IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: HYDERABAD FRIDAY, THE TWENTY FOURTH DAY OF JUNE TWO THOUSAND AND TEN PRESENT: HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.1275 OF 2004 BETWEEN: Shaik Masthan S/o. Mowla Saheb …. Petitioner AND State of Andhra Pradesh, Rep. by Public Prosecutor, High Court of A.P., Hyderabad. …. Respondent HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.1275 OF 2004 ORDER: This Criminal Revision Case, under Sections 397 & 401 of the Criminal Procedure Code, 1973 (for short ‘Cr.P.C.’), is filed by the petitioner – accused against the judgment dated 29-07-2004 in Criminal Appeal No.163 of 2001 passed by the learned VI Additional District and Sessions Judge, Ongole, Prakasam District, whereunder and whereby, the conviction and sentence against the petitioner under Sections 304-A and 134 (a) & (b) read with 187 of the Motor Vehicles Act (for short ‘MV Act’) was confirmed. 2. The brief facts that are necessary for disposal of the revision case may be stated as follows: One Venkata Laxamamma (hereinafter referred to as ‘the deceased’) was going on the left side of the road on 09-05-1998 at about 6-30 P.M., the crime lorry driven by the petitioner-accused came from behind and dashed against her, as a result, she fell down and sustained injuries. She was taken to hospital but, on the way, she died. PWs.1 to 3 are the eyewitnesses to the accident. Basing on the statement given by PW-3, the police registered a case, observed the scene of occurrence, prepared Ex.P-2 report, held inquest on the dead body of the deceased and thereafter sent the body to postmortem. The crime lorry was inspected by the Motor Vehicle Inspector and he opined that there are no mechanical defects in the vehicle. After completion of the investigation, police filed the charge sheet against the petitioner for the offences punishable under Sections 304-A IPC and 134 (a) & (b) of the Motor Vehicles Act (for short ‘M.V. Act’). 3. After furnishing copies of the documents, when the petitioner was examined under Section 251 Cr.P.C., he denied the offence, pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined PWs.1 to 8 and got marked Exs.P-1 to P-8. On behalf of the defence, none were examined and no documents were marked. 5. The trial Court after considering the evidence and material available on record, found the accused guilty and accordingly convicted and sentenced him to undergo rigorous imprisonment for six months and also to pay a fine of Rs.200/-, in default to undergo simple imprisonment for one month for the offence punishable under Section 304-A IPC, and also convicted and sentenced him to pay a fine of Rs.100/-, in default to undergo simple imprisonment for one month for the offence punishable under Section 134 (a) & (b) read with 187 of the MV Act. On appeal, the appellate Court confirmed the convictions and sentences recorded against the accused. Challenging the same, this revision is filed. 6. The learned counsel for the petitioner – accused contends that PWs.1 and 2, who were said to be present at the time of the accident, did not identify the driver of the crime lorry, that the only evidence available on record is, the evidence of PW-3, who identified the petitioner for the first time in the Court after lapse of one year and therefore it cannot be accepted in the absence of test identification parade and hence, he prays to set aside the convictions and sentences recorded against the petitioner. 7. On the other hand, learned counsel representing the learned Public Prosecutor contends that the concurrent findings of the two Courts below need not be interfered with as there are no illegal findings, that as the driver of the lorry after stopping the vehicle got down from it, the physical features of the driver must have been imprinted in the mind of PW-3, that therefore, identification of the accused by PW-3 for the first time in the Court, cannot be said to be improper or unnatural and hence, she prays for dismissal of the revision. 8. Now the point for determination is whether the findings of both the Courts below are correct, legal and proper ? 9. There cannot be any dispute that revisional powers of this Court under Sections 397 and 401 IPC are truncated. Unless it is shown that any one of the findings of the trial Court or appellate Court is perverse or not based upon any evidence or inadmissible evidence has been taken into consideration or admissible evidence is overlooked, ordinarily, this Court will not interfere with the concurrent findings of the Courts below. 10. The occurrence of the accident is not in dispute. The accident was not caused due to any mechanical defects of the vehicle because in Ex.P-8 report of the Motor Vehicle Inspector, it is clear that the accident was not caused due to any mechanical defects. Similarly, PW-5 doctor, who conducted postmortem on the dead body of the deceased, opined in Ex.P-4 postmortem certificate that the deceased died due to injuries. The evidence of PWs.1 to 3 is very clear that when the deceased was walking on the extreme left side margin of the road at the time of accident, the lorry came behind and dashed the person who was walking on the left side of the road by observing rules of the road. If any vehicle dashes to a person, who was walking by observing rules of the road, in such circumstances, dashing by itself is rashness or negligence. Rashness does not consist of high speed but consists of not taking proper care and caution in driving the vehicle and not following the rules of the road safety. Negligence, on the other hand, is a gross culpable neglect or failure to exercise such care and caution that may be taken while driving the vehicle. Therefore, the deceased, who was walking on the left side of the road, would be visible to the driver of the lorry from the long distance and if he slows down the lorry, the accident would not have been occurred. Therefore, the finding of the lower Court that there was negligence on the part of the driver of the lorry need not be interfered with. 11. Now, the question is who was driving the lorry at the time of accident. PWs.1 and 2, who witnessed the accident, did not identify the person, who was driving the crime vehicle at the time of accident. PW-3 identified the petitioner as the driver of the crime lorry for the first time in the Court. The petitioner is a resident of Pernamitta Village whereas PW-3 is a resident of Mamidipalem. Therefore, the petitioner is stranger to PW-3. When the petitioner is stranger to the prosecution witness, it is the duty of the prosecution to conduct test identification parade to test the memory of the witness. It is not the case where the petitioner was seen by PW-3 for a considerable length of period. Immediately after the accident, the lorry was stopped at some distance from the place of accident and thereafter the petitioner got down from the lorry and ran way. So, in such circumstances, it may not be possible for PW-3 who had a very short occasion to see the driver of the lorry and to identify him after lapse of a long time. The descriptive particulars of the petitioner have not been specifically stated in Ex.P-1 statement, which was given by PW-3. If there are some striking features imprinted in the mind of PW-3 then, there is possibility for PW- 3 to identify the petitioner basing on the physical features even after lapse of long time. It is not such a case. Therefore, the identity of the petitioner for the first time in the Court by PW-3 is highly improbable. If there are any other circumstances to indicate that the petitioner was driving the crime lorry at the time of accident, then the evidence of PW- 3 can be used to corroborate that evidence. Except the solitary evidence of PW-3 with regard to identification of petitioners for the first time in the Court, there is no other evidence. 12. The trip sheet of the lorry is the best piece of evidence to show the name and signature of the driver of the lorry. But the trip sheet of the crime lorry was not seized by the police though the crime lorry was available at the scene of occurrence and inspected by them. No explanation has been given by the police officer as to why he did not seize the trip sheet, which is a valuable document showing the name and signature of the driver of the crime lorry. Therefore, both the Courts below have overlooked this aspect and gave an illegal finding that the petitioner is the driver of the crime lorry. In view of the fact that no trip sheet has been seized and no descriptive particulars of the petitioner have been mentioned in Ex.P-1 statement of PW-3 or when he was examined under Section 161 (3) Cr.P.C. by the police, the benefit of doubt can be given to the petitioner. 13. Accordingly, the Criminal Revision Case is allowed setting aside the judgment dated 29-07-2004 in Criminal Appeal No.163 of 2001 passed by the learned VI Additional District and Sessions Judge, Ongole, Prakasam District. The accused is found not guilty of the offence punishable under Sections 304-A IPC and 134 (a) & (b) read with 187 of the MV Act and accordingly he is acquitted. The fine amount, if any, paid by the petitioner shall be returned to him. ____________ K.C. BHANU, J June 24, 2010 KTL