THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. R.C.No.1655 of 2005 Date: 10.10.2011 Between: Anasuri Satyanarayana … Petitioner/ Accused AND State of Andhra Pradesh, Rep.by its Public Prosecutor, High Court of A.P., Hyderabad. … Respondent THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. R.C. No.1655 of 2005 ORDER: The sole accused was said to be the driver of the lorry bearing registration No.ATP-3969. He allegedly caused the accident at about 7.30 p.m. on 30.11.2000 between Anaparthi and Bikkavolu in East Godavari District. The accused allegedly drove the lorry in a rash and negligent manner and caused the death of T.Suryanarayana Reddy @ Thammu, who was driving TVS Suzuki motorcycle bearing registration No.AHO- 8316. The sole accused allegedly committed the offences under Sections 304-A and 337 of the Indian Penal Code (‘IPC’ for short) as well as u/s.134 (a) and (b) read with Section 187 of the Motor Vehicles Act. After recording the evidence of eight witnesses, the learned Additional Judicial Magistrate of First Class, Ramachandrapuram found the accused guilty of all the offences and recorded a conviction against him. Assailing the same, the sole accused preferred Criminal Appeal before the Sessions Court, Rajahmundry. The learned II Additional Sessions Judge, Rajahmundry dismissed the appeal. He confirmed the conviction and sentence recorded by the trial Court. Hence, the present revision. 2) The case of the prosecution is: a) The deceased T. Suryanarayana Reddy @ Thammu and PW.2 were proceeding from Sri Subramanyeswara Rice Mill, Bikkavolu on a TVS Suzuki motorcycle bearing registration No.AHO-8316. The deceased was riding the motorcycle. By about 7.30 p.m., the motorcycle reached the nearabouts of Vanga Tataiah Makam Shed on the Canal Road. At that time, the accused drove the lorry bearing registration No.ATP- 3969 from Anaparthi side towards Bikkavolu in a rash and negligent manner and dashed the motorcycle from behind. b) The deceased and PW.2 fell down from the motorcycle. The left front wheel of the lorry ran over the head of the deceased leading to the instantaneous death of the deceased. PW.2 sustained injuries in the said accident. The accused would not appear to have taken care of the deceased and the injured after the accident. The accused thus committed the offences under sections 304-A and 337 IPC as well as Section 134 (a) and (b) r/w Sec.187 of the Motor Vehicles Act. 3. Smt. Zareena Afsar, learned counsel representing the prosecution contended that the medical evidence is watertight and that the evidence of PWs.2 and 5, which supported to the medical evidence establishes guilt of the accused beyond reasonable doubt. She further contended that there is no error apparent on record and that the judgment of the appellate Court was sustainable. 4. Sri T.V. Jaggi Reddy, learned counsel for the revision petitioner/accused, on the other hand, contended that the very identity of the accused had not been made out and that the evidence of the prosecution did not establish that the lorry driven by the accused hit the deceased. 5. He referred to Ex.A.8 rough sketch of the scene of offence. He also referred to the evidence of various witnesses in support of his contention. PW.5 was one of the eyewitnesses for the accident. He deposed that there were heaps of road repairing material on the road including sand heaps and that vehicles usually ply slowly in that area. It is the contention of the learned counsel for the accused that the lorry must have been driven slowly and the question of rash and negligent driving on the part of the driver of the lorry cannot be assumed. It may be noticed that PW.1 deposed that the scene of offence consisted of a bad road and that vehicles ply and are expected to ply cautiously and slowly on the road. He never deposed that the driver of the offending lorry was driving the lorry cautiously. It is precisely the case of the prosecution that as the road was in a bad shape, while vehicles were expected to move cautiously, the accused drove his lorry in a rash and negligent manner disregarding the road conditions and caused the accident. As rightly submitted by the learned counsel for the Additional Public Prosecutor, the bad road condition is not a fact of in favour of the accused but is a pointer against the accused. 6. The learned counsel for the accused also pointed out that the very nature of the accident shows that the driver of the lorry was not responsible for the accident. He drew my attention to Ex.P.8 rough sketch where the dead body of the deceased was shown in front of the lorry and not behind the lorry. It is the contention of the learned counsel for the accused that if the lorry had crushed the head of the deceased, Ex.P.8-rough sketch would have shown the dead body of the deceased in between the front and rear sides of the lorry or even behind the lorry. However, the dead body was shown in Ex.P.8 as lying in front of the offending lorry. 7. It is the contention of the learned counsel for the accused that as the dead body of the deceased was found in front of the lorry, the story of the prosecution could not be accepted. This contention cannot be countenanced. The rough sketch discloses that the dead body was lying more or less in the middle of the road. The lorry was at a distance of four feet to five feet from the right margin of the road. Obviously, the lorry was travelling on the wrong side of the road and hit the deceased. I am afraid that Ex.P.8- rough sketch as drawn by PW.8 (Sub- Inspector of Bikkavolu Police Station at the relevant time) does not negate the case of the prosecution. I at once consider that the claim of the learned counsel for the accused in this context is liable to be rejected. The same is accordingly not accepted. The evidence of PW.8 coupled with Ex.P.8 leads to an inference that the accident was on account of the rash and negligent driving of the offending lorry. 8. The basic contention of the learned counsel for the accused, however is that the identification of the accused as a driver of the offending lorry has not been made out. It is well settled that the evidence of a witness identifying an unknown culprit for the first time in the Court should be treated with circumspection unless the same is preceded by a test identification parade. It is not the case of anybody that the witness knew the accused prior to the accident. Nevertheless, the prosecution never thought it fit to hold a test identification parade by witnesses. Consequently, the identification of the accused for the first time by the witnesses in the Court would not establish that the accused was the driver of the offending lorry at the time of the accident. 9. However, this aspect of not subjecting the accused to test identification parade is irrelevant in the present case, since the witnesses have not identified the accused as driver of the offending lorry. 10. PW.1 was the Village Administrative Officer of Bikkavolu. He was not an eyewitness for the accident. He reached the scene of offence after he heard about the accident and the consequent death of the deceased. PW.3 was an eyewitness for the accident. He, at any rate, did not support the prosecution story. He was considered hostile. The learned Assistant Public Prosecutor was permitted by the trial Court to put leading questions to PW.3. However, PW.3 nevertheless claimed that he did not see any part of the accident. PW.4 was the elder brother of the deceased. He was not an eyewitness for the accident. He came to know about the accident and rushed to the scene of offence. PWs.1 to 5 alone are material witnesses. Out of these material witnesses, PWs.2 and 5, apart from PW.3, were also eyewitnesses for the incident proper. Both PW.2 as well as PW.5 speak about the accident claiming that the accident was due to the rash and negligent driving of the offending lorry. However, while PW.2 deposed that he could not identify the driver of the offending lorry, PW.5 deposed that he did not see the driver of the offending lorry. Thus, out of three eyewitnesses for the accident proper, PW.3 did not support the prosecution story while PWs.2 and 5 did not identify the accused as the driver of the offending lorry. 11. No doubt, the accident has been established by PWs.2 and 5 that the driver of the offending lorry caused the accident on account of his rash and negligent driving. However, in view of the evidence of PWs.2, 3 & 5, the crucial aspect that the accused was the driver of the offending lorry at the time of accident has not been made out. 12. It would appear that the prosecution relied upon the alleged confession of the accused himself that he was driving the offending lorry. The prosecution did not even co-relate the accused with the driver of the lorry at the time of accident by exhibiting the trip sheet of the lorry. Thus, no cogent and satisfactory evidence is forthcoming to show that the accused was the driver of the lorry at the time of the accident. 13. Once the prosecution failed to show that the accused was the driver of the offending lorry at the time of the accident, benefit of doubt goes to the accused. The accused, therefore, cannot be convicted for the alleged offences, in view of the fact that the prosecution failed in establishing that the accused was driving the lorry at the time of accident. Consequently, the accused is liable to be acquitted for the offences under which he was convicted by the trial Court. 14. The trial Court and the appellate Court erred in concluding that the accused was the driver of the offending lorry, in the absence of clinching evidence. The trial Court and the appellate Court, therefore, erred in appreciating the evidence in the correct perspective. 15. In view of the prosecution failing to establish that the accused was the driver of the offending lorry at the time of accident, the accused is liable to be acquitted of the offences under Sections 304-A and 337 IPC as well as u/s.134 (a) and (b) r/w Sec.187 of Motor Vehicles Act. Accordingly, the accused is found not guilty of the offences under Sections 304-A and 337 IPC as well as u/s.134 (a) and (b) r/w Sec.187 of Motor Vehicles Act and is acquitted of the charges. His bail bonds stand discharged. The fine amount, if already paid by the accused, shall be refunded to him. 16. The Criminal Revision Case is, accordingly, allowed. ________________ K.G. SHANKAR, J Date: 10.10.2011 Isn