the evidence of P.W.3, learned counsel submitted that P.W.3 is a child witness and that the accident occurred on 13.08.2002 whereas P.W.3 was examined on 06.11.2003 and that he was aged between 10 to 11 years at the date of accident and as such, he is a child witness. It is also her submission that normally, child witness can be easily influenced and tutored and, therefore, no conviction can be placed basing on the evidence of child witness unless and until such evidence is corroborated by any other evidence of an independent witness. It is also her submission that according to P.W.3, he has seen the accused from a distance of 10 to 20 yards while running away after getting down from the bus towards Nizamabad side and that he has not given the descriptive features of the accused to the police when he was examined and if these two circumstances were considered, it is clear that P.W.3 also did not see the accused at the time of accident and his evidence cannot be relied upon. Learned counsel, in support of her contentions, relied upon a case between Suruvu Parshaiah Vs. State of A.P.[1]. 8. Per contra, learned Additional Public Prosecutor representing the state vehemently argued that there cannot be re-appreciation of evidence and that admitted facts need not be proved. According to him, the counsel for the accused in the trial Court reported no objection for marking the inquest report, Postmortem Certificate, scene of offence – Panchanama, Wound Certificate and Motor Vehicle Inspector’s report and since the documents have been marked under Section 294 Cr.P.C., the accused now cannot dispute the contents of those documents. His main submission is that once the document has been admitted, it need not be proved. It is also his submission that P.Ws.3 and 4 are the eye-witnesses to the accident and that P.W.3 was on the same cycle which was being pedaled by the deceased and that P.W.3 was injured and that P.W.4 was also following on another cycle behind the cycle on which the deceased was travelling and that they are truthful witness and their evidence is reliable and merely because P.W.3 is a child witness, his evidence cannot be brushed aside and thrown away. It is also his submission that if once the eye- witness had ample opportunity to see the accused at the scene of offence and when they have identified the accused before the Court, there is no need to hold Test Identification Parade. In support of his submissions, he has relied upon the judgments in cases between Simon Vs. State of Karnataka[2], Visweswaran Vs. State rep. by SDM[3] and Kanta Prashad v. Delhi Administration [4]. 9. Having considered the above rival contentions, the points that arise for consideration in this revision is (1) whether there is any need to hold Test Identification Parade in the circumstances of the case; (2) whether the prosecution had proved the documents which have been marked by the concerned; and (3) whether the evidence of P.Ws.3, 4 and 7 can be relied upon for convicting the accused. POINT No.1 10. Learned Additional Public Prosecutor, in support of his contentions, relied on Visweswaran supra. In that case, the Apex Court observed as follows: “The identification of the accused either in test identification parade or in Court is not a sine qua non in every case if from the circumstances the guilt is otherwise established. Many a times, crimes are committed under cover of darkness when none is able to identify the accused. The commission of crime can be proved also by circumstantial evidence. In the present case, there are clinching circumstances unerringly pointing out the accusing finger towards the appellant beyond any reasonably doubt. However, the Apex Court observed that it is unfortunate that despite the aforesaid facts, the test identification parade was not held.” 11. Basing on the other circumstantial evidence, the Hon’ble Supreme Court upheld the conviction in that case. Para 12 of the judgment is relevant and may be useful for who deal with the criminal cases in appreciating the evidence. It reads as follows: “12. Before we notice the circumstances proving the case against the appellant and establishing his identity beyond reasonable doubt, it has to be borne in mind that approach required to be adopted by courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity, courts have to show greater responsibility when trying an accused on charge of rape. In such cases, the broader probabilities are required to be examined and the courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by Courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved.” 12. Learned Additional Public Prosecutor also relied o n Kantha Prashad supra. In that case, holding that the appellants were known to the police officials who had deposed against the appellants, the Apex Court upheld the conviction. However, the Apex Court observed as follows: “It would no doubt have been prudent to hold a test identification parade with respect to witnesses who did not know the accused before the occurrence, but failure to hold such a parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification would be a matter for the courts of fact and it is not for this Court to reassess the evidence unless exceptional grounds were established necessitating such a course.” 13. Learned Additional Public Prosecutor had also relied on Simon supra. In that case, the Apex Court observed as follows: “Whether the identification of an accused for the first time in Court in absence of any test identification parade can be made the basis of the conviction depends upon the facts and circumstances of the case. No hard and fast rule can be laid down.” 14. It was further observed as follows: “We have no difficulty in accepting the contention that evidence of mere identification of an accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of prior test identification is to test and strengthen the trustworthiness of that evidence. Courts generally look for corroboration of the sole testimony of the witnesses in Court so as to fix the identity of the accused who are strangers to them in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. It has also to be borne in mind that the aspect of identification parade belongs to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. Mere failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. What weight is to be attached to such identification is a matter for the Courts of fact to examine. In appropriate cases, it may accept the evidence of identification even without insisting on corroboration.” 15. The Apex Court also observed as follows: “With reference to PWs-63, 65 and 66 and other similar witnesses who have deposed to have seen the appellants at the place of occurrence, it was contended that basically the principles that the accused were unknown to these witnesses shall apply and not that they had known and seen the accused at the place of occurrence.” 16. It was further held as follows: “We have no hesitation in accepting the contention that if the conviction was based on the testimony of PWs-63, 65 and 66 and other such witnesses who saw the accused for the first time on date of occurrence, it would have required corroboration” 17. The Hon’ble Supreme Court, in the above referred case, had relied upon the evidence of P.W.97 who had seen the accused persons on earlier occasions as well whereas in the present case, conviction of the appellant is not based on the testimony of any witnesses but is based only on the testimony of P.W.7, who had categorically deposed that he had seen the accused on earlier occasion as well. 18. The Hon’ble Supreme Court, while discussing the judgments in case between State of Maharashtra through CBI v. Sukhdev Singh alias Sukha (AIR (1992) 3 SCC 700), observed as follows: “it would be extremely risky to place implicit reliance on identification made for the first time in Court after a long lapse of time. But it has to be kept in mind that this principle will apply to case of total strangers” 18. Thus, in the above referred cases, the Hon’ble Supreme Court has categorically held that by the very nature, the Test Identification Parade of the accused for the first time in Court is a weak piece of evidence and cannot be made as basis for conviction wherein the case the witnesses are total strangers to the accused. 19. Each case has to be decided on its own facts and circumstances. For example, in case where the accused has committed rape on a victim and where the victim had ample opportunity to observe the accused closely, there are circumstances that even without holding Test Identification Parade, the evidence of such witness, if inspiring confidence, can be relied upon. For example, in a case of dacoity, robbery or in case of a murder, where the witnesses had ample opportunity to observe the physical features of the accused and where there was sufficient light, the evidence of such witnesses can be relied upon. What is to be seen is whether the witnesses had an ample opportunity to get the impressions of the accused imprinted in their mind. Wherein a case there was no opportunity for the witnesses to see the accused and he had only the opportunity of getting a fleeting glimpse of the accused from a distance and that too when the accused was running away, then it may be difficult to accept the evidence of such a witness. What is to be seen is whether the witnesses had given descriptive particulars of the accused in their earlier statements before the police. Whether they had stated in their earlier statements under all the circumstances they were able to identify the accused and from the record if it appears that the witnesses had categorically stated on the earlier occasion before the police that they can identify the accused and as a mark of guarantee if they had narrated the physical features of accused to the police in their statements, then if the witness identify the accused, may be for the first time in Court, the Court may be justified in accepting the evidence of such witness. Therefore, what is required is that the Court has to consider the facts and circumstances of each case separately and should come to definite conclusion whether the witness had an ample opportunity to see the physical features of the accused or not. 20. It is settled legal position that if the accused is already known to the identified witnesses, there is no need to hold Test Identification Parade. The evidence of witnesses also looses importance if the accused have already been shown to the witnesses before their examination in the Court. It is also settled legal position that the Test Identification Parade should be held at the earliest possible opportunity. POINT No.2 21. Now, let us see whether the contents of the documents, i.e., scene of observation – Panchanama, Rough Sketch of scene of offence, Motor Vehicle Inspector’s report etc., are dependable or not. 22. Learned counsel for the petitioner had relied upon the judgment of this Court in Suruvu Parshaiah supra in which, it was held that “the inference drawn by the trial Court basing on the damage to the jeep is not sound and correct.” In that case, Ex.P.20 is the observation panchanama. Relevant observations of this Court in that case are as follows: “Obviously the trial Court appears to have perused the contents of the scene of offence panchnama Ex. P-20 to come to the conclusion that the bus went to the right side of the road and hit the jeep. The contents of panchanama Ex. P-20 are not proved. The trial Court failed to realize that the scene of offence panchanama is not substantive evidence and without there being evidence in Court the contents of panchanama cannot be relied upon and that the contents can be used only to corroborate the oral testimony given in the Court.” 23. In that case, the only panch witnesses examined did not state anything about the scene of offence panchanama. Even the Investigating Officer did not speak about the contents of scene of offence panchanama in Ex.P.19. He did not state anything except saying that he prepared the panchanama. In the above circumstances, it was observed that “it is not at all open for the trial Court to peruse the contents of observation panchanama and to take the contents of panchanama as corroboration to the oral testimony”. 24. Learned counsel representing the petitioner submitted that mere marking of panchanama is not sufficient and the contents of panchanama are to be brought on record through the mediators or through the Investigating Officer and in the absence of any oral evidence with regard to the contents of panchanama and scene of observation Mahazar etc., no reliance can be placed on the contents of the said documents. 25. It is true that in the above referred decision, this Court held that mere marking of panchanama is not sufficient and the contents of panchanama shall be spoken to by the witnesses in the presence of accused to enable him to be cross-examined and then only the Court can place reliance on the contents of panchanama. 26. Learned Additional Public Prosecutor submitted that as far as the facts of the present case are concerned, the documents have been admitted by the accused as the counsel for the accused in the trial Court reported no objection for marking those documents as a result of which, the documents were marked by the concerned. In the above circumstances, no formal proof of such documents is required under Section 294 of Criminal Procedure Code, 1973. 27. Section 294 of Criminal Procedure Code, 1973, reads as follows:- 294. No formal proof of certain documents: (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document. (2) The list of documents shall be in such form as may be prescribed by the State Government. (3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed: Provided that the Court may, in its discretion, require such signature to be proved. 28.