THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL REVISION CASE No.1751 of 2004 Dated:- July 08, 2010 Between: Mohammad Saida @ Shaik Jani …Petitioner AND The State of A.P. …Respondent THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL REVISION CASE No.1751 of 2004 ORDER: This Criminal Revision Case is directed against the judgment dated 07.10.2004 passed in Crl.A.No.603 of 2001 by the VI Additional Sessions Judge, Guntur, whereby and whereunder, the learned Additional Sessions Judge confirmed the judgment 26.11.2001 passed in C.C.No.169 of 2000 by the I Additional Munisif Magistrate, Gurazala, Guntur District, convicting the accused for the offences punishable under Sections 337, 338 and 304(A) IPC and sentencing him to suffer Simple Imprisonment for three months for the offence punishable under Setion 337 IPC, Simple Imprisonment for six (06) months for the offence punishable under Section 338 IPC and Simple Imprisonment for one year for the offence punishable under Section 304(A) IPC. All the substantive sentences were ordered to run concurrently. The petitioner herein will be, hereinafter referred to as the accused for the sake of convenience. 2. The specific charge levelled against the accused is that on 14.03.2000, the accused drove a lorry bearing registration No.ATT 8118 in rash and negligent manner and dashed against a tractor bearing registration No.AP 7 W 280, resulting in death of three persons (hereinafter will be referred to as D-1 to D-3) and injuries to 13 persons. The accused was charge sheeted for the offences punishable under Sections 337, 338 and 304(A) IPC. 3. Since the accused pleaded not guilty, the prosecution, in order to prove its case, examined P.Ws.1 to 23 and marked Exs.P.1 to P.21. On behalf of the accused, none were examined and no exhibits were marked. 4. The trial Court, having believed the version of the prosecution, found the accused guilty for the above said offences and convicted and sentenced him as stated supra. On appeal, the lower appellate Court also confirmed the conviction and sentence passed against the accused by the trial Court. Hence, this revision. 5. Heard. 6. The main submission of the learned counsel for the petitioner is that none of the examined witnesses identified the accused and none of them deposed that the accused had driven the lorry involved in the accident. It is also submitted that merely because a ghastly accident had taken place, the accused cannot be convicted without considering the evidence on record. It is further submitted that admittedly there was a collision between the lorry and the tractor and the tractor was not insured and the driver of the tractor was not having valid driving license and since the legal heirs of the deceased and the injured persons could get compensation if a case is registered against the tractor driver, a false case was registered against the accused. It is also submitted that in the absence of any evidence to show that the accused had driven the lorry involved in the accident in a rash and negligent manner, no offence can be said to be made out against the accused. It is also submitted that no documents were seized from the lorry involved in the accident to connect the accused with the accident. It is also submitted that in case of ghastly accident, the prosecution ought to have examined the Investigating Officer and non-examination of the Investigating Officer is fatal to the case of prosecution. 7. Per contra, the learned Additional Public Prosecutor submitted that three persons died and several persons injured in the accident and all of them have categorically deposed that the offending lorry was driven at a high speed and that the accident occurred due to rash and negligent driving of the lorry driver and, therefore, the conviction and sentence recorded against the accused by both the Courts below are perfectly justified no interference by this Court is required. 8. The only point that arises for consideration in this revision is whether there is any legal evidence to convict the accused in this case. 9. No doubt, a ghastly accident had taken place resulting in death of three persons and injuries to several others. However, the facts remain that there was a collision between the tractor and the lorry. Admittedly, several passengers were traveling in the trailor attached to the tractor and it was overloaded. Admittedly, there is a curve at the plae of accident. Now, it has to be seen whether any of the witnesses had categorically deposed that the driver had driven the lorry in a rash and negligent manner and whether the accused had driven the lorry involved in the accident. 10. Unfortunately, both the Courts below seem to have not read the evidence of the witnesses properly in this case. The Magistrates / Judges have to read the evidence of each and every witness patiently and base their conclusions on proper appreciation of the evidence available on record. Presumptions and assumptions have to be drawn only when they are permissible as per the provisions of the Indian Evidence Act. No culpability or the involvement of the accused can be presumed in the absence of any legal evidence. In the instant case, merely because witnesses deposed that the lorry dashed against the tractor, the accused cannot be convicted. Even if the witnesses deposed that they know the accused, that is not sufficient to connect the accused with the crime vehicle. When they had not deposed that it is the accused who had driven the lorry, no presumption can be drawn in favour of prosecution. In the absence of any evidence to show that the lorry was driven by the accused in a rash and negligent manner, the accused cannot be found guilty. 11. Let us see the evidence of the witnesses. P.W.1 – Botla Venkata Ramana is the injured witness. He had categorically deposed that he does now know the accused. Thus, his evidence is not useful to the prosecution. 12. Coming to the evidence of P.W.2 – Kondeddula Subbarao, he had deposed that while they were returning from Guthikonda to Gundlapalli village in a tractor and when they reached two kimometres from Guthokonda, one lorry came from opposite direction and dashed against the tractor due to which, the occupants of the tractor fell down and out of them, D-1 to D-3 died and others sustained injuries including himself. A fair reading of his evidence also gives an impression that he does not whisper anything about the accused except stating that he knows the accused. Similarly, all other witnesses, though some of them deposed that they know the accused, none of them had deposed that the accused had driven the lorry at the time of accident or that the lorry was driven by the accused in a rash and negligent manner. 13. It is not the number of witnesses that has to be considered but it is the quality of evidence that has to be considered. Unfortunately, it is not elicited from the witnesses that any of them had seen the accused driving the lorry or that they saw the accused driving the lorry in a rash and negligent manner. Hence, I am of the view that the judgments of both the Courts below are not based on any legal evidence and as such, they are liable to be set aside. 14. Accordingly, the Criminal Revision Case is allowed setting aside the judgments of both the Courts below. Consequently, the conviction and sentence recorded against the petitioner are also set aside. Fine amount, if any paid by the petitioner / accused shall be returned to him. _______________________________ JUSTICE B.CHANDRA KUMAR July 08, 2010 Bvv