IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE FOURTEENTH DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1367 OF 2009 Between: The Sate of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Appellant/Petitioner AND Tharlla Ramesh ..... Respondent/Accused The Court made the following: JUDGMENT: The criminal appeal, under Section 378 (3) & (1) of the Code of Criminal Procedure, 1973, is directed by the State against the judgment, dated 26.07.2007, in C.C.No.112 of 2006, on the file of the learned Judicial First Class Magistrate, Nakerakal, whereunder and whereby the accused was found not guilty of the offences punishable under Sections 337 and 338 IPC. 2. Brief facts that are necessary for disposal of the present criminal appeal may be stated as follows: On 28.04.2006 at about 4.00 p.m., when P.Ws.2 and 3 were coming to Kattangoor on a motorcycle from Nalgonda, the accused being the driver of the auto bearing No.AP 24 V 3474 drove the auto in opposite direction and dashed to the motorcycle. As a result, both P.Ws.2 and 3 sustained injuries. On the report given by P.W.1, the police registered a case. The police observed the scene of occurrence and prepared Ex.P2-Panchanama with regard to the scene of offence. P.Ws.2 and 3 were sent to the Government hospital, Nalgonda. They were examined by P.W.7. After completion of investigation, the police filed the charge sheet. 3. The accused was examined under Section 251 of the Code of Criminal Procedure, 1973, for the offences punishable under Sections 337 and 338 of IPC. He denied the allegations levelled against him in complaint as false, pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws.1 to 8 and got marked Exs.P1 to P5. 5. After closure of the prosecution evidence, the accused was examined under Section 313 of the Code of Criminal Procedure, 1973, with reference to the incriminating material found against him in the evidence of prosecution witnesses. He denied the same. On behalf of the accused, no evidence either oral or documentary was adduced. 6. The trial Court, upon appreciation of evidence on record, came to the conclusion that the identity of the accused as a driver of the auto in causing the accident was not established and accordingly, he was acquitted. Hence, this criminal appeal is filed by the State. 7. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt against the accused of the charges under Sections 337 and 338 IPC and whether the judgment of the trial Court is correct, legal and proper? 8. Heard the counsel representing the learned Public Prosecutor. 9. An accident has taken place on 28.04.2006 at about 4.00 p.m., while P.Ws.2 and 3 were going on a motorcycle. An auto bearing No.AP 24 V 3474 came in the opposite direction of P.Ws.2 and 3 and dashed against the motorcycle. As a result, P.Ws.2 and 3 fell down and sustained injuries. 10. P.W.7 is the doctor who examined P.W.2 and found two lacerated injuries and two abrasions. On examination of P.W.3, P.W.7 found four abrasions. According to P.W.7-doctor, the lacerated injuries sustained by P.W.2 are grievous in nature. 11. The prosecution has to establish that the respondent/accused as a driver of the auto bearing No.AP 24 V 3474 drove the auto rashly and negligently. P.Ws.2 and 3 are said to be the eye witnesses to the accident. Admittedly, P.W.1 is not the eye witness. After coming to know that P.W.3 has sustained injuries, came to the place of accident and shifted the injured to the Government Hospital, Nalgonda, in another auto. Later, he came to know that the accused was the driver of the said auto. As admittedly, he was not present at the time of the accident. He cannot be said to be a witness that the accused was driving the vehicle at the time of accident. There is no evidence how he came to know that the accused was driving the vehicle at the relevant point of time of accident. 12. P.W.2 said to be the injured witness who categorically stated that immediately after the accident, he lost his consciousness. Therefore, he did not observe the driver of the auto but he heard that one Ramesh was driving the auto. 13. The only other evidence available on record is the evidence of P.W.3. He identified the accused as the driver of the vehicle. But he did not state before the police when he was examined that he had seen the driver of the auto. He admitted that he has not personally seen the accused at the time of accident as he lost his consciousness after the accident. He admitted that at the instance of police, he identified the accused as the driver of the auto. Therefore, his evidence cannot be accepted in view of his improvements made by him. 14. P.W.4 is another witness examined by the prosecution but he did not say anything about the accident or with regard to the accused driving the auto. The other evidence on record is only formal in nature. As the identity of the person who caused the accident is not established, the trial Court rightly acquitted the accused. There are no grounds to interfere with the same. Hence, the criminal appeal is devoid of merit and is liable to be dismissed. 15. Accordingly, the Criminal Appeal is dismissed at the stage of admission confirming the Judgment, dated 26.07.2007, in C.C.No.112 of 2006, on the file of the learned Judicial I Class Magistrate, Nakerakal. ______________ (K.C. BHANU, J) Date: 14th September, 2009 KL