* THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR + CRL. R.C. NO. 30 OF 2005 % 21-08-2009 # Nallapalli Seetharamaiah S/o.N. Balaiah ..… Petitioner/Accused Vs. $ The State of Andhra Pradesh, rep. by Public Prosecutor, High Court Building, Hyderabad. …Respondent !Counsel for the Petitioner : Sri C. Praveen Kumar ^Counsel for the Respondent : Public Prosecutor <Gist : >Head Note: ?Cases Referred: 1. 2009 (1) ALD (Crl.) 952 (AP) IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD FRIDAY, THE TWENTY FIRST DAY OF AUGUST, TWO THOUSAND AND NINE PRESENT: THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CRIMINAL REVISION CASE No.30 OF 2005 Between: Nallapalli Seetharamaiah S/o. N.Balaiah …. Petitioner And State of Andhra Pradesh, Rep. by its Public Prosecutor, High Court Bldgs., Hyderabad. …. Respondent THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CRIMINAL REVISION CASE No.30 OF 2005 ORDER: This Criminal Revision Case by the petitioner/accused is directed against the judgment dated 12-01-2005 in Criminal Appeal No.77 of 2003 passed by the learned V Additional Sessions Judge, West Godavari at Eluru. 2. Hereinafter, the petitioner will be referred to as ‘the accused’ for the sake of convenience. 3. The accused was tried by the learned Additional Judicial Magistrate of First Class, Tadepalligudem in C.C. No.271 of 1999 and he was found guilty of the offences punishable under Section 304-A IPC and Section 134 (b) read with 187 of the MV Act and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/- for the offence punishable under Section 304-A IPC, in default to undergo simple imprisonment for two months and also to pay a fine of Rs.50/- for the offence punishable under Section 134 (b) read with Section 187 of the MV Act, in default to undergo simple imprisonment for three days. Aggrieved by the same, he preferred above referred Criminal Appeal. The Appellate Court confirmed the conviction and sentence in respect of the offence punishable under Section 134(b) read with 187 of the Motor Vehicle Act and modified the sentence from one year simple imprisonment to six months simple imprisonment for the offence punishable under Section 304 IPC. 4. The brief facts of the case are as follows: The unfortunate accident occurred on 06-06-1999 when the deceased Galla Seetha, daughter of Brahmachary, a student of 10th class, aged about 14 years (hereinafter referred to as ‘the deceased), died in a motor accident. The deceased was going on the cycle from Nallajerla side towards Koyyalagudem side along Aswaraopet – Nallajerla road. When the deceased was proceeding in between K.M. No.88/4 and 88/6, near Pothavaram village, it is alleged that the accused had driven the lorry bearing No.AP20-T-8899 in a rash and negligent manner at a high speed, consequently the lorry while coming from opposite direction and dashed against the deceased. As a result, the deceased fell down and the lorry ran over her causing her instantaneous death. After noticing the accident, without rendering any assistance to the injured, the accused left the spot abandoning the lorry at the place of accident itself. (ii) The matter was reported to the police by the V.A.O. of Pothavaram and the Police of Ananthapalli Police Station registered a case in Crime No.52 of 1999 under Section 304-A IPC. After completing the investigation, charge sheet was filed against the accused. 5. The accused pleaded not guilty and claimed to be tried. 6. The prosecution, in order to prove its case, examined PWs.1 to 12 and got marked Exs.P-1 to P-14. None were examined on behalf of the accused for his defence. 7. The learned counsel Ms. C. Vasundhara Reddy submitted that there are no eyewitnesses to the accident and that the evidence of PW.1, father of the deceased, that he had identified the accused before the Court cannot be believed because for the first time he claims to have identified the accused after three and half years of the accident. It is also her submission that when the accused had absconded from the scene of offence immediately after the accident and when the prosecution witnesses had no prior acquaintance with the accused and when no test identification parade was conducted, the claim of PW.1 that he identified the accused before the Court for the first time after three and half years, cannot be accepted. Her further submission is that merely because the driving licence of the accused and the trip-sheet containing the name of the accused were seized from the lorry, it does not mean that the accused himself had driven the lorry at the time of the accident. 8. It is also her submission that even if it is held that the accused had driven the vehicle, in the absence of any eyewitness, it cannot be said that the accused had driven the vehicle in a rash and negligent manner. In support of her contention, she has relied upon the judgment of this Court in KANCHERLA NAGARAJU v. STATE OF ANDHRA PRADESH[1]. It is also her submission that the statement made by an accused under Section 251 Cr.P.C. cannot be relied upon for convicting him. 9. The learned Public Prosecutor supported the judgments of the trial Court and the appellate Court. He submitted that PW.1 had identified the accused before the Court and that his evidence has been corroborated by the contents of the driving licence and the trip-sheet. It is also his submission that in a case of motor accident, it is difficult to secure the evidence of an eyewitness particularly when the accident has taken place at an isolated place. 10. Now the point for consideration is whether the prosecution has proved its case beyond reasonable doubt and whether the Courts below have properly appreciated the evidence ? 11. The specific allegation against the accused is that he had driven the lorry bearing No.AP20-T-8899 in a rash and negligent manner and dashed against the cycle of the deceased while the deceased was proceeding from Nalllajerla side to Koyyalagudem on 06-06-1999 at about 8.15 AM near Pothavaram village. 12. PW.1 is the father of the deceased. PW.2 is the mother of the deceased. PW.3 is the uncle of the deceased. They have not witnessed the accident. PW.4 is the mediator at the time of holding inquest over the dead body of the deceased and also at the time of observation of scene of offence. PW.5 is the Motor Vehicle Inspector, who inspected the vehicle on 08-06-1999 and opined that the accident is not due to any mechanical defects of the vehicle. Ex.P-2 is the report of PW.5. 13 PW.6 is the V.A.O. Though, he claims that he had also witnessed the accident, his statement under Section 164 Cr.P.C., Ex.P-4, shows that he had stated before the police that on coming to know about the accident, he reported the matter to the police. Ex.P-3 is the report given by this witness. Though, he had reported the accident to the police, he did not mention in that report that he had also witnessed the accident. Therefore, the claim of PW.6 before the Court that he had witnessed the accident cannot be accepted. Moreover, according to PW.6 the driver and the cleaner of the lorry were not present at the scene of offence. He has also admitted that he does not know the lorry driver. 14. PW.7 is also related to the deceased and he had reached the scene of offence only after the accident. PW.8 is the photographer who had taken the photos at the scene of offence. PW.9 is the cleaner of the lorry and he had not supported the case of the prosecution. He denied to have stated before the police as in Ex.P-9. PW.10 is the doctor, who conducted postmortem examination over the dead body of the deceased. 15. PW.11 is the Sub Inspector of Police, who investigated this case. According to him, he visited the scene of offence, examined the witnesses, sent the dead body of the deceased for postmortem examination, sent the requisition to the Motor Vehicle Inspector for inspection of the vehicle, arrested the accused on 11-06-2009 and after obtaining the postmortem certificate and Motor Vehicle Inspector’s report, filed the charge sheet against the accused. He has admitted that the accused was arrested 5 days after the incident. 16. PW.12 is the Head Constable, who registered the case and sent F.I.R. to the Court. He prepared rough sketch of the scene of offence. Ex.P-14 is the rough sketch. According to PW.12, accused was present at the scene of offence and that he seized driving licence and C-Book from the accused. It is also his version that since he was not competent to arrest the accused, he did not arrest the accused. 17. According to PW.11, accused was arrested on 11-06-1999. When the accused was available at the scene of offence, it is not clear under what circumstances, he could not be arrested on the same day and why his arrest was shown on 11-06-1999. It is surprising to note that PW.12 being Head Constable deposed that he was not competent to arrest the accused. A suggestion was given to PW.11 that the accused was not the driver of the lorry at the time of accident and that he was called to the scene of offence for repairing the lorry and that subsequently he was arrested and falsely implicated this case. 18. The only witness, who claims to have seen the accused at the scene of offence, is PW.1. According to PW.1, he was present at the time of accident. He deposed that the deceased went to a shop for purchasing some provisions and while returning from the shop, the lorry came from the opposite direction and dashed against the deceased. He says that he was present at the scene of offence and that the accused is the driver of the lorry. During cross-examination of this witness, he admitted that he was not present at the time of accident. 19. PW.12 proceeded to the scene of offence and examined the witnesses including PW.1. According to PW.12, PWs.1, 2, 3, 6, 7 and 9 did not state before him in their statements recorded under Section 161 (3) Cr.P.C. that they witnessed the accident. PW.11 is the Investigating Officer. He has also admitted that he verified the statements under Section 161 (3) Cr.P.C. recorded by PW.12 and no witness had stated before the Head Constable (PW.12) that they had witnessed the accident and that the accused was the driver of the lorry. He further deposed that though he tried to secure direct witness, nobody came forward. 20. Thus, a reading of the entire evidence, gives an impression that there were no eyewitnesses to the accident and the Police Officers, who recorded the statement of PW.1, categorically deposed that PW.1 did not claim before them that he had witnessed the accident. 21. A witness, who did not state before the police that he witnessed the accident, if subsequently changes his version and claims that he had witnessed the accident, the evidence of such witness cannot be believed since he has materially changed his version. The earliest version of the witness assumes much importance in a criminal case. If the version given before the Court is differing from the earlier version of the prosecution witness, it creates any amount of doubt and about the trustworthiness of such witness. When it appears that a witness is wholly not reliable, the evidence of such witness cannot be the basis for convicting an accused. If it appears that a witness is partly reliable his evidence must be carefully scrutinized on the touch stone of probabilities and normal human conduct and natural consequence of events. If it appears that the evidence of a witness is wholly reliable, the evidence of such witness can be safely accepted. 22. In view of the above discussion, I am of the view that the evidence of PW.1 cannot be relied upon for convicting the accused. Once the evidence of PW.1 is excluded from consideration, there remains no evidence against the accused. Of course, the seizure of driving licence and trip sheet containing the name of the accused is a strong circumstance against the accused. But, according to PW.12, who seized them, admitted that though he seized documents from the accused, he did not arrest the accused. Non arresting of the accused immediately after the accident create doubt about the seizure of documents from the accused. Moreover, the prosecution did not examine any witness to speak about the contents of those documents. It appears to be not safe to convict the accused on the basis of entries in driving licence and trip sheet. Utmost it may be a strong circumstance to say that the accused was the driver of the lorry. But the same is not sufficient to say that the accused had driven the lorry at the time of accident. There may be several instances wherein some other person may drive the vehicle though the name of the driver is noted in trip sheet. 23. While appreciating the evidence of witnesses, it is the duty of the Court to examine whether the witnesses have changed their earliest version and whether their evidence is inspiring confidence or not. If the evidence is accepted without even verifying whether the witnesses have changed their earliest version or not, the same amounts to improper appreciation of evidence or misreading of evidence. When the appreciation of evidence results in miscarriage of justice, it is the duty of this Court to prevent the gross miscarriage of justice and for correcting the manifest illegality, revisional powers have to be exercised. Proper appreciation of evidence is the fundamental duty of the Courts. Evidence of a witness cannot be accepted on its face value, it has to be treated on the touch stone of probabilities and it has to be verified whether it is in consonance with normal human conduct and natural consequence of events. 24. In view of the above discussion, I hold that the prosecution has failed to prove its case beyond reasonable doubt and both the Courts below have grossly erred in believing the evidence of the prosecution. 25. Accordingly, the Criminal Revision Case is allowed and the judgment dated 12-01-2005 in Criminal Appeal No.77 of 2003 passed by the learned V Additional Sessions Judge, West Godavari at Eluru confirming the judgment dated 17-03-2003 in C.C. No.271 of 1999 passed by the Additional Judicial Magistrate of I Class, Tadepalligudem, West Godavari is set aside. Consequently, the conviction and sentence passed against the accused is set aside. The fine amount, if any, paid by the accused, shall be refunded. The accused shall be set at liberty forthwith, if he is not required in any other case. _____________________ B. CHANDRA KUMAR, J AUGUST 21, 2009. KTL LR copy to be marked. [1] 2009 (1) ALD (Crl.) 952 (AP)