THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No. 140 OF 2010 JUDGMENT: This Criminal Appeal, under Section 378(1) and (3) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’), by the State, is directed against the Judgment, dated 25.09.2008 in C.C. No. 304 of 2008 on the file of the V Additional Judicial Magistrate of I Class, Kakinada, whereunder and whereby the respondent-accused was found not guilty of the offence punishable under Section 304-A of the Indian Penal Code (for short, ‘I.P.C.’). 2. The brief facts that are necessary for disposal of the Appeal may be stated as follows: On 23.06.2005 at about 08.00 a.m., the accused drove his van bearing Registration No. AP 37U 299 in a rash and negligent manner and dashed against one Anukula Papa (hereinafter referred to as ‘the deceased’), as a result of which, she sustained severe head injury and abrasions all over her body. Thereafter, mother of the deceased (P.W.2) and others were shifting her to a hospital, she succumbed to her injuries on the way. Based on the report given by P.W.2, police visited the scene of offence and observed the same. The Investigating Officer held inquest over the body of the deceased and opined that she died of head injury. The dead body was subjected to autopsy. The Motor Vehicle Inspector inspected the vehicle in question and opined that the accident was not caused due to any mechanical defects in the vehicle. 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, pleaded not guilty and claimed to be tried. 4. In support of its case, the prosecution examined ten witnesses, P.Ws.1 to 10 and got marked 15 documents i.e. Exs.P1 to P15. No evidence either oral or documentary was adduced on behalf of the accused. 5. After appreciating the evidence on record, the trial Court came to the conclusion that the prosecution failed to establish that the accused was driving the crime vehicle in a rash and negligent manner at the time of accident and caused the accident and accordingly, acquitted him. Challenging the same, the present Appeal is filed by the State. 6. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt for the offence alleged against the accused and whether the judgment of the trial Court is correct, legal and proper? 7. The learned counsel representing the learned Public Prosecutor contended that the evidence of P.Ws.4 and 5 would clearly go to show that the accused was driving the crime vehicle at the time of accident and hence, she prays to set aside the order of acquittal. 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. Unless a finding is shown to be improper or not based upon any admissible evidence, ordinarily, this Court would not interfere with the same. In short, there must be compelling or substantial reasons to interfere with the same. 9. There is no dispute about the occurrence of the accident and holding inquest on the body of the deceased by the Investigating Officer. Similarly, there is no dispute that P.W.8, doctor, who conducted autopsy on the body of the deceased, opined that the deceased died as a result of the multiple injuries and the head injury caused in a road accident. The Motor Vehicle Inspector, who inspected the vehicle, also opined that the accident was caused not due to any mechanical defects of the vehicle. 10. In order to convict the accused, it must be proved by the prosecution that the accident was occurred due to rash or negligent driving of the vehicle by the accused. P.Ws.2 and 3,who are mother and paternal uncle of the deceased, did not support the case of the prosecution. P.Ws.4 and 5 are said to be the eye witnesses to the accident. They are strangers to the accused. Therefore, the prosecution is obliged to conduct a test identification parade, so as to test the memory of P.Ws.4 and 5 with regard to the identity of the accused or identity of the person who was driving the vehicle at the time of accident. These two witnesses identified the accused for the first time in the Court. No doubt, the evidence given by the witnesses in the Court is substantive evidence. But when the accused is not known to the witnesses prior to the accident, it is for the prosecution witnesses to say as to how they could be in a position to identify the driver of the crime vehicle. The accident took place on 23.06.2005 and nearly two years thereafter P.Ws.4 and 5 identified the accused for the first time in the Court as the driver of the crime vehicle. It is not their case that because of some striking features of the accused, they could be in a position to identify him or that the physical features of the accused are imprinted in their mind so as to recollect the same and identify him at a later point of time. Therefore, the identification of the accused for the first time after lapse of two years by P.Ws.4 and 5 has not been rightly accepted by the trial Court. The said finding cannot be shown to be perverse. It is based upon proper appreciation of the evidence on record. Except the identity of the accused by these two witnesses, the Investigating Officer neither seized any documents relating to the vehicle, namely trip sheet, certificate of registration nor examined the owner of the vehicle to show that the accused was appointed by him to drive the crime vehicle and he was driving the vehicle at the relevant point of time of the accident. Except the oral testimony of P.Ws.4 and 5 with regard to the identity of the accused as the driver of crime vehicle, there is absolutely no other evidence connecting him with the commission of offence. Perhaps that is the reason why the trial Court rightly acquitted the accused. 11. The appeal is devoid of merit and the same is accordingly dismissed at the stage of admission, confirming the judgment dated 25.09.2008 in C.C.No. 304 of 2008 on the file of the V Additional Judicial Magistrate of I Class, Kakinada. ---------------------- (K. C. BHANU, J) 1st February 2010 ksld