HON’BLE SRI JUSTICE K.G.SHANKAR Crl.R.C.No. 1701 of 2004 O R D E R : In an accident that occurred on 3.12.1999 at about 10.a.m. one Matador van bearing Registration No.AP 37T 7962 was involved. It hit the Hero Honda Motor cycle bearing registration No.AP 5G 2817 and other injured persons. Three persons were travelling on the Hero Honda Motor Cycle i.e, PWs.3, 4 and the deceased. All of them sustained injuries. The deceased-Pannamanda Lakshmana Rao met with instantaneous death in the said accident. The Matador van proceeded further and hit nearby the shops and stopped. In the process, injuries were caused to PWs.2,6 and 8. Thus, as many as five witnesses, viz., PWs.2 to 5 and 6 and 8 sustained simple injuries. A case was registered against the revision petitioner alleging that he was the driver of the Matador van at the time of the incident. The accused was found guilty by the trial court for the offence punishable u/Secs.304-A IPC and 337 IPC on five counts. The accused was sentenced to one year rigorous imprisonment and fine of Rs.1,000/- for the offence punishable u/Sec.304-A IPC. He was also sentenced to fine of Rs.500/- on five counts for the offence punishable u/Sec.337 IPC. The sentences of fine attracted default sentences. The accused preferred appeal. The appellate court confirmed the Judgment of the trial court. Aggrieved by the same, the present revision is laid. 2. The only contention of Sri K.L.N.Swami, learned counsel for the accused is that the accused was not the driver of the vehicle at the time of the commission of the offence, namely the accident. He drew my attention to the evidence of PWs.1 to 4, 6 and 8. PW.1 was supposed to be the eye-witness to the incident. He was the author of the FIR. P.Ws.2,3 and 4 as well as P.Ws.6 and 8 were injured witnesses. P.Ws.1,3,4,6 and 8 did not support the prosecution story to the extent of identification of the driver of the offending Matador van at the time of the accident. PW.4 was the driver of the Hero Honda Motor Cycle, which was hit by the driver of the Matador van. PW.3 was one of the Pillion riders. P.Ws.3 and 4 were not cross-examined. P.Ws.6 and 8 were agricultural labourer and flour merchant respectively. They allegedly sustained injuries in the accident. They were also not cross-examined. However, P.Ws.3,4,6 and 8 did not speak about the complicity of the accused for the commission of the offence. They did not identify the accused as the driver of the Matador Van at the time of commission of the offence. The learned counsel for the accused in the trial court rightly chosen not to cross-examine these witnesses. 3. As submitted by the learned counsel for the accused, the only witness claiming that the accused was the driver of the offending vehicle at the time of accident, is PW-2. In the chief-examination PW-2 deposed that the accused was driving the matador van at the time of the accident. In the cross- examination he however, stated that he was noticing the accused for the first time on the date of his deposition. It is not as though PW-2 was won over by the accused after his evidence in chief examination, since the chief examination and the cross-examination were recorded on the same day. Where PW-2 deposed in the cross-examination that he was seeing the accused for the fist time in the court, I agree with the contention of the learned counsel for the accused that it should be treated that PW-2 did not identify the accused as the driver of the offending vehicle at the time of the accident. 4. It is settled law that the evidence of a witness, who identifies an unknown culprit for the first time in the court should be considered with circumspection. The evidence of PW.2 was not preceded by any test identification parade. Assuming that PW.2 deposed that the accused was the driver of the Matador Van at the time of the accident, this evidence becomes susceptible to doubt and would not deserve to be accepted when corroboration for the evidence of PW.2 is absent. PW-2 admitted in the cross-examination that he never saw the accused prior to his evidence in the court hall. I am afraid that the evidence of PW.2 is not sufficient to accept the identification of the accused as driver of the offending vehicle at the time of the accident. 5. Indeed, it was not suggested to the witness by the defence counsel that the accused was not the driver of the offending Matador van at the time of the accident. Where the witness did not speak about the complicity of the accused as driver of the offending Matador van, making a suggestion to the witness would not arise. 6. The learned Public Prosecutor drew my attention to the absence of the statement by the accused in his examination u/Sec.313(1)(b) Cr.P.C,. that he was not the driver of the offending vehicle. Under Sec.313 Cr.P.C. Examination, the accused merely denied the evidence of the prosecution. He did not put forward any positive case that he was not driving the offending vehicle at the time of the accident. Be that as it may, the absence of a specific denial in the examination of accused u/sec.313 Cr.P.C. per se cannot be a ground to convict the accused. There must be enough material to establish the guilt of the accused beyond reasonable doubt. The only witness amongst the eye-witnesses, who spoke about the presence of the accused as driver of the offending vehicle indeed (PW-2) resiled from his evidence in the cross- examination. Secondly, the very claim of the prosecution that the accused was driving the offending vehicle at the time of the accident is not made out. 7. The prosecution failed to establish the guilt of the accused for the offences punishable u/Secs.304-A & 337 IPC in the light of the above circumstances. The conviction and the sentences recorded by the trial court and the appellate court are erroneous and are liable to be set aside. 8. Accordingly, the criminal revision case is allowed. The Judgment and conviction recorded against the accused are set aside. The accused is found not guilty of the offences punishable u/secs.304-A & 337 IPC as it is not proved that the accused was driving the offending Matador Van at the time of the accident and is consequently acquitted. The fine amount if paid by the accused already, shall be refunded to him. ______________ K.G.SHANKAR,J Dt. 01-07-2011 Mjl/*