THE HON’BLE SRI JUSTICE B.N. RAO NALLA CRIMINAL REVISION CASE No.103 OF 2005 Date:04-03-2011 Between: Mangalagiri Venkata Sateesh Kumar .. Petitioner And State of Andhra Pradesh, represented by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad. .. Respondent THE HON’BLE SRI JUSTICE B.N. RAO NALLA CRIMINAL REVISION CASE No.103 OF 2005 JUDGMENT: The accused in Criminal Appeal No.123 of 2002 on the file of the learned V Additional District and Sessions Judge (FTC), Khammam at Kothagudem, has preferred this Criminal Revision Case aggrieved by the judgment dated 24-01-2005 passed by the said Court in the said appeal whereby the appeal of the accused was dismissed confirming the conviction and sentence imposed on him by the learned Additional Judicial Magistrate of First Class, Kothagudem, in C.C. No.116 of 1997 vide judgment dated 08-11-1999, whereunder he was found guilty of the offences punishable under Sections 304-A IPC and Section 134 (a) & (b) read with Section 187 of the Motor Vehicles Act (for short “the Act”) and accordingly he was convicted and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,000/-, in default, to undergo simple imprisonment for eight months for the offence punishable under Section 304-A IPC and he was further sentenced to undergo simple imprisonment for one month and to pay a fine of Rs.100/- on each count, in default, to suffer simple imprisonment for one week on each count for violating the provisions of Section 134 (a) & (b) read with Section 187 of the Act, directing to run both the sentences concurrently. 2. The facts of the case are that the revision petitioner - accused is a resident of Vijayawada, whereas the deceased was a resident of Kothagudem. Both of them were working as Development Officers in M/s. Kalpatharu Real Estate, Vijayawada. The deceased was removed from service prior to the incident due to some problems. On 24-11-1996, the accused had been to Kothagudem to collect dues from the clients with the help of the deceased since he was resident of Kothagudem. On the date of the incident, while they were returning from Rudrampur on a motor cycle bearing No.AP-9/G/3760 driven by the accused in a rash and negligent manner and in the course of overtaking a Cyclist at ITI turning, at about 8.30 pm, they met with an accident. The deceased, who was pillion rider, fell down on the right side and suffered injuries. The accused absconded from the scene of offence and the deceased was shifted to Singareni Collieries Main Hospital, Kothagudem by P.W.4, a Cyclist. However, the deceased succumbed to the injuries while undergoing treatment. The deceased was known to the cyclist, as such, he informed about the accident to the father of the deceased who preferred police complaint - Ex.P-1 on 25-11-1996 at about 1-00 pm, basing on which, the Station House Officer, II Town Police Station, Kothagudem, registered a case in Crime No.236 of 1996 under Section 304-A IPC. The dead body of the deceased was subjected to postmortem examination. Ex.P-5 - scene of offence panchanama and Ex.P-2 - inquest panchanama proceedings were held. The scene of offence was photographed and services of the Motor Vehicle Inspector were requisitioned. The panch witness of Ex.P-2 opined that the deceased died in a road accident. The Motor Vehicle Inspector, as stated in Ex.P3 – report, stated that there was no mechanical defect in the motorcycle involved in the accident. P.W.5 – the Medical Officer, who issued Ex.P4 - postmortem report, has stated that the cause for death of the deceased was due to shock and hemorrhage and fracture of skull. The accused surrendered before the Station House Officer on 27-02-1997 and after completion of the investigation, the Station House Officer laid charge sheet before the Court against the accused for the offences under Sections 304-A IPC and 134 (a) & (b) read with Section 187 of the Act. 3. On the accused pleading not guilty to the charges, he was put on trial. 4. In support of its case, the prosecution has got examined PWs.1 to 7 and got marked Exs.P-1 to P-5 on its behalf. However, no witnesses were examined and no documents were marked on behalf of the accused. 5. The trial Court, taking into consideration of the evidence of the prosecution witnesses and other material on record, found the accused guilty of the charges against him and accordingly convicted and sentenced him as has already been stated in paragraph No.1 supra. Aggrieved by the said conviction and sentence, the accused has preferred Criminal Appeal No.123 of 2002 on the file of the Additional District and Sessions Judge (FTC), Khammam, at Kothagudem. However, the said Court, after re-appreciating the evidence and other material on record and after hearing both sides, has dismissed the appeal confirming the impugned judgment of the trial Court as has already been stated in paragraph No.1 supra. Aggrieved by the said judgment of the said lower appellate Court, the accused has filed this revision petition before this Court, inter alia, on the following grounds: That the trial Court erred in relying on the evidence of PW.4 – the Cyclist and PW.7 – an alleged eye witness to the accident, who are planted witnesses and their presence was doubtful at the scene of offence at the time of accident. The trial Court erred in drawing adverse inference since the prosecution did not examine the Investigating Officer. The trial Court also erred in not considering the fact that the deceased fell down from the two-wheeler due to skidding while the accused was taking turn. 6. It is the case of the accused that the evidence of PW.4, who was alleged to be an eyewitness (P.W.4 is typed as P.W.5 in the evidence sheet in trial Court), that he has identified the accused in the Court for the first time after the date of accident that took place about three years back, is improbable since it is also his evidence that it was dark at the time of the accident. The accident is alleged to have occurred after 7-30 P.M and PW.4 has testified that soon after the accident, he had shifted the deceased, in an injured condition, to the hospital. Therefore, it is contended that there was not much time for PW.4 to see and observe the accused meticulously so as to remember and identify him even after three years. Therefore, it is contended that both the Courts below have erred in relying on the evidence of this witness (PW.4) in convicting the accused considering his evidence that the two-wheeler was driven at high speed and suddenly it fell on the road, but though it was said that the two-wheeler was at high speed, the speed of the vehicle cannot be taken as rash and negligent driving of the driver of the two-wheeler. It is further contended that if a two-wheeler being driven by its driver at high speed and in a rash negligent manner involves in an accident, some damage is expected to be caused to it, but there is no material on record to show that any damage was caused to the two-wheeler. Hence, it goes to show that the accused, who was driving the two-wheeler, at the relevant time, was not rash and negligent in driving the same and in any case it cannot be said to be at high speed since PW.4 has only stated that the two-wheeler was moving at a speed. Moreover, there is no material to show that the accused had also suffered injuries in the accident. As per the prosecution’s case, deceased alone fell down from the two- wheeler at the time of the accident. This fact goes to show that the accused was not driving the two-wheeler at high speed and in a rash and negligent manner. 7. Further, it is the case of the accused that both the Courts below have erred in relying on the evidence of PW.7, who was examined as an eyewitness to the accident though he has admitted in his cross-examination that at the time of accident, he was present at the 4th incline bus stand, which is one mile away from the scene of offence. He stated that he waiting for arrival of his mother. Therefore, it is contended that a man being present at the bus stand, which is one mile away from the scene of offence, could see the accident and identify the accused that too after a gap of three years. Therefore, it is contended that PW.7 was not at all present at the scene of offence at the time of accident, as such, he was not an eyewitness to the accident and thus it is obvious that he is a planted witness. It is vehemently contended that non-examination of the Investigating Officer is fatal to the case of the prosecution and both the Courts below erred in not considering the said fact. Lastly it is contended that in view of the discrepancies in the evidence of PWs.4 and 7, non-examination of the Investigating Officer and since the two-wheeler involved in the accident was not produced before the trial Court at the time of trial, the appeal may be allowed by extending benefit of doubt to the accused. 8. Per contra, the learned Public Prosecutor supported the impugned judgment and conviction and sentence imposed on the accused by the trial Court and as confirmed by the first appellate Court. 9. In the above facts and circumstances of the case, this Court is of the view that neither non-producing the two-wheeler involved in the accident nor its non-marking is fatal to the case of the prosecution in view of Ex.P-3 – M.V.I. report issued by PW.3, the Motor Vehicles Inspector. PWs.4 and 7 are eyewitnesses to the accident and they had identified the accused in the Court. Both the Courts below after considering the evidence of all the prosecution witnesses coupled with the exhibits like Ex.P-2 – inquest panchanama, Ex.P-3 - M.V.I. repot, Ex.P-4 - postmortem report and Ex.P-5 – scene of offence panchanama etc., had rightly come to the conclusion and convicted and sentenced the accused for the offences stated supra. Therefore, the impugned judgment confirming the conviction and sentence imposed on the accused for the offences stated supra by both the first appellate Court is not liable to be interfered with by this Court. 10. In the result, the Criminal Revision Case is dismissed confirming the impugned judgment. __________________ B.N. RAO NALLA, J Date: 04-03-2011. MRB/PV