IN THE HIGH COURT OF JUDICATURE AT HYDERABD FOR THE STATE OF TELANGANA AND STATE OF ANDHRA PRADESH FRIDAY THE TWENTYSIXTH DAY OF SEPTEMBER TWO THOUSAND AND FOURTEEN PRESENT HONOURABLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE NO. 573 OF 2008 Between:
Jami Paidi … Revision Petitioner/Appellant Accused V/s.
The State of Andhra Pradesh Represented by its Public Prosecutor High Court of Judicature at Hyderabad for the State of Telangana & AP .… Respondents/Complainant Counsel for Petitioner : Sri K. Venkat Rao Counsel for Respondents : Public Prosecutor The court made the following : [order follows] HONOURABLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE NO. 573 OF 2008 O R D E R :
This Criminal Revision is against judgment dated 13/03/2008 in Criminal Appeal No. 79 of 2005 on the file of II-Additional Sessions Judge, Srikakulam, whereunder judgment dated 30/07/2005 in CC.No. 309 of 2002 on the file of Judicial Magistrate of First Class, Narsannapeta, Srikakulam district, is confirmed.
2. Brief facts leading to this revision are as follows:
Sub-Inspector of Police, Narsannapeta Police Station filed charge sheet against the accused alleging that on 14/07/2002 one Smt. Pasupureddy Varahalamma went to Kummaripeta village to see her daughter PW-1 and after completion of work on 19/07/2002 at about 04:00 p.m., she was waiting to board a bus infront of the house of PW-1 in order to go to Narsannapeta and at that time a bus bearing No. AP-30T/2246 driven by accused came in a rash and negligent manner without blowing horn, dashed against the said Varahalamma, due to which she died on the spot, PW-1 and her husband witnessed the incident and PW-2 husband of PW-1 informed the incident to Panchayat Secretary PW-7 and on the basis of the same Police registered FIR and investigation revealed that accused is responsible for the accident and liable for offences under section 304-A IPC and section 134-A, 134-B read with section 196 of Motor Vehicles Act, 1988.
3. On these allegations, trial court examined PWs 1 to 7 and marked Exs.P-1 to P-6 on behalf of prosecution besides MO-1. No witness is examined and no document is marked on behalf of accused.
4. On a overall consideration of oral and documentary evidence, trial court found the accused guilty for offence under section 304-A of IPC and sentenced him to suffer one year Rigorous Imprisonment with a fine of Rs.500/- and found him not guilty for offences under section 134-A, 134-B, 196 and 177 of the Motor Vehicles Act and acquitted him of the said charges.
5. Aggrieved by the said conviction, accused preferred appeal to the Court of Session, Srikakulam district and II-Additional Sessions Judge, Srikakulam on a re-appraisal of evidence confirmed the conviction and sentence. Now aggrieved by the same, present criminal revision is preferred.
6. Heard both sides.
7. Advocate for Revision Petitioner submitted that the main plea of accused before trial court and appellate court is that he is not the driver of bus and he is no way concerned with the accident. But both trial court and appellate court considering the evidence of PWs 1 and 2 convicted Revision Petitioner holding that he is the bus driver. He submitted that the name of the accused is not referred in any of the documents marked on behalf of prosecution; particularly the complaint given by PW-7. He further submitted that Investigating Officer, who conducted investigation, is not examined by the prosecution and when this objection was raised before the appellate court the same is negatived on the ground it is not fatal to the prosecution case. He submitted that when there is a dispute with regard to driver of crime vehicle, non-examination of Investigating Officer is fatal. He further submitted that PW-5 was examined on behalf of prosecution to show that Revision Petitioner is the driver of crime vehicle but he has not supported the prosecution case, on the other hand, he deposed that one Rama Rao is the driver of bus bearing No. AP-30-T/2246. He submitted that the material on record is not sufficient to prove the guilt of accused beyond all reasonable doubt, both trial court and appellate court by simply accepting the evidence of PWs 1 and 2, who are interested witnesses convicted Revision Petitioner and that the same is liable to be set aside.
8. On the other hand, learned Public Prosecutor submitted that PW-1 clearly identified the accused and it is sufficient to prove that accused is the driver of crime vehicle on the date of accident. He submitted that the objection with regard to non-examination of Investigating Officer was urged before appellate court and the appellate court negatived the same with valid reasons and that there are no grounds to interfere with the concurrent findings.
9. Now the point that arises for my consideration is,“Whether the judgments of the courts below are legal, proper and correct ?”
10. P O I N T : According to prosecution, the accident was on 19/07/2002 at about 04:00 p.m. Out of seven witnesses examined; PW-1 is the daughter of the deceased; PW-2 is son-in-law of the deceased i.e., husband of PW-1; PW-3 is the son of the deceased; PW-4 is the Medical Officer, who conducted post-mortem examination; PW-5 is the owner of bus; PW-6 is the Motor Vehicle Inspector, who inspected the crime vehicle and PW-7 is the Panchayat Secretary, who gave complaint to police. In the complaint given by PW-7, which is marked as Ex.P5, only bus number is mentioned and the name of driver or name of the accused is not referred in it.
11. According to prosecution, PW-5 is the owner of bus and he deposed that he has got two buses and for one bus Mr.K.Rama Rao is driver and for the second bus Mr.Jagga Rao is the driver. He specifically stated that he do not know that his bus was involved in the accident till he received summons from the court. He was treated hostile and his 161 Cr.P.C. statement is marked as Ex.P-3. He denied the suggestion that he produced the accused and the records relating to his bus before Station House Officer, Narsannapeta. As seen from the suggestion put to PW-5 the contention of prosecution is that PW-5 produced the accused before Station House Officer, Narsannapeta along with bus records. Admittedly, those records are not marked on behalf of prosecution and as seen from the charge sheet Investigating Officer arrested the accused on 23/07/2002 at 09:00 a.m. at Police Station and verified the records of the bus and thereafter forwarded him to the court for judicial custody. So this suggestion to PW-5 is contra to charge sheet allegations. Further as seen from the statement of PW-5 he was informed about the accident by his driver but in the evidence he stated that till he received summon from court he is not aware that his bus was involved in the accident.
12. Learned Public Prosecutor contended that the report of Motor Vehicle Inspector disclose the name of accused as ‘driver’ of crime vehicle and this Ex.P-4 accident report is sufficient to show that accused is the driver of crime vehicle.
13. I have perused the Motor Vehicle Inspector’s report which is marked as Ex.P-4 in column 16 (b) it is meant for mentioning the name and address of driver. The name of Revision Petitioner is shown but in column no. 17 the Motor Vehicle Inspector is expected to give the particulars of driving licence but no such details are given and only mentioned as “authorised to drive heavy motor vehicles”. If really the accused was driver of bus, being Motor Vehicle Inspector he is supposed to mention the particulars of driving licence which would clearly reveal the name and also it will contain photograph but the very absence of mentioning driving licence particulars in Ex.P4 throw any amount of doubt as to the correctness of verification of facts by Motor Vehicle Inspector. Therefore, the contention of learned Public Prosecutor that the evidence of PW-6 and Ex.P4 would show that the accused is the driver of crime vehicle cannot be accepted.
14. As seen from the record, Investigating Officer is not examined during trial. The learned appellate Judge discarded the objection of defence on the ground that there are contradictions or omissions in the evidence of prosecution witnesses and therefore his non-examination is not fatal but here defence of accused is that he is not the driver of bus. When such is the case, it is for the Investigating Officer to explain as to how he connected Revision Petitioner to the crime vehicle. According to charge sheet, Investigating Officer has verified relevant documents. But no documents are marked to show that Revision Petitioner was driver of the bus on the date of accident. Trip sheet of the bus would be relevant document to show who was the driver, but no trip sheet is marked. So the evidence of PW-6 with regard to identity of the accused is not corroborated and supported by any other independent witness particularly documentary evidence. Further FIR is not marked in this case and in the FIR the Investigating Officer or the person who registered the FIR is expected to record the details of the accused or if details are not available the same has to be mentioned.
15. But here the FIR it is not marked because of non-examination of Investigating Officer. When the evidence of PW-5 is contra to the prosecution case, examination of Investigating Officer is very much essential but prosecution failed on this aspect. These aspects throw any amount of doubt as to the correctness of prosecution case and both trial court and appellate court lost sight of these aspects and convicted the Revision Petitioner simply relying on the evidence of PWs 1 and 2 which in my view is not correct.
16. For the above reasons, I am of the view, that conviction recorded against Revision Petitioner is not legal and that he is entitled for acquittal. Accordingly, this Criminal Revision is allowed and judgments of the courts below are set aside and the Revision Petitioner is acquitted for the charge under section 304-A of IPC and his bail bonds shall stand cancelled and fine amount shall be refunded to him.
1 6 . As a sequel, miscellaneous petition if any, pending in this Criminal Petition shall stand closed.
JUSTICE S. RAVI KUMAR .
26/09/2014
I s L
HONOURABLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE NO. 573 OF 2008 Circulation No. Date: 26/09/2014 Court Master : I s L Computer No. 43