HONOURABLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No. 35 OF 2010. DATED 21ST JANUARY, 2010. BETWEEEN State of AP. Rep. By The Public Prosecutor … Appellant and Jinkala Satyam ….Respondent HONOURABLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No. 35 OF 2010 JUDGMENT: 1. This Criminal Appeal, under Section 378 (3) & (1) of the Criminal Procedure Code, 1973, (for brevity, ‘the Cr.P.C.’) is directed against the judgment dated 11.01.2005 made in C.C.No. 194 of 2002 on the ﬁle of the Judicial Magistrate of First Class, Peddapalli, whereunder and whereby, the respondent/accused was found not guilty of the oﬀence punishable under Section 304-A IPC and acquitted under Section 255 (1) Cr.P.C. 2. The brief facts that are necessary for the disposal of the present Criminal Appeal may be stated as follows: On 19.03.2002 at about 10 A.M. while the deceased V.Chakradhar, who was studying second year Engineering course in Mother Theresa Engineering College, at Peddapalli, was crossing the road at SRSP Camp bus stage after getting down the bus to go to college, lorry bearing Registration number AP-36U- 1888 being driven by the respondent/accused in rash and negligent manner, dashed the said Chakradhar, due to which, he sustained severe injury to his head and died on the spot. On the basis of the report given by P.W.1-father of the deceased, P.W.6 registered a case in Crime No. 51 of 2002 for the oﬀence under Section 304-A IPC and issued FIR. After completion of formalities, the dead body was sent for autopsy. On 22.03.2002 at 11 A.M. the respondent/accused surrendered before PW.6, who arrested and sent him to Court for judicial remand. On completion of investigation, P.W.6 ﬁled charge sheet against the accused for the offence under Section 304-A IPC. 3. When the respondent/accused was examined under Section 251 Cr.P.C., he denied the oﬀence, pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 to 8 and got marked Exs.P.1 to P17. No evidence, either oral or documentary, was adduced on behalf of the respondent/accused. 5. The trial Court, after considering the evidence, both oral and documentary brought on record, came to the conclusion that the prosecution had failed to establish the identity of the accused as the driver of the crime lorry beyond doubt and accordingly acquitted him of the oﬀence punishable under Section 304-A IPC. 6. Now, the point for determination is whether the prosecution proved its case beyond all reasonable doubt against the respondent/accused for the oﬀence punishable under Section 304-A IPC and whether the judgment of the trial Court is correct, legal and proper? 7. The learned Public Prosecutor appearing on behalf of the appellant/State submitted that the trial Court ought not to have rejected the evidence of P.W.3 eyewitness to the accident merely on the ground that it is not possible for him to witness the incident from 150 yards. He further submitted that the trial Court ought to have appreciated the medical evidence in support of the prosecution case and hence he prays to set aside the impugned order of acquittal and convict the accused. 8. 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 passed by the trial Court. Unless there are substantial or compelling reasons, this Court will not ordinarily disturb the ﬁndings of the trial Court. If the trial Court has given any perverse ﬁnding, then it can be a ground to interfere with the order of acquittal. Similarly, if admissible evidence has not been taken into consideration or inadmissible evidence has been looked into for the purpose of arriving at a particular ﬁnding, then also it can be said to be a compelling reason to interfere with the same. 9. Late Dr.A.Pochamallu conducted autopsy over the dead body of the deceased and issued Post-Mortem Report Ex.P.16. However, the prosecution did not examine him as he was no more. But, the prosecution examined P.W.7-Dr.K.Pramod Kumar, who knows the handwriting and signature of late Dr.A.Pochamallu. It is the case of the prosecution that P.W.7-Dr. K.Pramod Kumar proved the cause of death by examining him. But the trial court based on the decision of this Court in the case of Gurvindapalli Anna Rao Vs. State of A.P. { 2003(2) ALD (Crll.) 60 (AP)} held that since the port- mortem report is marked through P.W.7 who did not depose about the injuries found on the person of the deceased during autopsy, the evidence with regard to the cause of death of the deceased is not suﬃcient. It is to be seen that Ex.P.16- Post-mortem certiﬁcate was issued by late Dr. A. Pochamallu. Since, he died, P.W.7- Dr.K.Pramok Kumar, who knows handwriting and signature of the late Dr.A.Pochamallu was examined. As such, under Section 32(2) of the Indian Evidence Act, 1872, it can be relied on. Section 32(2) of the Evidence Act reads as follows: “32. CASE IN WHICH STATEMENT OF RELEVANT FACT BY PERSON WHO IS DEAD OR CANNOT BE FOUND etc IS RELEVANT:- Statements, written or verbal, of relevant facts, made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases. (1) WHEN IT RELATES TO CAUSE OF DEATH: Xxxx xxxxx Xxxx xxxxx ( 2 ) OR IS MADE IN COURSE OF BUSINESS: When the statement was made by such person in the ordinary course of business and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him.” 10. Post-mortem Certiﬁcate given by Late Dr. A.Pochamallu was in discharge of his professional duty. When Ex.P.16 was marked through him as the person, who conducted autopsy over the dead body, it is clearly admissible in evidence. P.W.7 though was not the person who conducted autopsy, but he knows handwriting and signature of late Dr.A.Pochamallu. No doubt, he did not speak about the injuries on the dead body of the deceased. But P.W.7 knows the signature and handwriting of Dr.A.Pochamallu and therefore Ex.P.16 was properly marked through a competent person and it can be rightly relied on. Therefore, the finding of the trial Court on this aspect is perverse. 11. With regard to the identity of the driver of the crime vehicle, it is to be seen in this case that while causing the accident, there was only one witness P.W.3 who identiﬁed the driver of the vehicle. Admittedly, he saw the driver from a distance of 150 yards while he was running away, immediately after stopping the lorry at a distance of 10 feet from the scene of occurrence of accident. Further, P.W.3 identiﬁed the accused after lapse of two years. Admittedly, the accused is a stranger to P.W.3 and in such circumstances, the police ought to have conducted the test of identiﬁcation parade immediately after the accident. P.W.3 has not stated in speciﬁc averment that he can identify the accused even after lapse of two years. His evidence with regard to identiﬁcation of the accused as the driver of the crime lorry could not be believed in view of the fact that it is normally very diﬃcult and impossible to identify the driver of the lorry from a distance of 150 yards. Further more, P.W.3 is a co-student of the deceased and there is no other eyewitness and as such the interested testimony of P.W.3 cannot be believed. In such circumstances, the trial Court has rightly not placed reliance on the evidence of P.W.3. 12. Further, the Investigating Oﬃcer did not collect any documentary evidence, like trip sheet of the lorry, Certiﬁcate of Registration of the crime lorry or any other documentary evidence to show that the accused was the driver of the crime lorry at the relevant point of time of the accident. Therefore, the ﬁnding of the trial Court on this aspect is not perverse inasmuch as the identity of the accused was not established as a person who drove the vehicle at the relevant point of time of accident. Hence, the trial court rightly acquitted the accused inasmuch as the prosecution failed to prove the identity of the accused as driver of the crime lorry at the relevant point of time. So, in these circumstances, the respondent/accused is entitled to benefit of doubt. 13. For the foregoing discussion, the trial Court has rightly acquitted the accused and the judgment of the trial Court does not call for any interference in this Criminal Appeal by this court. There are no compelling or substantial reasons to interfere with the order of the acquittal. 14. In the result, the Criminal Appeal is dismissed at the admission stage, conﬁrming the judgment dated 11.01.2005 made in C.C.No. 194 of 2002 on the file of the Judicial Magistrate of First class, Pedappalli. ---------------------------------- JUSTICE K.C. BHANU DATED 21ST JANUARY, 2010. Msnr.