* THE HON’BLE SRI JUSTICE B.N.RAO NALLA + Criminal Revision Case No.100 of 2007 % Dated 31.01.2011 B e t w e e n: # Amarthaluri John Kennedy, s/o.George, r/o. Avulavaripalem, Kolluru Mandal, Guntur District Revision Petitioner. A n d $ State of Andhra Pradesh rep. by Public Prosecutor, High Court of A.P., Hyderabad. - - - Respondent ! Counsel for the Revision Petitioner: Sri C.Praveen Kumar ^ Counsel for Respondent. : Public Prosecutor < GIST : > HEAD NOTE : ? Cases referred : --- HON’BLE SRI JUSTICE B.N. RAO NALLA Crl.R.C.No.100 of 2007 ORDER: This Criminal Revision Case is filed by the accused against the judgment, dated 23.6.2006 in Criminal Appeal No.164 of 2004 on the file of the XI Additional District & Sessions Judge, Fast Track Court, at Tenali, Guntur, whereby the conviction and sentence imposed on the accused by the learned Judicial Magistrate of First Class, Repalle, by judgment dated 02.4.2004 in C.C.No.22 of 2003, was confirmed. 2. The prosecution case in brief is that on 26.02.2003 at about 1.30 p.m. the deceased was going on his cycle to his village, while so, a lorry bearing No.ADG 279 came at high speed from behind driven in a rash and negligent manner by its driver and dashed against the cycle and ran over the cyclist causing severe injuries. PWs 2 to 6 who are eye witnesses to the accident along with PW.1 removed the injured to the Super Speciality Hospital at Guntur for treatment. However, he succumbed to the injuries while undergoing treatment there. Cherukupalli P.S. registered a case in Crime No.8/2003 under Section 338 IPC against the lorry driver. However, after the death of the injured, the provision of law was changed to 304-A IPC. 3. In support of the prosecution, PWs 1 to 16 were examined and Exs.P.1 to P.18 were marked besides marking M.O.1. However, no witness was examined and no documents were marked on behalf of the defence. 4. Taking into consideration the evidence of prosecution witnesses, other material on record and based on the trip sheet- Ex.P.12 filed by PW.12-owner of the accident vehicle, the trial court gave a finding that the accused was the driver of the accident vehicle at the time of the accident. Further, based on the evidence of PWs 2 and 3, who are stated to be eye witnesses to the accident, the trial court gave a finding that the accident had occurred due to rash and negligent driving on the part of the accused leading to serious injuries being suffered by the deceased in the said accident and as such the trial court by its impugned order convicted and sentenced the accused to undergo rigorous imprisonment for one year and to pay a fine of Rs.750/-, in default, simple imprisonment for 1 ½ months for the offence under Section 304-A and also sentenced to pay a fine of Rs.250/-, in default, simple imprisonment for 15 days for the offence under Section 134 read with 187 of Motor Vehicles Act. 5. Being aggrieved by the said conviction and sentence, the accused filed Criminal Appeal No.164 of 2004 before the XI Additional District & Sessions Judge, Fast Track Court, at Tenali, Guntur. The learned Sessions Judge, after hearing both sides and appreciating the material on record, dismissed the said appeal confirming the conviction and sentence imposed by the trial Court, through judgment dated 23.6.2006. Being aggrieved by the same, the present Criminal Revision Case is filed inter alia on the following grounds. That the ingredients of Section 304-A IPC were not established; that identity of the accused as driver of the accident vehicle was not established; that the court failed to appreciate that PWs 1 to 3 were interested witnesses; that non-examination of the Cleaner of the accident lorry was fatal to the prosecution case; that both the courts below failed to consider that the evidence of PW.1 was in the nature of hearsay and that the accused was not rash and negligent in driving the lorry at the time of the accident. 6. Heard the learned counsel for the revision petitioner- accused and the learned Public Prosecutor for State. 7. It is contended on behalf of the revision petitioner- accused that PWs 2 and 3 who are examined as eye witnesses to the accident have clearly stated that they did not see the driver at the time of the accident. PW.2 has stated that he did not observe the driver, whereas PW.3 has stated that he has not seen the lorry driver at all and both of them have stated that they were not examined by the Police. it is also in their evidence that the lorry was at average speed at the time of the accident, but they have testified that they saw the deceased coming on a bicycle and also the lorry from behind him and dashing against the cycle causing severe bodily injuries and that though he was removed to hospital at Guntur, but he could not be saved as he succumbed to the injuries while undergoing treatment. 8. It is contended that in view of the evidence of PWs 2 and 3 to the effect that they did not see the accused as driver of the accident lorry at the time and place of the accident, it cannot be said that the accused was the driver of the accident vehicle. It is also contended that since PWs 4, 5 and 6 who are also examined as eye witnesses to the accident, had turned hostile. They did not support the case of the prosecution and they were declared hostile. PW.7 is son of the deceased. He was not an eye witness to the accident. PW.8 is an independent witness. He is resident of Cherukupalli. He was examined as one of the mediators to Ex.P.5-observation of scene of offence along with one Surendra babu. PW.9 is resident of Tummalapalem. He was related to the deceased and he was examined as one of the inquest panchas at the hospital. PW.10 is medical witness who treated the deceased initially for the injuries alleged to have been suffered by him in the motor vehicle accident. His evidence is to the effect that at the time of admission, the deceased was unconscious, there was bleeding from nose and there was haemorrhage due to the skull injury and his death is alleged to be due to the same. The evidence of PWs 7 to 10 does not in any way prove the case of the prosecution that the accused was driver at the time of the accident; that due to his rash and negligent driving, the accident occurred and that the deceased suffered serious injuries in the said accident. PW.11 is the first I.O. who stated as to the investigation done by him into the case. PW.12 is the owner of the accident lorry. The evidence of PW.12 is that on the date of the accident he was out of station; that he did not know the accused- driver and that broker on that day had appointed the driver temporarily. However, the said broker was not examined. It is to be observed that as per the prosecution case, it is PW.12- owner of the accident lorry who took the petitioner-accused to the Police station and handed over to Police stating that he was the driver of the lorry at the time of the accident. It is through him Ex.P.12- trip sheet was marked. Based on which, the trial court decided that the revision petitioner-accused was the driver of the accident vehicle at the time of the accident. At the time of marking the said exhibit, PW.12, who was recalled for further chief examination, has admitted that the said exhibit was not filled with the name of the driver. PW.13 is the Associate Professor attached to Forensic Medicine, Medical College, Guntur. His evidence is to the effect that he conducted autopsy on requisition over the dead body of the deceased and issued Ex.P.13 wherein he opined that the death was due to head injury. PW.14 is the Motor Vehicle Inspector who had inspected the accident lorry and issued Ex.P.14 wherein he opined that accident was not due to any mechanical defect in the vehicle. PW.15 is Police Constable who shifted the dead body of the deceased from Super Speciality hospital to Government hospital at Repalle. PW.16 is the last I.O. He has only spoken as to his registering the crime against the revision petitioner-accused for the offence under Section 338 IPC and issuing Ex.P.15- FIR after visiting the scene of offence; that he also examined the prosecution witnesses and that he also prepared Ex.P.16 rough sketch of scene of offence in the presence of mediators. That after receiving the death intimation from the hospital he altered the provision of law from Section 338 to Section 304-A IPC; that subsequently, he also conducted inquest proceedings in the presence of mediators and also examined witnesses thereat. He issued requisition to medical officer as well as Motor Vehicle Inspector. After receiving P.M. report, he arrested the accused on 14.3.2003 on being produced by PW.12- owner of the vehicle. That he also seized Ex.P.12-trip sheet. However, it is to be observed that his evidence differs from the evidence of PW.12-owner of the lorry. In the evidence of PW.12, it is to be found that he was directed by the trial court to produce the trip sheet-Ex.P.12 during the course of his examination in the court, whereas the evidence of PW.16-the last I.O. is to the effect that he had seized Ex.P.12-trip sheet. In any case, the evidence of PW.16 is not supported by the prosecution witnesses inasmuch as PWs 2 and 3 did not speak as to the identity of the lorry driver, whereas PWs 4 to 6 turned hostile and did not support the prosecution case at all. PW.7 is son of the deceased and he was not an eye witness to the accident. PW.8 is mediator to scene of offence, whereas PW.9 is an inquest witness at the hospital, PW.10 is Doctor, PW.11 is first investigating officer, PW.13 is medical witness, PW.14 is Motor Vehicle Inspector and PW.15 is police constable who transmitted the dead body from Super Speciality Hospital to Government hospital. It is not out of place to observe that PW.16 has constantly stuck to his guns in saying that Ex.P.12- trip sheet belongs to the accident vehicle and it is properly filled up in all respects covering the petitioner-accused. 9. When the learned counsel for the revision petitioner was asked as to how long the revision petitioner was in judicial custody, he submitted that on 23.06.2006, the first appellate court confirmed the conviction of the revision petitioner-accused and as such he was taken in to judicial custody on that day itself and he was only released on bail on 22.1.2007. Thus, the revision petitioner-accused was in judicial custody from 23.6.2006 to 22.01.2007 (about 7 months). 10. In the above circumstances, this court is of the view that both the courts below appear to have committed error in convicting and confirming the revision petitioner-accused though there was no material on record sufficient to warrant his conviction since PWs 1 to 3 are interested witnesses, PWs 4 to 6 were turned hostile, PWs 8 and 9 are mediators, PW.10 is medical witness and PWs 11, 13 to 16 are official witnesses. In the circumstances, this court is of the view that the sentence of imprisonment imposed by the trial court and as confirmed by the appellate court may be reduced to the period of sentence already undergone by the accused. 11. In the result, the Criminal Revision Case is accordingly disposed of and the sentence of rigorous imprisonment imposed by the trial court and as confirmed by the appellate court is reduced to the period of sentence already undergone by the accused for the offences punishable under Sections 304-A IPC and Section 134 read with 187 of Motor Vehicles Act. _______________ B.N.RAO NALLA,J 31-01-2011 Note: L.R. copy to be marked. B/o. Stp HON’BLE SRI JUSTICE B.N. RAO NALLA Crl.R.C.No.100 of 2007 9 -01.2011