THE HONOURABLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No.666 of 2003 JUDGMENT: This Criminal Revision Case, filed under Sections 397 and 401 Cr.P.C., is directed against the judgment, dated 02.05.2003, in Crl.A.No.123 of 2002 on the file of the V Additional District and Sessions Judge, Ranga Reddy District, at L.B.Nagar, whereunder and whereby the judgment, dated 16.07.2002, in C.C.No.463 of 1997 on the file of the Additional Judicial Magistrate of First Class, Hyderabad (East/North), Ranga Reddy District at L.B.Nagar, was confirmed as regards the conviction of the petitioner-accused of the offence under Section 304-A I.P.C., modifying the sentence from rigorous imprisonment for six months to simple imprisonment for three months while confirming the fine of Rs.5,000/-. 2. The brief facts of the case that are necessary for disposal of the Criminal Revision Case may be stated as under: - On 20.01.1997, at about 1.45 pm., the accused being driver of the lorry bearing No.APV-1738, drove the same in a rash and negligent manner, and overtook P.W- 2 who was peddling the cycle towards Amberpet, and dashed a pedestrian by name Kumar who was walking on the left side of the road margin from behind, as a result, he fell down and received injuries. Thereafter, the accused fled away. P.W-2 took the injured-Kumar to the Police Station, and lodged a complaint, and from there, the police took the injured to the hospital, where he succumbed to the injuries. P.W-7 took up investigation and prepared the rough sketch of the scene of offence and the scene of offence panchanama, conducted inquest on the dead body of the deceased in the presence of P.W-3 and also prepared inquest panchanama. P.W-5-Medical Officer, who conducted post-mortem on the dead body of the deceased, opined that the deceased died due to the blunt injury to head and chest. After completion of the investigation, the Police filed the charge sheet. 3. When the accused was examined under Section 251 Cr.P.C. for the offence punishable under Section 304- A I.P.C., he denied the offence and pleaded not guilty and claimed to be tried. 4. In order to substantiate its case, the prosecution examined P.Ws.1 to 7 and got marked Exs.P-1 to P.7. On behalf of the accused, neither oral nor documentary evidence was adduced. 5. The trial Court accepting the evidence of P.W-2 found the accused guilty of the offence punishable under Section 304-A I.P.C. and accordingly, convicted and sentenced him, as stated above. On appeal, the lower appellate Court confirmed the conviction while modifying the sentence, as stated above. Hence, the present Criminal Revision Case. 6. Now, the point for determination is whether the judgments of both the Courts below are correct, legal and proper? 7. Learned counsel appearing for the petitioner- accused contended that P.W-2 is a stranger to the accused and no test identification parade was conducted and therefore, the identification of the accused by P.W-2 for the first time in the Court is valueless. He further contended that P.W-2 could not be an eye-witness to the said accident, as there is a material discrepancy in his evidence with regard to the place where the accident took place and therefore, he prays to set aside the conviction and sentence imposed on the petitioner-accused. 8. On the other hand, learned counsel, representing the learned Public Prosecutor, contended that the concurrent findings recorded by both the Courts below need not be interfered with as none of the findings is shown to be illegal or incorrect, and hence, he prays to dismiss the Criminal Revision Case. 9. There cannot be any dispute that the revisional powers of this Court under Sections 397 and 401 of Cr.P.C., are truncated. Unless the findings are shown to be illegal, incorrect or improper, ordinarily, this Court would not interfere with the same. Similarly, this Court would not sit over as if in an appeal to re-appreciate the evidence. However, to test whether the findings recorded by both Courts below are correct or not, it is necessary to refer to the evidence adduced by the prosecution. 10. To bring home the guilt of the accused for the offence under punishable Section 304-A I.P.C, the prosecution has to establish that there was a rash or negligent driving on the part of the driver of the crime lorry i.e., the accused. It is to be noted that rashness does not consist of high speed but consists of not taking proper care and caution in driving the vehicle and not following the rules of road safety. Negligence, on the other hand, is gross culpable neglect or failure to exercise such care and caution, which is necessary, while driving a vehicle within the town limits. 11. P.W-5-the Medical Officer, who conducted autopsy on the dead body of the deceased, opined that the deceased died as a result of the injuries sustained by him in the accident. 12. The entire case of the prosecution rests upon the solitary testimony of P.W-2. His presence at the time of accident is quite probable and natural because he set the criminal law into motion by lodging a complaint in the Police Station. The First Information Report shows that the crime lorry hit the deceased, who was walking on the left side of the road, from behind. Whereas the scene of offence panchanama and the rough sketch would go to show that the accident took place on the right side of the road. So, according to the learned counsel for the petitioner-accused it is a material discrepancy, which will go to the root of the case. But, that aspect has been considered by both the Courts below in arriving to the conclusion that some irregularity was committed by the investigating officer in not noting down the actual physical features of scene of occurrence and therefore, reliance was placed only on the evidence of P.W-2. 13. The said finding recorded by both the Courts below cannot be said to be illegal or incorrect. The evidence given by a witness in the Court is a substantive piece of evidence. Nothing has been elicited to discredit the testimony of P.W-2. The evidence of P.W-2 is very clear that the deceased was walking on the left side of the road. In such a case, there is no reason for the accused being driver of the crime lorry to dash the deceased who was going on the left side of the road. Negligence by itself is a rash act in those circumstances. 14. Coming to the aspect of identification of the accused by P.W-2 for the first time in the Court, learned counsel appearing for the petitioner-accused placed reliance on Piginaraji Ranga Rao V. State of Andhra Pradesh, wherein this Court held as under: - “In such circumstances, it is obligatory on the part of the Investigating Officer to elicit the descriptive particulars of the accused from the witnesses and to hold Test identification Parade, which would establish the case of the prosecution beyond all reasonable doubt. When a witness, who had no prior acquaintance with the accused and who had seen the accused for the first time, for a few seconds, states to the police that he can identify the accused, the Investigating Officers should take steps for holding the Test Identification Parade, wherein the given case, the witnesses had considerable time and opportunity to observe the offender, the situation would be different. When the witnesses identified the accused in the Test Identification Parade and also before the Court, then there may not be any doubt to accept the evidences of such witnesses with regard to the identity of the accused and the same establishes the identity of the accused.” 15. The purpose of holding test identification is to test the memory of the witness who has seen the accused only once. When the witness had no prior acquaintance with the accused, the Investigating Officer shall give requisition to the Magistrate concerned to hold test identification parade. It is possible for the witness to identify the accused in case the physical features of the accused are imprinted in his mind so that he could recollect the same and identify him at a later point of time. When P.W-2 identified the accused as the driver of the crime lorry, no question was put to him as to how he could be in a position identify the accused after a lapse of long time. The accident took place at 11.30 am i.e., in the broad daylight. Therefore, there was every scope or possibility for P.W-2 to see the accused clearly and identify him at a later point of time. Therefore, the above decision relied upon by the learned counsel for the petitioner-accused has no application to the facts and circumstances of the case. Further, no suggestion was put to P.W-2 that the accused was not driving the crime lorry at the relevant point of time of the accident. Practically, the evidence of P.W-2 remained unchallenged. That is the reason why both the Courts below placed reliance on the evidence of P.W-2 and found the accused guilty of the offence punishable under Section 304-A I.P.C. None of the findings recorded by both the Courts below is shown to be either perverse or contrary to law, therefore, absolutely there are no grounds to interfere with the impugned judgment and accordingly, the Criminal Revision Case is liable to be dismissed. 16. In the result, the Criminal Revision Case is dismissed, confirming the judgment, dated 02.05.2003, in Crl.A.No.123 of 2002 on the file of V Additional District and Sessions Judge, Ranga Reddy District, at L.B.Nagar, _____________________ JUSTICE K.C.BHANU 5th December 2009 dr