THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.1376 OF 2009 JUDGMENT: 1. The appeal under Section 378(1) and (3) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’) is directed against the judgment, dated 15.02.2008, in C.C.No.5 of 2005, on the file of the Special Judicial Magistrate of First Class for Railways, Nellore, whereunder and whereby the respondent/accused was found not guilty for the offence punishable under Section 160(2) of the Railways Act (for short ‘the Act’) and accordingly acquitted. 2. The brief facts, which are necessary for disposal of the present appeal, may be stated as follows: 3. The accused while driving the lorry bearing No. AP26 T 8276, hit the west side room of the level crossing gate No.110 at Km No.166/22-24. At the time of dashing, the level crossing gate was in a closed condition. Due to hit by the lorry, it was damaged and the damage was assessed at Rs.20,000/-. During the course of investigation, on 06.11.2004 at about 9.30 a.m, the police arrested the accused and recorded the statement of the accused and the lorry was seized. After competition of investigation, the police filed the charge sheet. 4. When charge under Section 160(2) of the Act was framed, read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 5. To substantiate the charge, the prosecution examined P.Ws. 1 to 5 and marked Exs.P1 to P15. 6. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C putting the incriminating circumstances appearing against him in the evidence of the prosecution witnesses. The accused denied the same. No evidence either oral or documentary was adduced on behalf of the accused 7. The trial Court, after considering the evidence on record, came to the conclusion that the identity of the accused as the driver of the vehicle, who dashed to the level crossing gate, was not established and accordingly acquitted him. Challenging the same, the present appeal has been preferred. 8. Now the point for determination is: “Whether the prosecution proved the guilt of the accused beyond all reasonable doubt for the offence punishable under Section 160(2) of the Act?” 9. Learned counsel representing the learned Public Prosecutor contended that the evidence of P.W.5 would clearly go to show that the accused was the person, who was driving the lorry at the relevant point of time of the incident, that the documents seized by the Police Officer, P.W.1, would also go to show that the accused was the driver of the lorry and therefore, she prays to set aside the order of acquittal. 10. There cannot be any dispute that there is a presumption under law that the accused is presumed to be innocent unless contrary is proved. That presumption of innocence is further strengthened by an order of acquittal. Unless there are compelling or substantial reasons, ordinarily this Court would not interfere with the order of acquittal. Some of the compelling or substantial reasons are; (1) perverse finding is given (2) findings are not based upon any evidence (3) taking into consideration inadmissible evidence or (4) overlooking the admissible evidence. 11. The evidence of P.W.5 would clearly disclose that he was attending to the duty as a gateman at level crossing gate No.110 at about 12.00 noon on 12.10.2004. The accused, while driving the lorry bearing No. AP26 T 8276 dashed against the level crossing gate, thereby causing damage to a tune of Rs.20,000/-. The gateman saw the accused on the date of the incident and thereafter identified the accused as the person who was driving the vehicle at the time when the incident occurred before the Court. Admittedly, the accused is stranger to P.W.5. The accused was arrested on 06.11.2004 by P.W.1 in the presence of mediators. The investigating officer has not conducted any test identification parade so as to test the memory of P.W.5 to know whether the accused is the person, who was driving the vehicle at the time of the incident. He has also not given any explanation as to why he has not sent any requisition to the Magistrate concerned to hold any test identification parade. No doubt, the identification of the accused by the witness for the first time in the Court is the substantive piece of evidence, but at the same time, when the accused is not known to the witness, it is expected from the witness as to how he could be in a position to identify the accused after a lapse of long time. P.W.5 has not given any descriptive particulars of the accused and he has not given any explanation in the Court as to how he could be in a position to identify the accused after a lapse of long time. If the physical features of the accused, which are so glaring are imprinted in the mind of the witness, then only there is a scope or possibility for the witness to identify him. There are no such striking physical features of the accused imprinted in the mind of P.W.5 so as to recollect the same and identify him after a lapse of long time. Therefore, the trial Court has not placed any reliance on the evidence of P.W.5. The police have not collected any documents relating to the driving licence, ownership of the vehicle and registration certificate of the vehicle so as to infer that the accused was driving the vehicle as on the date of incident. Except the oral evidence of P.W.5, there is no other evidence to show that the accused was the person, who was driving the vehicle on the date of incident. P.W.2 is the mediator at the time of arrest of the accused. The evidence of P.Ws. 3 and 4 is only hearsay. Admittedly, they are not eye witnesses to the incident. Therefore, the trial Court has not placed any reliance on their evidence. The findings are based upon proper appreciation of evidence. There are no compelling or substantial reasons to interfere with the impugned judgment. 12. The Criminal Appeal is, accordingly, dismissed at the stage of admission confirming the judgment dated 15.02.2008 in C.C.No.5 of 2005 on the file of the Special Judicial Magistrate of First Class for Railways, Nellore. ______________ K.C.BHANU, J Dated 5th November, 2009 vrn