HONOURABLE SRI JUSTICE N.RAVI SHANKAR CRL.RC.No.134 OF 2005 ORDER: Heard Sri Kedareswar Katari, learned Counsel for the petitioner, and the learned Additional Public Prosecutor. The revision petitioner is the accused in C.C.No.257 of 2003 on the file of the Court of the V Metropolitan Magistrate, Vijayawada (Trial Court). He was put on trial for two offences i.e. one under Section 304-A IPC and the other under Section 134(b) read with 187 of the Motor Vehicles Act, 1988 (the Act). The Trial Court, after considering the evidence let in by the prosecution, by its judgment dated 17.11.2003, convicted the revision petitioner of both the above offences, and sentenced him to undergo six months simple imprisonment and also to pay a fine of Rs.200/- on the first count and it further sentenced him to pay a fine of Rs.100/- on the second count with default clause prison sentences with respect to payment of fines. The petitioner assailing the above judgment of the Trial Court filed Crl.A.No.242 of 2003 which was heard by the Metropolitan Sessions Judge, Vijayawada and the learned Sessions Judge, by his judgment dated 28.01.2005, confirmed the conviction recorded by the Trial Court but reduced the sentence of imprisonment imposed for the offence under Section 304-A IPC from six months to four months while maintaining the other sentences. Questioning the Appellate Court judgment, the petitioner has come up with this revision. Sri Kedareswar Katari argued that PWs.1 to 3, who were examined by the prosecution as eye-witnesses, cannot be treated as eye-witnesses at all, and if their evidence regarding occurrence of accident is rejected, there is no other evidence to find the petitioner guilty of the offences and that both the Courts below ignored this aspect and erroneously convicted the petitioner on both the counts and, therefore, the petitioner shall be acquitted. On the other hand, the learned Additional Public Prosecutor supported the judgment under appeal. Both the Trial Court judgment and the Appellate Court judgment and the records have been perused. The prosecution evidence consists of oral evidence of PWs.1 to 12 and also the documentary evidence i.e. Exs.P.1 to P.11. The said evidence would no doubt show that the accident pleaded by it has occurred on 18.02.2003 at about 7.15 P.M. on the National Highway-5 in between Enikepadu and Ramavarappadu near the tea-stall of PW.4, Sk.Subhani. The medical evidence also no doubt shows that the deceased suffered severe injuries in the said accident and he succumbed to the same on the next day i.e. 19.02.2003 in the Government Hospital, Vijayawada. The evidence on record would also show that the petitioner was the driver of the vehicle i.e. auto rickshaw in question belonging to him. It may, however, be noted that to establish a charge under Section 304-A IPC, proof of the above two requirements is not sufficient. The third and main requirement that has to be proved by the prosecution is that the driver of the auto rickshaw i.e. the petitioner herein drove the vehicle rashly or negligently and caused the accident that resulted in the death of the deceased. It has now to be seen whether prosecution evidence proves the above requirement. Both PW.1 K.Krishna Reddy, and PW.2 B.Suresh Reddy, are close relatives of the deceased. Their evidence i.e., chief-examination would read that both of them gave evidence as if they have seen the occurrence of the accident. However, in their cross-examination held on 23.08.2003, both of them stated that they were standing at that time at a place or a point which was more than one furlong away from the place of the accident. Further they have also not explained as to what was the occasion for them to be present near the place of occurrence when the accident occurred on the evening of 18.02.2003 at about 07.15 P.M. The above two circumstances are, in my opinion, sufficient to hold that PWs.1 and 2 have not seen the accident and cannot be treated as eye-witnesses. PW.3 who is the father of the deceased, did not admittedly see the accident and he is not an eye-witness. PW.4 Sk.Subhani who is said to have been running Kichidi bundy a cart near the place of accident, is cited as another eye-witness. In his chief-examination itself, he stated that the accident occurred on 18.02.2003 at about 7.00 P.M. or 07.15 P.M. and at that time he was doing business with his kichidi bundy i.e. cart and he happened to see the deceased lying on the road with injuries only after the accident. This version of PW.4 itself suggests that he did not see the accident. Thus, what should be noted is that PWs.1, 2 and 4 cannot be treated as eye-witnesses as contended by Sri Kedareshwar Katari. Learned Additional Public Prosecutor, who has also gone through the evidence in the course of the arguments, could not bring to my notice any circumstances in their evidence to conclude that they can be treated as eye-witnesses. The other evidence in the case does not pertain to the cause of accident. It, therefore, follows that the prosecution has failed to lead any convincing evidence to show that the petitioner was guilty of rash or negligent driving and he happened to hit the deceased. There is, however, one circumstance which should be noted. The version of the prosecution shows that the auto rickshaw of the petitioner went and hit the deceased from his behind or back side. Now the question is whether this circumstance alone is sufficient to find the petitioner guilty of offence of rash or negligent driving. It may be noted that there may be several reasons such as the deceased, who was going on a cycle negligently coming to the middle of the road and totally contributing to the accident and it cannot be ruled out also. Be that as it may, the evidence of PWs.1, 2 and 4 show that they are not eye-witnesses to the accident. Therefore, it can be safely said that there is no evidence at all to show that the petitioner has been guilty of rash or negligent driving. Hence the charge under Section 304-A IPC has to be rejected as not proved. Then coming to the offence under Section 134(b) of the Act, it may be noted that it deals with not giving information to the police by the driver about the circumstances relating to the occurrence of the accident or for not taking reasonable steps to secure medical attention to the person injured in the accident. Here the prosecution has alleged against the petitioner the offence of not securing medical attention to the deceased soon after the accident. On this aspect, the evidence of PWs.1 and 2 is that they reached the place of accident after the accident occurred and they shifted the deceased in the auto rickshaw of the petitioner himself to the hospital. It is of course true that PW.3, father of the deceased, stated that the deceased was shifted to the hospital in another auto rickshaw. However, the evidence of PWs.1 and 2 would show that the auto of the accused-petitioner was used for shifting the deceased to the hospital and in view of the above state of evidence, two views are possible on this aspect i.e. one which can be taken in favour of the petitioner and the other against him. In view of this, the one favourable to the accused as shown by the evidence of PWs.1 and 2 should be taken. Hence the petitioner cannot also be found guilty of the offence under Section 134(b) read with 187 of the Act. It may be noted that the above state of evidence would clearly show that the Trial Court as well as the Appellate Court ignored all the above circumstances found in the evidence and reached conclusions which are against the evidence and this can be said to be a good ground for this Court to interfere in the matter. Accordingly, this Criminal Revision Case is allowed and the petitioner is acquitted. The fine amounts, if any, paid shall be refunded to the petitioner after expiry of time available for the prosecution for pursuing its remedies against this order. N.RAVI SHANKAR,J Date:08.12.2011 usd