THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 250 OF 2010 JUDGMENT: 1. This Criminal Appeal, under Section 378(3) & (1) Cr.P.C., is preferred by the State against the judgment dated 24.03.2006 in C.C. No.445 of 2004 on the file of the Judicial Magistrate of First Class, Mahabubnagar, whereunder and whereby the respondent/accused was acquitted of the offence punishable under Section 304A I.P.C. 2. The case of prosecution, in brief, is that, on 16.2.2004 at about 9.30 hours, while one N.Kistamma (hereinafter referred to as ‘the deceased’) was crossing road in front of Harihara Function Hall, New Town, Mahaboobnagar, one diesel auto hit her, as a result of which, she sustained the injuries. Immediately, she was shifted to Hospital and at about 18.00 hours, she succumbed to the injuries. 3. The plea of accused is one of denial. To substantiate its case, the prosecution examined P.Ws. 1 to 9 and got marked Exs.P1 to P7. No oral or documentary evidence was adduced on behalf of the accused. 4. The trial Court, by the impugned judgment, came to conclusion that the identity of the accused as the driver of the crime vehicle, has not been established, and accordingly, acquitted him. Challenging the same, the present appeal is preferred by the State. 5. Now, the point for determination is whether the prosecution is able to establish the guilt of the accused of the offence punishable under Section 304A I.P.C. and whether the findings of the trial court are correct, legal and proper ? 6. The learned counsel representing the Public Prosecutor contended that P.W.2 identified the accused as driver of the crime vehicle, and hence, she prays to set aside the order of acquittal and convict the accused. 7. There cannot be any dispute that, generally, the order of acquittal shall not be interfered with, because the presumption of innocence of the accused is further strengthened by acquittal. If the judgment of the court below is not based upon proper appreciation of the evidence on record or inadmissible evidence has been taken into consideration or admissible evidence has been overlooked, then the appeal can be admitted. This, being an appeal against the order of acquittal, there must be compelling and substantial reasons to interfere with the impugned judgment. 8. The accident is not in dispute. The death of the deceased in the accident is also not in dispute. It is also not in dispute that, the accident was caused not due to any mechanical defects of the crime vehicle. P.Ws. 2 and 3 are said to be the eye-witnesses to the incident, but P.W.3 did not identify the accused as the driver of the crime vehicle. Therefore, the entire case rests upon the solitary evidence of P.W.2, who identified the accused as the driver of the crime vehicle, for the first time in the court. When a case rests upon the solitary testimony of a witness, his evidence must be true, trustworthy and must be put in the category of ‘wholly reliable’. Admittedly, the accused is stranger to P.W.2. Therefore, in such circumstances, to test the memory of a witness with regard to the identity of the person involved in the offence, the prosecution is obliged to conduct test identification parade. But, no such identification parade was conducted. After lapse of long time, P.W.2 identified the accused as the driver of the crime vehicle. He did not give any physical features of the accused. It is not the case of P.W.2 that because of some striking features of the accused, he could identify the accused. Therefore, the identity of the accused as the driver the crime vehicle is not established beyond reasonable doubt. 9. Even assuming for a moment that the accused is the driver of the crime vehicle, even according to P.W.2, the deceased was crossing the road suddenly and in such a case it may not be possible for the driver of the vehicle to control the vehicle. On this aspect, it is pertinent to refer to a decision in Mahadeo Hari Lokre v. The State of Maharashtra[1], wherein it is held: “If a person suddenly crosses the road, the Bus Driver, however, slowly he may be driving, may not be in a position to save the accident. Therefore, it will not be possible to hold that the Bus Driver was negligent.” 10. Therefore, considering these aspects, the trial Court rightly acquitted the accused. None of the findings is shown to be perverse or contrary to the evidence on record. So, there are no compelling or substantial reasons to interfere with the order of acquittal passed by the trial Court. 11. The Criminal Appeal is devoid of merit and is, accordingly, dismissed at the stage of admission, confirming the judgment dated 24.03.2006 in C.C. No.445 of 2004 on the file of the Judicial Magistrate of First Class, Mahabubnagar. ------------------- (K.C.Bhanu, J.) 10.2.2010 Drk THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 250 OF 2010 Date: 10.2.2010 Between: State of A.P. rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …Petitioner And Mohd. Nayeemuddin, s/o. Mohd. Khaja …Respondents THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 250 OF 2010 10.2.2010 [1] AIR 1972 Supreme Court 221