THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Revision Case No.9 of 2005 Date: 11.09.2009 Between Bolle Kondaiah. .. Revision Petitioner/Accused And State of A.P., rep. By its Public Prosecutor, High Court of A.P., Hyderabad. .. Respondent/Complainant THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Revision Case No.9 of 2005 JUDGMENT: This revision case is directed against the judgment dated 30.12.2004 passed in Criminal Appeal No. 75 of 1999 by the IV Additional Sessions Judge (Fast Track Court), Mahabubnagar, confirming the judgment dated 23.03.1999 passed in C.C. No. 18 of 1999 by the learned Judicial Magistrate of First Class, Jadcherla, whereby and whereunder the petitioner/accused was convicted for the offence punishable under Section 304-A IPC and sentenced to suffer S.I for two years and also to pay a fine of Rs.2,000/-, in default to suffer S.I for six months. The brief facts of the case are as follows. The deceased Rajesh, aged about 19 years, along with his friends C. Bapuji Rao (PW.3), M. Suresh Babu (PW.4), Md. Gayas (PW.5) and Yunis (PW.6), who are all aged between 17 and 19 years, was practicing cycle riding on the fateful day. On 02.12.1998 at about 8.30 AM while they were riding cycles from Bhoothpur to Jadcherla side and when they reached near Malleboinapally village on National Highway No.7, the Tractor Trailer bearing No. AP 22 T 3978/79, being driven by the accused in a rash and negligent manner at high speed, came from their behind and dashed against the deceased. The deceased sustained grievous injuries including head injury. PWs.3 to 6 shifted the deceased in the same tractor to the Government Hospital, Badepally, where the deceased breathed last in the said hospital. One K. Venkat Ramulu (PW.1), the uncle of the deceased, lodged report Ex.P1 to the police. The police, Jadcherla, registered a case in Crime No.293 of 1998 under Section 304-A IPC. Sri G. Rasool (PW.10), ASI, Jadcherla, took up investigation, examined PWs.2 to 7 and recorded their statements. Thereafter, he conducted inquest over the dead body of the deceased in the presence of PW.7 and other mediators. The dead body was subjected to post-mortem examination. PW.10 had also visited the scene of offence and observed the same in the presence of mediators. After obtaining post-mortem report and Motor Vehicle Inspector’s report, PW.10 laid charge sheet against the accused. Since the accused denied the charge, the prosecution examined PWs.1 to 10 and got marked Exs.P1 to P6. The plea of the accused is total denial. The trial Court, on appreciation of the oral and documentary evidence on record, came to the conclusion that the accused committed the offence punishable under Section 304-A IPC and convicted him as stated supra. Since his appeal preferred against the said judgment was dismissed, the petitioner/accused filed this revision. Sri D. Bhasker Reddy, learned counsel for the revision petitioner/accused, argued that the deceased was practicing cycle riding for participating in cycle rally and therefore he might be riding his cycle speedily at the time of accident. It is also his submission that according to the prosecution case, the accused had overtaken PWs.3 to 6 and dashed against the Tractor and in such circumstances PWs.3 to 6 had no opportunity to witness the accident. It is also his submission that since PWs.3 to 6 had no prior acquaintance with the accused their claim of identifying the accused before the Court below should not be accepted in the absence of holding any test identification parade. Learned counsel further submitted that the accused was arrested on 08.12.1998 i.e., about six days after the date of offence and in such circumstances, the prosecution ought to have taken steps for holding test identification parade. In support of his contention, learned counsel for the petitioner/accused has relied on a judgment of this Court reported in Piginaraji Ranga Rao v. State of A.P[1]. Learned Public Prosecutor supported the judgments of both the trial Court as well as the lower appellate Court and submitted that there are no reasons to interfere with the same. The evidence let in by the prosecution shows that on the fateful day, the deceased along with his friends PWs.3 to 6 was practicing cycle riding on National Highway. They were proceeding from Bhoothpur towards Jadcherla and the deceased met with an accident near Malleboinapally village at about 8-15 AM when the Tractor driven by the accused hit the cycle of the deceased. PW.1 is the uncle of the deceased. He lodged the report Ex.P1 to the police. PW.2 is the mother of the deceased. PWs.1 and 2 are not the eye-witnesses to the accident. PW.7 is a mediator for observation of the scene of offence and for the inquest held over the dead body of the deceased. PW.8 is the Motor Vehicle Inspector who inspected the Tractor and gave his opinion that the accident did not occur due to any mechanical defect of the vehicle. Ex.P4 is the certificate issued by PW.8. PW.9 is the Doctor who conducted post- mortem examination over the dead body of the deceased and opined that the deceased died due to haemorrhage and shock due to injury to brain and that the injuries sustained by the deceased were sufficient to cause the death of the deceased. Ex.P5 is the post-mortem certificate issued by PW.9. PW.10 is the Investigating Officer who visited the scene of offence, observed the same, conducted inquest over the dead body of the deceased, examined the witnesses and sent the dead body of the deceased for post-mortem examination. The above referred evidence clinchingly proves that the deceased died in a motor accident. The evidence of PW.8 also proves that the accident did not occur due to any mechanical defect of the vehicle. Now the points that arise for consideration are; (1) whether the accused had driven the Tractor in a rash and negligent manner and caused the accident? and (2) whether the evidence of PWs.3 to 6 that they identified the accused can be believed in the circumstances of the case? PW.3 was studying intermediate first year and PWs.4 to 6 were studying Intermediate second year as on the date of accident. They were all practicing cycle riding and on the date of offence they were proceeding on their cycles from Bhoothpur towards Jadcherla side. According to these witnesses, when they reached near Malleboinapally on National Highway Road No.7, the deceased was riding cycle ahead of them. Then the offending Tractor being driven by the accused came from their behind in high speed and dashed the deceased. PWs.3 to 6 categorically deposed that the Tractor came at high speed and dashed against the deceased. Their specific case is that the accused had driven the Tractor in a rash and negligent manner. Their evidence further shows that they were just behind the deceased at a distance of 80 to 120 feet. According to PW.3, his cycle was at a distance of just 80 feet from the cycle of the deceased. According to PW.5, he was at a distance of 100 feet from the deceased at the time of accident. According to PW.6, he was at a distance of 1/2 KM from the deceased. Therefore, it appears that there was no opportunity for PW.6 to witness the accident. But, however, the evidence of PWs.3 to 5 reveals that they were riding cycles behind the deceased at the time of accident. The only suggestion given to these witnesses is that the deceased himself was negligent and that he was holding the Trolley of the Tractor and that when the Tractor took turning the deceased fell in a ditch and sustained injuries. Except giving such suggestion, which has been denied by the witnesses, there is nothing on record to substantiate the same. As seen from the above evidence, it is clear that the deceased was proceeding ahead of PWs.3 to 6 and the accused while driving the Tractor crossed PWs.3 to 6. This shows that the accused had an opportunity to observe that PWs.3 to 6 were proceedings on cycles one after another. When the accused had seen PWs.3 to 6 proceeding on cycles he ought to have reduced the speed of his Tractor and ought to have driven the Tractor carefully. It appears that there is nothing to disbelieve the testimony of the witnesses. In the above circumstances, I hold that the Courts below have rightly accepted the evidence of PWs.3 to 6 and held that the accused had driven the Tractor in a rash and negligent manner at high speed. Coming to the question of identification of the accused, the facts i n Piginaraji Ranga Rao’s case (1 supra), relied on by the learned counsel for the petitioner/accused, are different from the facts of the case on hand. In that case, after the accident, the lorry was stopped at a distance of 22 to 25 feet from the place of accident and the accused after stopping the lorry ran away from the place of accident. In that case, it was specifically observed that wherein a given case the witnesses had considerable time and opportunity to observe the offender, the situation would be different. Therefore, the important factor would be whether the witnesses had an opportunity to see the accused at the time of accident. In the instant case, it is the case of PWs.3 to 6 that they witnessed the accident and that after the accident they shifted the deceased in the same Tractor to the hospital. This shows that PWs.3 to 6 had ample opportunity to see the accused as they traveled with the accused by the same tractor after the accident. When the witnesses had ample opportunity to see the accused particularly in the day-time their evidence cannot be discarded. In such circumstances, non-holding of test identification parade is not fatal to the case of the prosecution. Each case has to be decided on its own facts and circumstances. In the circumstances, the conviction of the accused for the offence under Section 304-A IPC is confirmed. However, the offence took place on 02.12.1998 i.e., about 11 years ago and the accused was aged about 25 years on the date of offence. In the circumstances, I consider it just and reasonable to reduce the sentence of two (2) years imprisonment to six (6) months. Accordingly, the sentence of two years simple imprisonment is reduced to six (6) months simple imprisonment. Since the accused had already paid the fine amount, he shall serve the remaining period of sentence. The period of remand already undergone by the accused shall be given set off. Accordingly, the revision case is dismissed subject to the modification in the sentence to the extent as indicated above. ____________________ B. CHANDRA KUMAR, J. Dt. 11.09.2009 Nsr [1] 2009(2) ALT (Crl.) 128 (A.P)