Sri. G.ramagopal

BEFORE THE COURT OF SESSIONS:: CHITTOOR DIVISION

In the Court of the Special Sessions Judge-cum-IV Additional District

and Sessions Judge, Tirupati

Present: Sri G. Rama Gopal Special Sessions Judge-cum- IV Additional Sessions Judge, Tirupati

Thursday, the Twenty Fifth (25th) day of June, Two thousand Twenty

Criminal Appeal No. 99 of 2018 C. C. No. 26 of 2013 (On the file of VI Additional Junior Civil Judge-Cum- Special Magistrate, Tirupathi)

Between: Budda Ayyappa … Appellant/ Accused And: The State rep. by the Inspector of Police, Tiruchanur Police Station. … Respondent

Judgment in Criminal Appeal No. 99 of 2018

From which court the appeal is VI Additional Junior Civil Judge- preferred Cum- Special Magistrate, Tirupathi

Number of the case in that C.C. No. 26 of 2013 Court Number of the appeal before C.A. No. 99 of 2018 this court

Name and description of the Budda Ayyappa S/o B. appellant. Radhakrishna, Hindu, aged about 30 years, residing at beside Rajesh Apartments, Giripurak, Tirupati, Chittoor District.

The offences under which theU/Sec.304-A IPC and U/Sec. trial court passed order. 134(a), (b) r/w Sec. 187 of M.V. Act and Sec. 3 r/w 181 of M.V. Act. In the result, the accused is found guilty for the offence punishable U/Sec. 304-A IPC and U/Sec. 134(a), (b) r/w Sec. 187 of M.V. Act and Sec. 3 r/w 181 of M.V.Act and the accused is convicted U/Sec. 255 (2) Cr.P.C. and sentenced to under go simple imprisonment for the period of one year and also sentenced to pay a fine of Rs. 1,000/- and in default to suffer simple imprisonment for the period of three months for the offence U/Sec. 304-A IPC and the accused is further sentenced to pay a fine of Rs. 500/- 2 and in default to suffer simple imprisonment for the period of one month for the offence punishable U/Sec. 134(a) (b) r/w Sec. 187 of M.V.Act and the accused is further sentenced to pay a fine of Rs. 500/- and in default to suffer simple imprisonment for the period of one month for the offence punishable U/Sec. 3 r/w Sec. 181 of M.V. Act. The detention of accused during the enquiry or trial shall be set off U/Sec. 428 Cr.P.C.

Whether the appeal confirmed,In the result, the Appeal is partly modified or reversed, ifallowed. modified, the modification.

Date of presentation :27-04-2018

Date of admission :27-04-2018

Date of hearing :25-06-2020

Date of sentence or order : 25-06-2020

This criminal appeal coming on 25-06-2020 for final hearing

before me in the presence of Sri T. Nagabhushanam, Advocate for

appellant and of Smt M.K. Vijayalakshmi, Additional Public Prosecutor

for respondent and the matter having stood over for consideration till

this day, this court delivered the following:

:: J U D G M E N T ::

This criminal appeal is filed by the appellant- Accused U/Sec.

374(3) of Cr.P.C. against the Judgment of conviction and sentence of VI

Additional Junior Civil Judge-Cum- Special Magistrate, Tirupathi in C.C.

No. 26 of 2013 dated 03-04-2018, where by and where under, the appellant- Accused was convicted U/Sec. 255(2) Cr.P.C for the offence punishable U/Sec. 304-A IPC and U/Sec. 134(a) (b) r/w Sec. 187 of M.V.Act and Sec. 3 r/w 181 of M.V. Act and sentenced to under go simple imprisonment for the period of one year and also sentenced to pay a fine of

Rs. 1,000/- and in default to suffer simple imprisonment for the period of three months for the offence U/Sec. 304-A IPC and the accused is further 3 sentenced to pay a fine of Rs. 500/- and in default to suffer simple imprisonment for the period of one month for the offence punishable U/Sec.

134(a) (b) r/w Sec. 187 of M.V.Act and the accused is further sentenced to pay a fine of Rs. 500/- and in default to suffer simple imprisonment for the period of one month for the offence punishable U/Sec. 3 r/w Sec. 181 of M.V.

Act. The detention of accused during the enquiry or trial shall be set off

U/Sec. 428 Cr.P.C.

2) For the sake of convenience, the parties herein after referred to as arrayed in the trial court.

3) In brief, the prosecution case is as follows: On 23-06-2012 at about 9.00 PM between Brfahmanapattu-Padipeta village near Satya

Sai Wines, Tirupati Rural Mandal, wherein the accused being the driver of auto( herein after referred as offending vehicle) bearing registration

No. AP-03-Y-6987, drove the same in a rash and negligent manner without taking any due care and caution, as a result of which, Amudala

Bharath Kumar, who is travel ling by sitting by the left side of driver of auto, slipped from the auto, fell down on the ground due to which he sustained internal injuries, he was shifted to his house, on 14-06-2012, then he was shifted to SVIMS Hospital, Tirupati and got admitted for treatment, later he was shifted to Government General Hospital,

Chennai for better treatment, but he could not survive from the injuries and died on 25-06-2012 at about 4.50 AM while undergoing treatment in Government General Hospital, Chennai.

Based on the complaint of PW-1, a case in Cr.No. 109/2012

U/Sec. 304-A IPC was registered by PW-9, the then Assistant Sub

Inspector of Police, Tiruchanur Police Station on 25-06-2012 at about 9.30 AM. PW-9 examined PWs 1 to 5 and other witnesses and recorded 4 their statements U/Sec. 161 (3) Cr.P.C. and he also conducted inquest over the dead body of the deceased from 1.30 PM, concluded at 3.00

PM on 25-06-2012 in the presence of inquest panchayathdars vide

Ex.P-5 and prepared rough sketch of the scene vide Ex. P-9 and sent the dead body for autopsy.

During the course of further investigation, on 20-07-2012 at about 11.30 AM at Tiruchanur Police Station, PW-9 arrested the accused produced by PW-5. PW-7 the Assistant Motor Vehicle Inspector,

Tirupati inspected the crime vehicle, issued M.V.I. Report vide Ex.P-6 opined that the accident occurred not due to any mechanical defects of the vehicle and further on the report of PW-7, RTA authorities imposed fine of Rs. 4,700/- to the owner of the vehicle for irregularities and allowing the accused driver to drive the vehicle without having any valid license, at the time of commission of offence vide Proceedings

No. R3/1276867 dated 06-07-2012 of RTA, Tirupati. LW-13/Dr.

S.Saravanan, the Assistant Professor, Madras Medical college, Chennai conducted autopsy over the dead body of the deceased and issued postmortem examination certificate, opined that the deceased died due to head injuries and subsequently after completion of investigation, P.W-9 laid charge sheet against the accused for the offences stated above. Hence, the offences.

4) Cognizance was taken by the III learned Additional Judicial

Magistrate of 1st Class, Tirupati against the Accused for the offence

punishable U/Sec. 304-A IPC and U/Sec. 134(a) (b) r/w Sec. 187 of

M.V.Act and U/Sec. 3 r/w 181 of M.V. Act.

5) After appearance of the accused before the trial court, the accused was furnished copies of documents as contemplated U/Sec.

5 207 Cr.P.C., and he was also examined U/Sec. 251 Cr.P.C. by the trial court, the sum and substance of the accusation for the offence U/Sec.

304-A IPC U/Sec. 134(a) (b) r/w Sec. 187 of M.V.Act and U/Sec. 3 r/w 181 of M.V. Act was read over and explained to him in vernacular language and he pleaded not guilty and claimed to be tried.

6) In order to substantiate it’s case, the prosecution examined PWs 1 to 9 and got marked Exs. P1 to P-10.

7) On being closed the prosecution evidence, the incriminating circumstances in the testimonies of prosecution witnesses were explained to the accused U/Sec. 313 Cr.P.C, for which, the accused denied the incriminating circumstances against him and he also did not adduce any defense evidence.

8) Having considered the evidence of prosecution witnesses, defence plea and material placed before it, the trial court found the accused guilty for the offences U/Sec. 304-A IPC U/Sec. 134(a) (b) r/w

Sec. 187 of M.V. Act and U/Sec. 3 r/w 181 of M.V. Act. and convicted the accused U/Sec. 255(2) Cr.P.C stated supra.

9) Heard the learned counsel for the accused as well as the learned

Additional Public Prosecutor through video conference. I have also

carefully scrutinized the oral and documentary evidence on record relied upon by both parties apart from bestowing my anxious consideration to the rival contentions of the parties.

10) Now the points that would arise for determination are that

1. Whether the prosecution could bring home the guilty of the appellant/Accused for the offences U/Sec.304-A IPC and U/Sec. 134(a) (b) r/w Sec. 187 of M.V. Act and U/Sec. 3 r/w 181 of M.V. Act. ?

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2. Whether the verdict of conviction and sentence of the accused by the trial court is contrary to law and the lower court failed to appreciate the evidence in proper prospective and same is liable to be set aside or confirmed or modified?

11) Sri T.Nagabhushanam, the learned counsel for the accused would submit that the accused is innocent and has not committed any offences alleged by the prosecution and he was falsely implicated for claiming compensation. He would further submit that the trail court failed to appreciate the oral and documentary evidence in correct perspective and gave wrong Judgment by convicting the accused for the offence U/Sec. 304-A IPC and other M.V. Act, provisions without there being any evidence as to accused drove the offending vehicle either rashly or negligently and caused the incident, resulting the death of the deceased. He would further submit that no witnesses deposed against the accused that he drove the offending vehicle in a rash and negligent manner and caused the accident. The learned counsel for the accused would further submit that absolutely there is no cogent, reliable and trustworthy evidence to believe the prosecution case, and if at all the court believes the prosecution case, the accused had already under gone 120 days imprisonment and same may be given set off. The learned counsel for the accused by discussing the oral and documentary evidence relied upon by the prosecution, sought to acquit the accuse for all the offences leveled against the accused or alternatively request the court to modify the sentence and give set off for the period had already under gone by the accused during remand and trial.

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12)Per contra, the learned Additional Public Prosecutor fairly conceded that there was no cogent, reliable and trustworthy evidence that the accused drove the vehicle in a rash and negligent manner and caused the accident, resulting the death of the deceased and as such there is no material to believe the prosecution case that the accused committed the offence U/Sec. 304-A IPC. The learned Additional Public

Prosecutor would further submit that the prosecution could prove the offences U/Sec. 134(a) (b) r/w Sec. 187 of M.V.Act and U/Sec. 3 r/w 181 of M.V. Act and as such the accused can be convicted for the said offences. The learned Additional Public Prosecutor by discussing the oral and documentary evidence relied upon by the prosecution would finally left to the discretion of the court either to allow the appeal or dismiss the appeal.

13) Points 1 and 2: Points one and two can be discussed and decided conjointly as they are interrelated.

PW-1 is the defacto complainant, who gave Ex. P-1, PW2 is mother of the deceased, PW-3 is the friend of deceased, PWs-4 and 8 are the eye witnesses for the accident, PW-5 is the owner of the offending vehicle, PW-6 is the inquest panchayathdar, PW-7 is the then

Assistant Motor Vehicle Inspector, Tirupati, who inspected the crime vehicle and issued MVI report and PW-9 is the then Assistant Sub

Inspector of Police, Tiruchanur Police Statin, who did most of the investigation.

Out of 9 witnesses examined by the prosecution, PWs 1, 3 to 5 and 8 became hostile and infavoured to the prosecution case.

14. Before adverting, analyzing and appreciating the evidence of prosecution witnesses, the evidence of P.Ws 1, 2, 3,7 and 9 who are 8 material witnesses and investigation officer can be extracted as under for better appreciation of the facts.

PW-1 has deposed that in the month of June, 2012 on one day sister (Saraswathi) telephoned him and informed that her son Bharath sustained injury and his friend and auto driver took her son and leaving at home and went away and immediately, he rushed to his sister’s house situate at Chinthakayala Street, Tirupati and shifted the injured to SVIMS Hospital, Tirupati and he came to know that his sister’s son Bharath sustained head injury and on the advice of Doctors, they again shifted the injured to

Chennai Hospital and on the same day he informed to her sister that Bharath was died, while he was undergoing treatment at Chennai Hospital. PW-1 has further deposed that later he came to know that the deceased Bharath went to Puttur along with his friend Charan for taking certificates from his college by his friend auto and on return near Vadamalapeta Dabha, Padipeta, Bharath fell on the road from auto and sustained injuries and without informing about injury, the friends of Bharath left the

Bharath in his house and later he went to the police station and presented Ex.P-1 report.

PW-2 has deposed that on 23-06-2012 her son went to Puttur College in accused auto for knowing his results at about 11.30 AM or 12.00 Noon and at about 10.00 or 10.30

PM, the accused brought his son and leaving his son in his house and went away and at that time his son sustained injury on his head and scratches on his body and on the next day at about 4.50 AM, his son suffering with fits, immediately they shifted his son to SVRR GG Hospital and then to SVIMS Hospital, Tirupati and then they shifted the injured to the Chennai G.H. Hospital for better treatment and Doctors stated that his son sustained internal head injury. PW-2 has further deposed that on 25-06-2012 early hours his son died, while he was at Chennai Hospital, he came to know that his son met with road accident at

Padipeta, Pudi road, the accused drove the vehicle in a 9 rash manner at turning, due to which his son, who is sitting beside driver (accused) fell on the road and sustained internal injury on his head.

PW-3 has deposed that on 23-06-2012 at about 8.30

PM himself, deceased Bharath traveling in an auto from

Puttur to Tirupati, when they reached Padipeta village, the deceased who sit on the left side of the driver of the auto trying to sit on the back seat of the auto, due to that the deceased slipped from the auto and fell down on the ground, due to which he sustained head injury and he took the treatment in Chennai Hospital and later he came to know that the injured was died,while undergoing treatment and the accused is the driver of the auto on the date of accident.

PW-7 has deposed that on 5-7-2012, he inspected the crime vehicle in the premises of Tiruchanur Police

Station and found the following damage, front right side indicators damaged and then he conducted road test and found the condition of the break system was road worthy and opined that the accident was not occurred due to any mechanical defect of the vehicle involved in the accident and issued MVI Report vide Ex.P-6.

PW-9 has deposed that on 25.06.2012 at about 09.30am, while he was in police station P.W-1 came to police station and presented Ex.P1, based on the strength of Ex.P1, he registered case in Cr. No. 109/2012, u/sec 304-

A IPC., and submitted F.I.R. to the court, then he visited the

Government Hospital, Chennai, then he received the dead body of the deceased, conducted Inquest, there he examined P.W6 and other witnesses, then he visited the scene of offence and prepared Ex.P9 rough sketch of the scene of offence, then he seized the crime vehicle, that on 20.07.2012 while he was in the police station, P.W5 came to police station and produced the accused along with crime vehicle records i.e., xerox copies of RC, insurance copy and he arrested the accused and obtain sureties and released on station bail, then after receiving P.M.

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Examination report, he laid charge sheet against the accused.

15. It is settled cordinal principle of Criminal Law that the prosecution must prove it’s case beyond reasonable doubt against an offender by adducing cogent, reliable and trustworthy evidence and it should not take weaknesses of defence, if any. The accused has constitutional right to maintain silence throughout the case and it is for the prosecution to produce cogent evidence to prove it’s guilty against the accused by standing upon it’s own legs except in cases where the accused is supposed to prove the facts called upon him under the relevant provision of any statues like plea of alibi, exclusive knowledge etc.

16) In Criminal Cases, appreciation of evidence is one of the first and foremost tests to consider the credibility and reliability of the prosecution version both oral and documentary. The findings of the fact, the question of law and reasons and conclusions of the judges of the Courts culminate into the Judgment in Criminal Cases, mainly based on proper appreciation of evidence. There could not be any canon while appreciating the evidence and it is a matter of principles of Evidence Act and experience of a Judge.

The Hon’ble Apex Court in Rang Bahadur Singh Vs

State of U.P. reported in AIR 2000, S.C. 1209 has held as follows:

“The time tested rule is that acquittal of a guilty person should be preferred to conviction of innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without 11 having at least a reasonable level of certainty that the appellants were the real culprits”

In Mano Dutt and another Vs State of Uttar Pradesh, (2012) 4 S.C.C. 79, in para No. 33, court held as under “The court can convict an accused on the statement of a sole witness, even if he was a relative of the deceased and thus, an interested party. The condition precedent to such an order is that the statement of such witness should satisfy the legal parameters stated by this court in a catena of judgments. Once those parameters are satisfied and the statement of the witness is trustworthy, cogent and corroborated by other evidence produced by the prosecution, oral or documentary than the court would not fall in error of law in relying upon the statement of such witness. It is only when the courts find that the single eye- witness is a wholly unreliable witness that his testimony id discarded in toto and no amount of corroboration can cure its defect”.

17) It is settled law that the appellate Court is empowered to re- appreciate or review the evidence on record. On consideration of the evidence on record, if the appellate Court finds the verdict of the conviction to be perverse or against the settled position of the law, it is duly empowered to set aside the same. On the other hand, if the trial court had appreciated the evidence in right perspective and recorded the findings which are plausible and the view of the trial court does not suffer from perversity, simply because the appellate court comes to a different conclusion on the appreciation of the evidence on record it will not substitute it’s findings to that of finding recorded by the trial court. The paramount consideration of the court should be to avoid miscarriage of justice. A miscarriage of justice, which may arise from the acquittal of the guilty is no less than from the conviction of an innocent.

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Keeping the above legal position in mind, the appeal need to be disposed of.

Section 304-A IPC is extracted infra:

Causing death by negligence:- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punishable with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

In order to prove the offence U/Sec. 304-A IPC against the accused, who involved in motor accident crime causing death of the deceased, the prosecution must prove the following ingredients.

(1) The accused is the driver of the crime vehicle, (2) The crime vehicle is involved in the accident, (3) The accident not occurred due to mechanical defects of the crime vehicle, (4) The death of the deceased is on account of the accident, (5) The accused being the driver of the crime vehicle drove the vehicle in a rash or negligent manner causing death of the deceased.

In the present case on hand, most of the facts are not in dispute in respect of the accident and the main disputed point is only with regard to whether the accused drove the offending vehicle either rash or negligently at the scene of offence and caused the accident, resulting the death of the deceased.

The undisputed facts are that (a) the accused is the driver of offending vehicle at the time of accident (b) the offending vehicle was involved in the accused and (c) The deceased died on account of injuries sustained in the accident and (d) accident was not due to any mechanical defects of crime vehicle.

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As stated above, P.W-1 is not the eye witness for the accident and he only came to know about the accident through mother of the deceased over phone. P.W-1 clearly stated that his sister telephoned him and informed about the accident and thereby he gave Ex.P1 report. It seems, the learned Additional Public Prosecutor having declared PW-1 as hostile witness and cross examined him, but in the cross examination, P.W-1 admitted that he stated before the police, that the driver of the offending vehicle drove the auto with rash and negligent manner and when the auto reached Bramhanapattu,

Padipeta, Tiruchanoor- Pudi road, cross, the deceased, who sat beside the driver of the auto, fell on the road and sustained head injury. P.W1 never deposed before the court that the accused being the driver of the auto drove it in a rash and negligent manner, caused the accident and he was responsible for the accident. Even otherwise, the statement of P.w-1 given to the police u/sec 161(3) Cr.P.C., is not either substantive or corroborative evidence. Therefore, the said testimony of

P.W-1 cannot be relied upon.

P.W2 is the mother of the deceased and she too is not the eye witness for the accident. The testimony of P.W-2 only shows that on 23.06.2012, her deceased son went to the college in the accused auto and accused brought her son with injuries. P.W-2 also never deposed that due to either rashness or negligent act while driving the offending vehicle, the accident caused. Therefore, the testimony of P.W-2 is no way helpful to the prosecution case and her evidence is only hear say evidence.

P.W3, who became hostile deposed that on 23.06.2012 at about 08.30pm, he along with deceased was travelling in an auto from Puttur to Tirupati and when they reached the Padipeta village, the deceased 14 who sat on the left side of the driver of the auto tried to sit on the back seat of the auto, due to which, he slipped from the auto and fell down.

P.W-3 admitted in the cross examination that he was the best friend of the deceased and further the deceased was having habbit of consuming liquor. P.W-3 also admitted that on that day the deceased consumed liquor along with him and further though the driver instructed him not to move from front seat to the back seat, while auto was running, when the deceased tried to go to the back side. P.W-3 also admitted that there was no negligence on the part of the driver of offending vehicle in the accident.

So, the testimony of P.W-3 clearly shows that the accident occurred due to fault of the deceased while moving from one seat to another seat in the auto by consuming liquor.

P.W6 only deposed about the police conducted inquest over the dead body of the deceased vide Ex.P5. The testimony of P.W6 regarding the death of the deceased is a residuary evidence and infact there is no serious dispute about the sustaining of the injuries by the deceased and died.

P.W7 M.V. Inspector deposed that on 05.07.2012 he inspected the offending vehicle in the premises of Tiruchanoor police station, found front right side indicators damaged and gave opinion that the accident was not occurred due to any mechanical defects of the vehicle vide Ex.P6.

As stated above, P.W9 is only the investigating officer, who is not a material witness to the case. So, absolutely, there is no evidence to believe the prosecution case that the accused drove the offending vehicle either with rashness or negligently and caused the accident, 15 resulting the injuries to the deceased and subsequently his death while travelling in the auto. It further appears, from the testimonies of prosecution witnesses, the deceased by consuming liquor while moving from front seat to back seat, fell down and sustained injuries. If that being so, it is very difficult to conclude that the accused committed the offence u/sec 304-A IPC.

As rightly contended by the learned counsel for the accused that the trial court failed to appreciate the oral and documentary evidence in correct prospective and convicted the accused for the offence u/sec 304-A IPC.

Therefore, in the light of above forgoing discussion, I am of the opinion, the prosecution failed to prove its case beyond reasonable doubt against the accused for the offence u/sec 304-A IPC., and as such, he is entitled for acquittal for the offence u/sec 304-A IPC.

As regards, Sec. 134(a) & (b) r/w sec 187 of M.V Act and Sec. 3 r/w sec. 181 of M.V Act, it seems, the accused is admittedly driver of the offending vehicle, he had no valid Driving License to drive the offending vehicle and further he failed to comply the provisions of 134(a) & (b) r/w 187 of M.V Act. Therefore, there is no necessity to interfere in the findings of the trial court in convicting the accused for the offences Sec. 134(a) & (b) r/w sec 187 of M.V Act and Sec. 3 r/w sec. 181 of M.V Act.

Therefore, in the light of above forgoing discussion, I am of the opinion, the appeal can be partly allowed.

24. In the result, the criminal appeal is partly allowed by setting aside the judgment of conviction and sentence passed in CC No. 26 of 16 2013 dated 03.04.2018 by VIA.D.M, Tirupati FOR THE OFFENCE

PUNISHABLE u/sec 304-A ipc., ONLY AND THE APPELNAT/ ACCUSED IS acquitted u/sec 255(1) Cr.P.C., for the offence punishable u/sec 304-A

IPC., and the fine amount if any paid shall be returned after appeal time is over. As regards the conviction and sentence imposed by the trial court, against the appellant/ accused u/sec 134(a) (b) r/w 187 of

M.V Act and Sec. 3 r/w 181 of M.V Act is hereby confirmed. Appeal is disposed of accordingly.

Dictated to the stenographer, transcribed by him, corrected and

pronounced by me in the open Court, this the 25 th day of June, 2020

Special Sessions Judge-cum- IV Additional Sessions Judge, Tirupati

Copy to:

The VI Additional Judicial Magistrate of 1st Class, Tirupati

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BEFORE THE COURT OF SESSIONS :: CHITTOOR DIVISION

In the Court of the Special Sessions Judge-cum-IV Additional District

and Sessions Judge, Tirupati

Present: Sri G. Rama Gopal Special Sessions Judge-cum- IV Additional Sessions Judge, Tirupati

Friday, the Nineteenth (19th) day of June, Two thousand Twenty

Criminal Appeal No. 116 of 2017 C. C. No. 145 of 2015 (On the file of Judicial Magistrate of 1st Class, Srikalahasthi) Between: Gali Chandra… Appellant/ Complainant And:

N. Somasekhar Reddy...Respondent

No.1/Accused The State rep. by Additional Public Prosecutor, Tirupati. … Respondents

Judgment in Criminal Appeal No. 116 of 2017

From which court the appeal is Judicial. Magistrate of First Class, preferred Srikalahasthi.

Number of the case in that C.C. No. 145 of 2015 Court Number of the appeal before C.A. No. 116 of 2017 this court

Name and description of the GaliChandraS/o appellant. G.Anjaneyulu, Hindu, aged about 43 years, residing at Yerpedu H/Wada, Yerpedu village and post, Yerpedu Mandal, Chittoor District.

Under Sections 304-A IPC The offences under which theand U/Sec. 146 r/w 196 and Sec. trial court passed order. 134(a) & (b) r/w 187 of M.V. Act.

In the result, the accused is found not guilty for the offences punishable U/Secs. 304-A IPC and U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act and he is acquitted U/Sec.255 (1) Cr.P.C. The bail bond of the accused shall stands cancelled after six months from the date of this Judgment. Whether the appeal confirmed,In the result, the Appeal is modified or reversed, ifallowed 2 modified, the modification.

Date of presentation :30-01-2017

Date of admission :13-04-2017

Date of hearing :09-06-2020

Date of sentence or order : 09-06-2020

This criminal appeal coming on 09-06-2020 for final hearing

before me in the presence of Sri A. Bhoopathy, Advocate for the

appellant and of Smt M. Vani, advocate for respondent No.1/Accused and Smt M.K. Vijayalakshmi, Additional Public Prosecutor for respondent No.2 and the matter having stood over for consideration till this day, this court delivered the following:

:: J U D G M E N T ::

This criminal appeal is filed by the appellant- defacto complainant U/Sec. 372 of Cr.P.C. to set aside the Judgment of acquittal of Judicial Magistrate of First Class, Srikalahasthi dated 14-10-2016 in

C.C. No. 145 of 2015, where by and where under, the respondent-

Accused was acquitted U/Sec. 255(1) Cr.P.C for the offences punishable

U/Secs. 304-A IPC and U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act and to punish the respondent No.1/ Accused for the said offences.

2) For the sake of convenience, the parties herein after referred to as arrayed in the trial court.

3) In brief, the prosecution case is that the accused is a resident of

Pallipadu village, Mannuru Post, Balayapalli Mandal, Nellore District.

PW-1 is a resident of Yerpedu Harijanawada village, Yerpedu Mandal.

While so, on 10-04-2015 at about 2.30 PM while Gali Anjineyulu (herein after referred to him as deceased ) was proceeding on his cycle to go 3 to Nachaneri village to engage agricultural coolies, when the deceased reached near Berea prathana Mandiram Church, the accused being the driver of Maruthi Suzuku Wagon R Car bearing registration No. AP-26-

AR-5074 proceeding from Venkatagiri side towards Yerpedu, drove the same in a rash and negligent manner and dashed against the deceased cycle, as a result of which, the deceased fell down on the road and sustained severe bleeding injuries on his person and died on the spot. On noticing the same, PW-2 informed to PW-1 over phone.

Then PW-1 and LW-2/ G.Ramakka rushed to the accident spot and noticed that the deceased was found dead.

Based on the complaint of PW-1 on 10-04-2015 at about 4.00 PM,

PW-6, who is the Head Constable of Yerpedu Police Station registered the above case as in Cr. No. 32/2015 U/Sec. 304-A IPC and dispatched

FIR vide Ex. P-5 to the court. During the course of investigation on 10- 04-2015, PW-6 visited the scene of offence and shifted the dead body of the deceased to Area Hospital, Srikalahasthi mortuary and also shifted the crime vehicle to the police station for safe custody.

During the course of further investigation, on 11-04-2105, PW-6 visited the Area Hospital, Srikalahasthi, examined PWs 1 and 2 and other witnesses and recorded their statements U/Sec. 161 (3) Cr.P.C.

and conducted inquest over the dead body of the deceased in the presence of panchayatdars and blood relatives from 7.00 AM to 9.30

AM vide Ex.P3 and sent the dead body for autopsy to Medical Officer,

Area Hospital, Srikalahasthi and then visited the scene of offence and prepared rough sketch vide Ex. P-6 and then PW-6 handed over the CD file to PW-7 the Sub Inspector of Police, Yerpedu Police Station for further investigation.

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During the course of further investigation on 15-04-2015 at about 10.00 AM, LW-7/B. Kalyan Rami Reddy produced the accused along with crime records before PW-7 and then PW-7 examined LW-7/B.

Kalyan Rami Reddy and recorded his statement U/Sec.161 (3) Cr.P.C.

and then PW-7 arrested the accused in the police station and sent the accused to judicial custody. PW-5 who is the Motor Vehicle Inspector,

Srikalahasti inspected the crime vehicle and issued Accident Report vide Ex.P-4 with opinion that the accident occurred was not due to any mechanical defects. PW-8 who is Civil Assistant Surgeon, Area Hospital,

Srikalahasthi held autopsy over the dead body of the deceased and opined that the cause of death is due to “Cerebral Hemorrhage of shock” and subsequently PW7 laid charge sheet for the offences stated above. Hence the charges.

4) Cognizance was taken by the learned Judicial Magistrate of 1st

Class, Srikalahasthi against the Accused for the offences punishable

U/Secs. 304-A IPC and U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act.

5) After appearance of the accused before the trial court, the accused was furnished with copies of documents contemplated U/Sec.

207 Cr.P.C., and he was also examined U/Sec. 251 Cr.P.C. by the trial court, the sum and substance of the accusation for the offences

U/Secs. 304-A IPC and U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act were read over and explained to him in vernacular, he pleaded not guilty and claimed to be tried.

6) In order to substantiate it’s case, the prosecution examined PWs 1 to 8 and got marked Exs. P-1 to P-7.

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7) The accused was examined U/Sec. 313 Cr. P.C. about the incriminating evidence and circumstances by the trial court, the accused denied all the incriminating circumstances against him.

8) Having considered the evidence of prosecution witnesses, defence plea and material placed before it, the trial court found the accused not guilty for the offences U/Secs. 304-A IPC and U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act and acquitted the accused U/Sec. 255(1) Cr.P.C. for all the said offences.

9) Heard the learned counsel for the appellant as well as the learned counsel for the respondent/accused through video conference.

I have also carefully scrutinized the oral and documentary evidence on record relied upon by both parties apart from bestowing my anxious consideration to the rival contentions of the parties.

10) Now the points that would arise for determination are that

(i) Whether the prosecution could bring home the guilty of the appellant/Accused for the offence U/Secs. 304-A IPC and U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act ?

(ii) Whether the impugned Judgment of the trial court is factually and legally correct, liable to be set aside and convict the accused for the said offences or remand the matter to the trial court for fresh disposal or confirmed or modified ?

11) Sri A. Bhoopathy, the learned counsel for the appellant/defacto complainant at the out set would submit that on 10-04- 2015 at about 2.30 PM while the deceased was proceeding on his cycle at the scene of offence, the accused being the driver of the offending vehicle, while proceeding from Venkatagiri side towards Yerpedu drove the same in a rash and negligent manner and hit the deceased, as a result of which, the deceased fell down and sustained injuries and died on the spot. He would further submit that though the prosecution by relying upon the cogent, reliable and trustworthy evidence to prove the offences leveled 6 against the accused, the trial court failed to appreciate the evidence in correct perspective and acquitted the accused for all the offences, instead of convicting him. He would further submit that the trial court did not make any discussion, whether the accused was the driver of the offending vehicle, whether the offending vehicle was involved in the accident and further the trial court also did not discuss or give any reasons in respect of the offences U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act. The learned counsel for the appellant finally would submit that this court being appellant court may allow the appeal by convicting the accused for all the offences alleged against him, or remand the matter to the trial court for fresh disposal.

12) Smt M. Vani, the learned counsel for the accused would submit that the accused was not the driver of offending vehicle, offending vehicle was not involved in the accident and he was falsely implicated.

She would further submit that there is no reliable and trust worthy evidence to believe the prosecution case for the offences leveled against the accused and as such the trial court acquitted the accused for the offence U/Sec. 304-A IPC. The learned counsel for the accused fairly contended that the trial court failed to discuss, whether the accused committed the offences U/Sec. 146 r/w 196 and Sec. 134(a) &

(b) r/w 187 of M.V. Act. She would further submit that the trial court by properly appreciating the oral and documentary evidence relied upon by the parties, correctly acquitted the accused for the offences leveled against him. She would further contend that there is no iota of evidence against the accused to convict him and as such absolutely, there is no necessity to interfere in the Judgment of the trial court and sought to dismiss the appeal by confirming the Judgment of the trial court. The learned counsel for the accused would finally submit that if 7 at all this court intends to remand the matter to the trial court for fresh disposal, the presence of accused may be dispensed.

13) Points 1 and 2:Points one and two can be discussed and decided conjointly as they are interrelated.

Out of 8 witnesses examined by the prosecution, PW 1 is the son of the deceased, who came to know about the accident and lodged Ex.

P-1 report with the police, PW-2 is the grand son of the deceased and eye witness for the accident, PW-3 is the alleged inquest witness, who became hostile, PW-4 is the another inquest witness vide Ex.P-3 inquest report, PW-5 is the Motor Vehicle Inspector, who issued Ex. P-4

MVI report of the offending vehicle, PW-6 is the Head Constable of

Yerpedu Police Station, who registered FIR vide Ex.P-5 on the strength of Ex.P-1, PW-7 is the Sub Inspector of Police, Yerpedu Police Station, who did investigation and PW-8 is the Civil Assistant Surgeon, Area

Hospital, Srikalahasthi, who conducted autopsy over the dead body of the deceased and issued postmortem certificate vide Ex. P-7.

14. Before adverting, analyzing and appreciating the evidence of prosecution witnesses, the evidence of PWs 1, 2, 4 5 and 8, who are material, witnesses can be extracted as under for better appreciation of the facts.

PW1 has deposed that on 10-04-2015 at about 01.30pm, his father went on a bicycle to Nachaneri village after taking meals and at about 2.30 or 2.45 PM, he received a phone call from LW-2/G.Ramakka that his grand father Anjaneyulu met with an accident near Nachaneri village, a car hit over his father and he succumbed to injury on the spot. PW-1 has deposed that he along with LW-2/G.Ramakka went to the spot and saw that a car hit his father and later touched board and he had seen that his father fell on road and sustained injuries on his 8 right forehead, back and right hand and the cycle also damaged due to the hit of the car bearing registration No. AP-26-AR-5074 and on enquiry he came to know that the car which was coming in opposite direction to his father, hit over him and due to that he succumbed to injuries and he also came to know that the driver of the vehicle skulk away from the scene and he gave Ex.P-1 report to the police.

PW-2 has deposed that on 10-04-2015 while he was coming from

Venkatagiri to Yerpedu on his motor bike at about 2.30 PM, when he reached Nachaneri village near Church, at that time Maruti wagoner bearing registration No. AP-23-AR-5074 came from Venkatagiri, in a rash and negligent manner and at that time, he saw his grand father coming on a bicycle from Yerpedu to Nachaneri village and the car which was coming from opposite direction hit the cycle and the person and he saw his grand father was moving in a bicycle from left side of the car, which was coming in opposite direction rashly and lost control and hit the cyclist and as well as a board, which was on the left side and stopped, due to which his grandfather fell on the road and sustained injury on the head, but he could not observe whether it was on the right, left or center of the forehead, his grandfather also received bleeding injury on the right and left hands and also both the legs and succumbed to injuries on the spot and the driver of the car skulk from the scene. PW-2 has deposed that at the time of accident, he had seen the driver and today he has seen the said driver, who was standing in the court hall and immediately, he called his junior paternal uncle ( PW-1) and informed the same and after 15 minutes, they reached the spot on the arrival of PW-1 and 2.

PW-4 has deposed that at about 13 months back in his presence, the police conducted inquest over the dead body of Anjaneyulu at Area 9

Hospital, Srikalahasti and noted down the injuries, during inquest they opined that the deceased died due to the injuries sustained in the road accident and accordingly, the police prepared inquest report vide Ex.P3 and at the time of inquest.

PW-5 has deposed that on 14-04-2015 at about 11.30 AM, he inspected the crime vehicle in the premises of Yerpedu Police Station and he found the damages to the crime vehicle (1) front right side head light damaged (2) bumper damaged (3) front wind screen glass damaged (4) bonnet damaged (5) left side mirror damaged and (6) top body damaged and the condition of the break system was satisfactory and opined that the accident occurred was not due to any mechanical defects of the vehicle and issued Ex.P-4 report.

PW-8 has deposed that on 11-04-2015 between 11.00 AM and 12.30 PM, he conducted autopsy over the dead body of deceased

G.Anjaneyulu and found the following injuries (1) laceration 10x3 c m on th occipital region due to RTA, (2) laceration 5x2 cm on the chest, (3) laceration 3x2 cm on the left side above the eye, (4) laceration 10x3 cm on the right elbow, (5) laceration 12x5 cm from the thigh to the ankle and opined that the cause of death is cerebral hemorrhage and shock and issued postmortem report vide Ex. P-7.

15. Succinctly, the prosecution case is that on 10-04-2015 at about 2.30 PM, while the deceased was moving on a cycle to go to Nachaneri village to engage agricultural coolies and when the deceased reached near Berea Prarthana Mandiram Church, the accused being the driver of offending vehicle while proceeding from Venkatagiri side towards

Yerpedu drove the same in a rash and negligent manner and hit the deceased cycle, resulting which the deceased fell down and sustained 10 bleeding injuries and died on the spot and after knowing about the accident, PW-1 gave Ex.P-1 report, which was the basis for registration of the above crime. Later, PW-6 registered the above crime and conducted inquest over the dead body of the deceased vide Ex.P-3. On 14-04-2015 at about 11.30 AM, PW-5 inspected the crime vehicle in the premises of Yerpedu police station and found certain damages and issued Ex.P-4 report and thereafter PW-7 did further investigation including the arrest of the accused.

Section 304-A IPC is extracted infra:

Causing death by negligence:- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punishable with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

In order to prove the offence U/Sec. 304-A IPC against the accused, who involved in motor accident crime causing death of the deceased, the prosecution must prove the following ingredients.

(1) The accused is the driver of the crime vehicle, (2) The crime vehicle is involved in the accident, (3) The accident not occurred due to mechanical defects of the crime vehicle, (4) The death of the deceased is on account of the accident, (5) The accused being the driver of the crime vehicle drove the vehicle in a rash or negligent manner causing death of the deceased.

It seems, there is no serious dispute about the death of the deceased involved in the motor accident on 10-04-2015 at about 2.30

PM at the scene of offence. The testimony of PWs 1 and 2 clearly evident the fact as to the death of the deceased on the fateful day at the scene of offence due to motor accident. The testimony of PW-4 shows that the police conducted inquest over the dead body of the 11 deceased at Area Hospital, Srikalahasthi vide Ex. P-3 in his presence and some others. The unrebutted evidence of PW-8 shows that he found 5 laceration ante-mortem injuries over the dead body of the deceased stated supra and issued Ex.P-7 report stating that the case of death of deceased was cerebral hemorrhage and shock.

So, it can be held that the deceased died on account of injuries sustained in the motor accident on 10-04-2015 at about 2.30 PM at the scene of offence, while proceeding on his cycle and hit by a car. As stated supra, PW-1 is not a direct eye witness for the accident and his evidence is only hearsay evidence. The prosecution mainly relied upon the evidence of PW-2, who is the eye witness for the accident to prove either negligence or rashness of the accused while driving the offending vehicle. It seems, the defence took specific plea in the trial court by contending that the accused was not the driver of the offending vehicle and the offending vehicle was also not involved in the accident. It seems, the trial court simply extracted the depositions of the witnesses and did not give any reasons and findings as to whether the accused was the driver of the offending vehicle or not and the offending vehicle was involved in the accident or not. When the accused took specific defence that he was not the driver of the offending vehicle and the offending vehicle was not involved in the accident, the trial court was expected to give reasons and findings on the said aspects, but failed to do so. The trail court only mentioned in the Judgment that on verification of inquest wherein the accused counsel cross examined that PW-2 stated to be eye witness not cited in the inquest report at column No. 16 but raised doubt about the presence of PW-2 at the scene and argued that though he was not at the scene, he was implicated in support of the case, which creates some doubt in the mind of the court and further there are 12 contradictory versions of PW-2 and 6 also with other prosecution witnesses.

The way back in 1980, the Apex Court in Shri Swamiji of Shri

Admar Mutt etc., Vs., The Commissioner, Hindu Religious and charitable endowments Dept., and others AIR 1980 SC 1, while giving the majority judgment by C.J.Y.V. Chandrachud referred Legal Maxim.

Ces-sante Ratione Legis Cessat Ipsa Lex “The English version of the said principles given by the Hon’ble chief justice is that: “Reason is the soul of the law, and when the reasons of any particular law ceases, so does the law itself”.

Therefore, the judge is required to record the reason for his decision.

As stated above, the accused was charge sheeted U/Sec. 304-A

IPC and U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act.

By virtue of Sec. 146 of M.V. Act, no person shall use except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless a policy of insurance is obtained.

By virtue of Section 196 of M.V.Act, whoever drives a motor cycle or causes or allows a motor vehicle to be driven in contravention of the provisions of Section 146, shall be punishable with imprisonment which may extend to three months, or with fine which may extend to one thousand rupees or with both.

The driver of offending vehicle is liable to be convicted U/Sec.

187 of M.V. Act for the violation of Section 134 (a) & (b) of M.V.Act.

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The impugned Judgment of the trial court does not through any light whether the prosecution established its case for the offences

U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act. It seems, the trial Judge, since the accused was found not guilty for the offence

U/Sec. 304-A IPC and also acquitted the accused for M.V. Act offences without discussion, reasons and findings though the said M.V. Act offences are separate and independent offences.

Therefore, it can be held that the trial court simply acquitted the accused for the offences U/Sec. 304(A) IPC., and Sec. 146 r/w 196 and

Sec. 134(a) & (b) r/w 187 of M.V. Act without any discussion, reasons and findings. In fact, the learned counsel for the appellant also fairly conceded the same.

The appellant court can order retrial by invoking sec 386(b) of

Cr.P.C., 1973 vide citations; 1.In Mohammed Hussain Vs., State (Government of NCT, Delhi)(2012) 9 SCC 408, three judges.2. Ajay

Kuma Ghosh Vs., State of Bihar (2017) 12 SCC 699

Therefore, having considered the case facts, contentions of the learned counsel for the appellant/ defacto complainant and above reasons, I am of the opinion, the judgment of the trial court is liable to be set aside and matter can be remitted to the trial court for re-trial u/sec 386(b) of Cr.P.C., 1973 for fresh disposal according to law.

25)In the result, the appeal is allowed by setting aside the acquittal of the accused vide Judgment dated 14.10.2016 in CC No. 145/2015 on the file of Judicial Magistrate of 1st Class, Srikalahasthi and the matter is remanded to the trial court for fresh disposal against the accused by invoking U/Sec 386(b) of Cr.P.C. The Trial Court is directed to conclude 14 the trial as expeditiously as possible. The learned Magistrate shall not insist the presence of the accused, when he is represented by an

Advocate, unless the presence of the accused is necessary. The office is directed to cause transmit the entire record within 15 days after duly indexing the entire case file.

The appeal is disposed of accordingly.

Typed to my dictation by the stenographer, corrected and

pronounced by me in the open Court, this the 19th day of June, 2020

Special Sessions Judge-cum- IV Additional Sessions Judge, Tirupati Copy to: The Judicial Magistrate of 1st Class, Srikalahasthi

1

BEFORE THE COURT OF SESSIONS :: CHITTOOR DIVISION

In the Court of the Special Sessions Judge-cum-IV Additional District

and Sessions Judge, Tirupati

Present: Sri G. Rama Gopal Special Sessions Judge-cum- IV Additional Sessions Judge, Tirupati

Friday, the Nineteenth (19th) day of June, Two thousand Twenty

Criminal Appeal No. 116 of 2017 C. C. No. 145 of 2015 (On the file of Judicial Magistrate of 1st Class, Srikalahasthi) Between: Gali Chandra… Appellant/ Complainant And:

N. Somasekhar Reddy...Respondent

No.1/Accused The State rep. by Additional Public Prosecutor, Tirupati. … Respondents

Judgment in Criminal Appeal No. 116 of 2017

From which court the appeal is Judicial. Magistrate of First Class, preferred Srikalahasthi.

Number of the case in that C.C. No. 145 of 2015 Court Number of the appeal before C.A. No. 116 of 2017 this court

Name and description of the GaliChandraS/o appellant. G.Anjaneyulu, Hindu, aged about 43 years, residing at Yerpedu H/Wada, Yerpedu village and post, Yerpedu Mandal, Chittoor District.

Under Sections 304-A IPC The offences under which theand U/Sec. 146 r/w 196 and Sec. trial court passed order. 134(a) & (b) r/w 187 of M.V. Act.

In the result, the accused is found not guilty for the offences punishable U/Secs. 304-A IPC and U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act and he is acquitted U/Sec.255 (1) Cr.P.C. The bail bond of the accused shall stands cancelled after six months from the date of this Judgment. Whether the appeal confirmed,In the result, the Appeal is modified or reversed, ifallowed 2 modified, the modification.

Date of presentation :30-01-2017

Date of admission :13-04-2017

Date of hearing :09-06-2020

Date of sentence or order : 09-06-2020

This criminal appeal coming on 09-06-2020 for final hearing

before me in the presence of Sri A. Bhoopathy, Advocate for the

appellant and of Smt M. Vani, advocate for respondent No.1/Accused and Smt M.K. Vijayalakshmi, Additional Public Prosecutor for respondent No.2 and the matter having stood over for consideration till this day, this court delivered the following:

:: J U D G M E N T ::

This criminal appeal is filed by the appellant- defacto complainant U/Sec. 372 of Cr.P.C. to set aside the Judgment of acquittal of Judicial Magistrate of First Class, Srikalahasthi dated 14-10-2016 in

C.C. No. 145 of 2015, where by and where under, the respondent-

Accused was acquitted U/Sec. 255(1) Cr.P.C for the offences punishable

U/Secs. 304-A IPC and U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act and to punish the respondent No.1/ Accused for the said offences.

2) For the sake of convenience, the parties herein after referred to as arrayed in the trial court.

3) In brief, the prosecution case is that the accused is a resident of

Pallipadu village, Mannuru Post, Balayapalli Mandal, Nellore District.

PW-1 is a resident of Yerpedu Harijanawada village, Yerpedu Mandal.

While so, on 10-04-2015 at about 2.30 PM while Gali Anjineyulu (herein after referred to him as deceased ) was proceeding on his cycle to go 3 to Nachaneri village to engage agricultural coolies, when the deceased reached near Berea prathana Mandiram Church, the accused being the driver of Maruthi Suzuku Wagon R Car bearing registration No. AP-26-

AR-5074 proceeding from Venkatagiri side towards Yerpedu, drove the same in a rash and negligent manner and dashed against the deceased cycle, as a result of which, the deceased fell down on the road and sustained severe bleeding injuries on his person and died on the spot. On noticing the same, PW-2 informed to PW-1 over phone.

Then PW-1 and LW-2/ G.Ramakka rushed to the accident spot and noticed that the deceased was found dead.

Based on the complaint of PW-1 on 10-04-2015 at about 4.00 PM,

PW-6, who is the Head Constable of Yerpedu Police Station registered the above case as in Cr. No. 32/2015 U/Sec. 304-A IPC and dispatched

FIR vide Ex. P-5 to the court. During the course of investigation on 10- 04-2015, PW-6 visited the scene of offence and shifted the dead body of the deceased to Area Hospital, Srikalahasthi mortuary and also shifted the crime vehicle to the police station for safe custody.

During the course of further investigation, on 11-04-2105, PW-6 visited the Area Hospital, Srikalahasthi, examined PWs 1 and 2 and other witnesses and recorded their statements U/Sec. 161 (3) Cr.P.C.

and conducted inquest over the dead body of the deceased in the presence of panchayatdars and blood relatives from 7.00 AM to 9.30

AM vide Ex.P3 and sent the dead body for autopsy to Medical Officer,

Area Hospital, Srikalahasthi and then visited the scene of offence and prepared rough sketch vide Ex. P-6 and then PW-6 handed over the CD file to PW-7 the Sub Inspector of Police, Yerpedu Police Station for further investigation.

4

During the course of further investigation on 15-04-2015 at about 10.00 AM, LW-7/B. Kalyan Rami Reddy produced the accused along with crime records before PW-7 and then PW-7 examined LW-7/B.

Kalyan Rami Reddy and recorded his statement U/Sec.161 (3) Cr.P.C.

and then PW-7 arrested the accused in the police station and sent the accused to judicial custody. PW-5 who is the Motor Vehicle Inspector,

Srikalahasti inspected the crime vehicle and issued Accident Report vide Ex.P-4 with opinion that the accident occurred was not due to any mechanical defects. PW-8 who is Civil Assistant Surgeon, Area Hospital,

Srikalahasthi held autopsy over the dead body of the deceased and opined that the cause of death is due to “Cerebral Hemorrhage of shock” and subsequently PW7 laid charge sheet for the offences stated above. Hence the charges.

4) Cognizance was taken by the learned Judicial Magistrate of 1st

Class, Srikalahasthi against the Accused for the offences punishable

U/Secs. 304-A IPC and U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act.

5) After appearance of the accused before the trial court, the accused was furnished with copies of documents contemplated U/Sec.

207 Cr.P.C., and he was also examined U/Sec. 251 Cr.P.C. by the trial court, the sum and substance of the accusation for the offences

U/Secs. 304-A IPC and U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act were read over and explained to him in vernacular, he pleaded not guilty and claimed to be tried.

6) In order to substantiate it’s case, the prosecution examined PWs 1 to 8 and got marked Exs. P-1 to P-7.

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7) The accused was examined U/Sec. 313 Cr. P.C. about the incriminating evidence and circumstances by the trial court, the accused denied all the incriminating circumstances against him.

8) Having considered the evidence of prosecution witnesses, defence plea and material placed before it, the trial court found the accused not guilty for the offences U/Secs. 304-A IPC and U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act and acquitted the accused U/Sec. 255(1) Cr.P.C. for all the said offences.

9) Heard the learned counsel for the appellant as well as the learned counsel for the respondent/accused through video conference.

I have also carefully scrutinized the oral and documentary evidence on record relied upon by both parties apart from bestowing my anxious consideration to the rival contentions of the parties.

10) Now the points that would arise for determination are that

(i) Whether the prosecution could bring home the guilty of the appellant/Accused for the offence U/Secs. 304-A IPC and U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act ?

(ii) Whether the impugned Judgment of the trial court is factually and legally correct, liable to be set aside and convict the accused for the said offences or remand the matter to the trial court for fresh disposal or confirmed or modified ?

11) Sri A. Bhoopathy, the learned counsel for the appellant/defacto complainant at the out set would submit that on 10-04- 2015 at about 2.30 PM while the deceased was proceeding on his cycle at the scene of offence, the accused being the driver of the offending vehicle, while proceeding from Venkatagiri side towards Yerpedu drove the same in a rash and negligent manner and hit the deceased, as a result of which, the deceased fell down and sustained injuries and died on the spot. He would further submit that though the prosecution by relying upon the cogent, reliable and trustworthy evidence to prove the offences leveled 6 against the accused, the trial court failed to appreciate the evidence in correct perspective and acquitted the accused for all the offences, instead of convicting him. He would further submit that the trial court did not make any discussion, whether the accused was the driver of the offending vehicle, whether the offending vehicle was involved in the accident and further the trial court also did not discuss or give any reasons in respect of the offences U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act. The learned counsel for the appellant finally would submit that this court being appellant court may allow the appeal by convicting the accused for all the offences alleged against him, or remand the matter to the trial court for fresh disposal.

12) Smt M. Vani, the learned counsel for the accused would submit that the accused was not the driver of offending vehicle, offending vehicle was not involved in the accident and he was falsely implicated.

She would further submit that there is no reliable and trust worthy evidence to believe the prosecution case for the offences leveled against the accused and as such the trial court acquitted the accused for the offence U/Sec. 304-A IPC. The learned counsel for the accused fairly contended that the trial court failed to discuss, whether the accused committed the offences U/Sec. 146 r/w 196 and Sec. 134(a) &

(b) r/w 187 of M.V. Act. She would further submit that the trial court by properly appreciating the oral and documentary evidence relied upon by the parties, correctly acquitted the accused for the offences leveled against him. She would further contend that there is no iota of evidence against the accused to convict him and as such absolutely, there is no necessity to interfere in the Judgment of the trial court and sought to dismiss the appeal by confirming the Judgment of the trial court. The learned counsel for the accused would finally submit that if 7 at all this court intends to remand the matter to the trial court for fresh disposal, the presence of accused may be dispensed.

13) Points 1 and 2:Points one and two can be discussed and decided conjointly as they are interrelated.

Out of 8 witnesses examined by the prosecution, PW 1 is the son of the deceased, who came to know about the accident and lodged Ex.

P-1 report with the police, PW-2 is the grand son of the deceased and eye witness for the accident, PW-3 is the alleged inquest witness, who became hostile, PW-4 is the another inquest witness vide Ex.P-3 inquest report, PW-5 is the Motor Vehicle Inspector, who issued Ex. P-4

MVI report of the offending vehicle, PW-6 is the Head Constable of

Yerpedu Police Station, who registered FIR vide Ex.P-5 on the strength of Ex.P-1, PW-7 is the Sub Inspector of Police, Yerpedu Police Station, who did investigation and PW-8 is the Civil Assistant Surgeon, Area

Hospital, Srikalahasthi, who conducted autopsy over the dead body of the deceased and issued postmortem certificate vide Ex. P-7.

14. Before adverting, analyzing and appreciating the evidence of prosecution witnesses, the evidence of PWs 1, 2, 4 5 and 8, who are material, witnesses can be extracted as under for better appreciation of the facts.

PW1 has deposed that on 10-04-2015 at about 01.30pm, his father went on a bicycle to Nachaneri village after taking meals and at about 2.30 or 2.45 PM, he received a phone call from LW-2/G.Ramakka that his grand father Anjaneyulu met with an accident near Nachaneri village, a car hit over his father and he succumbed to injury on the spot. PW-1 has deposed that he along with LW-2/G.Ramakka went to the spot and saw that a car hit his father and later touched board and he had seen that his father fell on road and sustained injuries on his 8 right forehead, back and right hand and the cycle also damaged due to the hit of the car bearing registration No. AP-26-AR-5074 and on enquiry he came to know that the car which was coming in opposite direction to his father, hit over him and due to that he succumbed to injuries and he also came to know that the driver of the vehicle skulk away from the scene and he gave Ex.P-1 report to the police.

PW-2 has deposed that on 10-04-2015 while he was coming from

Venkatagiri to Yerpedu on his motor bike at about 2.30 PM, when he reached Nachaneri village near Church, at that time Maruti wagoner bearing registration No. AP-23-AR-5074 came from Venkatagiri, in a rash and negligent manner and at that time, he saw his grand father coming on a bicycle from Yerpedu to Nachaneri village and the car which was coming from opposite direction hit the cycle and the person and he saw his grand father was moving in a bicycle from left side of the car, which was coming in opposite direction rashly and lost control and hit the cyclist and as well as a board, which was on the left side and stopped, due to which his grandfather fell on the road and sustained injury on the head, but he could not observe whether it was on the right, left or center of the forehead, his grandfather also received bleeding injury on the right and left hands and also both the legs and succumbed to injuries on the spot and the driver of the car skulk from the scene. PW-2 has deposed that at the time of accident, he had seen the driver and today he has seen the said driver, who was standing in the court hall and immediately, he called his junior paternal uncle ( PW-1) and informed the same and after 15 minutes, they reached the spot on the arrival of PW-1 and 2.

PW-4 has deposed that at about 13 months back in his presence, the police conducted inquest over the dead body of Anjaneyulu at Area 9

Hospital, Srikalahasti and noted down the injuries, during inquest they opined that the deceased died due to the injuries sustained in the road accident and accordingly, the police prepared inquest report vide Ex.P3 and at the time of inquest.

PW-5 has deposed that on 14-04-2015 at about 11.30 AM, he inspected the crime vehicle in the premises of Yerpedu Police Station and he found the damages to the crime vehicle (1) front right side head light damaged (2) bumper damaged (3) front wind screen glass damaged (4) bonnet damaged (5) left side mirror damaged and (6) top body damaged and the condition of the break system was satisfactory and opined that the accident occurred was not due to any mechanical defects of the vehicle and issued Ex.P-4 report.

PW-8 has deposed that on 11-04-2015 between 11.00 AM and 12.30 PM, he conducted autopsy over the dead body of deceased

G.Anjaneyulu and found the following injuries (1) laceration 10x3 c m on th occipital region due to RTA, (2) laceration 5x2 cm on the chest, (3) laceration 3x2 cm on the left side above the eye, (4) laceration 10x3 cm on the right elbow, (5) laceration 12x5 cm from the thigh to the ankle and opined that the cause of death is cerebral hemorrhage and shock and issued postmortem report vide Ex. P-7.

15. Succinctly, the prosecution case is that on 10-04-2015 at about 2.30 PM, while the deceased was moving on a cycle to go to Nachaneri village to engage agricultural coolies and when the deceased reached near Berea Prarthana Mandiram Church, the accused being the driver of offending vehicle while proceeding from Venkatagiri side towards

Yerpedu drove the same in a rash and negligent manner and hit the deceased cycle, resulting which the deceased fell down and sustained 10 bleeding injuries and died on the spot and after knowing about the accident, PW-1 gave Ex.P-1 report, which was the basis for registration of the above crime. Later, PW-6 registered the above crime and conducted inquest over the dead body of the deceased vide Ex.P-3. On 14-04-2015 at about 11.30 AM, PW-5 inspected the crime vehicle in the premises of Yerpedu police station and found certain damages and issued Ex.P-4 report and thereafter PW-7 did further investigation including the arrest of the accused.

Section 304-A IPC is extracted infra:

Causing death by negligence:- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punishable with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

In order to prove the offence U/Sec. 304-A IPC against the accused, who involved in motor accident crime causing death of the deceased, the prosecution must prove the following ingredients.

(1) The accused is the driver of the crime vehicle, (2) The crime vehicle is involved in the accident, (3) The accident not occurred due to mechanical defects of the crime vehicle, (4) The death of the deceased is on account of the accident, (5) The accused being the driver of the crime vehicle drove the vehicle in a rash or negligent manner causing death of the deceased.

It seems, there is no serious dispute about the death of the deceased involved in the motor accident on 10-04-2015 at about 2.30

PM at the scene of offence. The testimony of PWs 1 and 2 clearly evident the fact as to the death of the deceased on the fateful day at the scene of offence due to motor accident. The testimony of PW-4 shows that the police conducted inquest over the dead body of the 11 deceased at Area Hospital, Srikalahasthi vide Ex. P-3 in his presence and some others. The unrebutted evidence of PW-8 shows that he found 5 laceration ante-mortem injuries over the dead body of the deceased stated supra and issued Ex.P-7 report stating that the case of death of deceased was cerebral hemorrhage and shock.

So, it can be held that the deceased died on account of injuries sustained in the motor accident on 10-04-2015 at about 2.30 PM at the scene of offence, while proceeding on his cycle and hit by a car. As stated supra, PW-1 is not a direct eye witness for the accident and his evidence is only hearsay evidence. The prosecution mainly relied upon the evidence of PW-2, who is the eye witness for the accident to prove either negligence or rashness of the accused while driving the offending vehicle. It seems, the defence took specific plea in the trial court by contending that the accused was not the driver of the offending vehicle and the offending vehicle was also not involved in the accident. It seems, the trial court simply extracted the depositions of the witnesses and did not give any reasons and findings as to whether the accused was the driver of the offending vehicle or not and the offending vehicle was involved in the accident or not. When the accused took specific defence that he was not the driver of the offending vehicle and the offending vehicle was not involved in the accident, the trial court was expected to give reasons and findings on the said aspects, but failed to do so. The trail court only mentioned in the Judgment that on verification of inquest wherein the accused counsel cross examined that PW-2 stated to be eye witness not cited in the inquest report at column No. 16 but raised doubt about the presence of PW-2 at the scene and argued that though he was not at the scene, he was implicated in support of the case, which creates some doubt in the mind of the court and further there are 12 contradictory versions of PW-2 and 6 also with other prosecution witnesses.

The way back in 1980, the Apex Court in Shri Swamiji of Shri

Admar Mutt etc., Vs., The Commissioner, Hindu Religious and charitable endowments Dept., and others AIR 1980 SC 1, while giving the majority judgment by C.J.Y.V. Chandrachud referred Legal Maxim.

Ces-sante Ratione Legis Cessat Ipsa Lex “The English version of the said principles given by the Hon’ble chief justice is that: “Reason is the soul of the law, and when the reasons of any particular law ceases, so does the law itself”.

Therefore, the judge is required to record the reason for his decision.

As stated above, the accused was charge sheeted U/Sec. 304-A

IPC and U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act.

By virtue of Sec. 146 of M.V. Act, no person shall use except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless a policy of insurance is obtained.

By virtue of Section 196 of M.V.Act, whoever drives a motor cycle or causes or allows a motor vehicle to be driven in contravention of the provisions of Section 146, shall be punishable with imprisonment which may extend to three months, or with fine which may extend to one thousand rupees or with both.

The driver of offending vehicle is liable to be convicted U/Sec.

187 of M.V. Act for the violation of Section 134 (a) & (b) of M.V.Act.

13

The impugned Judgment of the trial court does not through any light whether the prosecution established its case for the offences

U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act. It seems, the trial Judge, since the accused was found not guilty for the offence

U/Sec. 304-A IPC and also acquitted the accused for M.V. Act offences without discussion, reasons and findings though the said M.V. Act offences are separate and independent offences.

Therefore, it can be held that the trial court simply acquitted the accused for the offences U/Sec. 304(A) IPC., and Sec. 146 r/w 196 and

Sec. 134(a) & (b) r/w 187 of M.V. Act without any discussion, reasons and findings. In fact, the learned counsel for the appellant also fairly conceded the same.

The appellant court can order retrial by invoking sec 386(b) of

Cr.P.C., 1973 vide citations; 1.In Mohammed Hussain Vs., State (Government of NCT, Delhi)(2012) 9 SCC 408, three judges.2. Ajay

Kuma Ghosh Vs., State of Bihar (2017) 12 SCC 699

Therefore, having considered the case facts, contentions of the learned counsel for the appellant/ defacto complainant and above reasons, I am of the opinion, the judgment of the trial court is liable to be set aside and matter can be remitted to the trial court for re-trial u/sec 386(b) of Cr.P.C., 1973 for fresh disposal according to law.

25)In the result, the appeal is allowed by setting aside the acquittal of the accused vide Judgment dated 14.10.2016 in CC No. 145/2015 on the file of Judicial Magistrate of 1st Class, Srikalahasthi and the matter is remanded to the trial court for fresh disposal against the accused by invoking U/Sec 386(b) of Cr.P.C. The Trial Court is directed to conclude 14 the trial as expeditiously as possible. The learned Magistrate shall not insist the presence of the accused, when he is represented by an

Advocate, unless the presence of the accused is necessary. The office is directed to cause transmit the entire record within 15 days after duly indexing the entire case file.

The appeal is disposed of accordingly.

Typed to my dictation by the stenographer, corrected and

pronounced by me in the open Court, this the 19th day of June, 2020

Special Sessions Judge-cum- IV Additional Sessions Judge, Tirupati Copy to: The Judicial Magistrate of 1st Class, Srikalahasthi

1

BEFORE THE COURT OF SESSIONS :: CHITTOOR DIVISION

In the Court of the Special Sessions Judge-cum-IV Additional District

and Sessions Judge, Tirupati

Present: Sri G. Rama Gopal Special Sessions Judge-cum- IV Additional Sessions Judge, Tirupati

Friday, the Nineteenth (19th) day of June, Two thousand Twenty

Criminal Appeal No. 116 of 2017 C. C. No. 145 of 2015 (On the file of Judicial Magistrate of 1st Class, Srikalahasthi) Between: Gali Chandra… Appellant/ Complainant And:

N. Somasekhar Reddy...Respondent

No.1/Accused The State rep. by Additional Public Prosecutor, Tirupati. … Respondents

Judgment in Criminal Appeal No. 116 of 2017

From which court the appeal is Judicial. Magistrate of First Class, preferred Srikalahasthi.

Number of the case in that C.C. No. 145 of 2015 Court Number of the appeal before C.A. No. 116 of 2017 this court

Name and description of the GaliChandraS/o appellant. G.Anjaneyulu, Hindu, aged about 43 years, residing at Yerpedu H/Wada, Yerpedu village and post, Yerpedu Mandal, Chittoor District.

Under Sections 304-A IPC The offences under which theand U/Sec. 146 r/w 196 and Sec. trial court passed order. 134(a) & (b) r/w 187 of M.V. Act.

In the result, the accused is found not guilty for the offences punishable U/Secs. 304-A IPC and U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act and he is acquitted U/Sec.255 (1) Cr.P.C. The bail bond of the accused shall stands cancelled after six months from the date of this Judgment. Whether the appeal confirmed,In the result, the Appeal is modified or reversed, ifallowed 2 modified, the modification.

Date of presentation :30-01-2017

Date of admission :13-04-2017

Date of hearing :09-06-2020

Date of sentence or order : 09-06-2020

This criminal appeal coming on 09-06-2020 for final hearing

before me in the presence of Sri A. Bhoopathy, Advocate for the

appellant and of Smt M. Vani, advocate for respondent No.1/Accused and Smt M.K. Vijayalakshmi, Additional Public Prosecutor for respondent No.2 and the matter having stood over for consideration till this day, this court delivered the following:

:: J U D G M E N T ::

This criminal appeal is filed by the appellant- defacto complainant U/Sec. 372 of Cr.P.C. to set aside the Judgment of acquittal of Judicial Magistrate of First Class, Srikalahasthi dated 14-10-2016 in

C.C. No. 145 of 2015, where by and where under, the respondent-

Accused was acquitted U/Sec. 255(1) Cr.P.C for the offences punishable

U/Secs. 304-A IPC and U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act and to punish the respondent No.1/ Accused for the said offences.

2) For the sake of convenience, the parties herein after referred to as arrayed in the trial court.

3) In brief, the prosecution case is that the accused is a resident of

Pallipadu village, Mannuru Post, Balayapalli Mandal, Nellore District.

PW-1 is a resident of Yerpedu Harijanawada village, Yerpedu Mandal.

While so, on 10-04-2015 at about 2.30 PM while Gali Anjineyulu (herein after referred to him as deceased ) was proceeding on his cycle to go 3 to Nachaneri village to engage agricultural coolies, when the deceased reached near Berea prathana Mandiram Church, the accused being the driver of Maruthi Suzuku Wagon R Car bearing registration No. AP-26-

AR-5074 proceeding from Venkatagiri side towards Yerpedu, drove the same in a rash and negligent manner and dashed against the deceased cycle, as a result of which, the deceased fell down on the road and sustained severe bleeding injuries on his person and died on the spot. On noticing the same, PW-2 informed to PW-1 over phone.

Then PW-1 and LW-2/ G.Ramakka rushed to the accident spot and noticed that the deceased was found dead.

Based on the complaint of PW-1 on 10-04-2015 at about 4.00 PM,

PW-6, who is the Head Constable of Yerpedu Police Station registered the above case as in Cr. No. 32/2015 U/Sec. 304-A IPC and dispatched

FIR vide Ex. P-5 to the court. During the course of investigation on 10- 04-2015, PW-6 visited the scene of offence and shifted the dead body of the deceased to Area Hospital, Srikalahasthi mortuary and also shifted the crime vehicle to the police station for safe custody.

During the course of further investigation, on 11-04-2105, PW-6 visited the Area Hospital, Srikalahasthi, examined PWs 1 and 2 and other witnesses and recorded their statements U/Sec. 161 (3) Cr.P.C.

and conducted inquest over the dead body of the deceased in the presence of panchayatdars and blood relatives from 7.00 AM to 9.30

AM vide Ex.P3 and sent the dead body for autopsy to Medical Officer,

Area Hospital, Srikalahasthi and then visited the scene of offence and prepared rough sketch vide Ex. P-6 and then PW-6 handed over the CD file to PW-7 the Sub Inspector of Police, Yerpedu Police Station for further investigation.

4

During the course of further investigation on 15-04-2015 at about 10.00 AM, LW-7/B. Kalyan Rami Reddy produced the accused along with crime records before PW-7 and then PW-7 examined LW-7/B.

Kalyan Rami Reddy and recorded his statement U/Sec.161 (3) Cr.P.C.

and then PW-7 arrested the accused in the police station and sent the accused to judicial custody. PW-5 who is the Motor Vehicle Inspector,

Srikalahasti inspected the crime vehicle and issued Accident Report vide Ex.P-4 with opinion that the accident occurred was not due to any mechanical defects. PW-8 who is Civil Assistant Surgeon, Area Hospital,

Srikalahasthi held autopsy over the dead body of the deceased and opined that the cause of death is due to “Cerebral Hemorrhage of shock” and subsequently PW7 laid charge sheet for the offences stated above. Hence the charges.

4) Cognizance was taken by the learned Judicial Magistrate of 1st

Class, Srikalahasthi against the Accused for the offences punishable

U/Secs. 304-A IPC and U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act.

5) After appearance of the accused before the trial court, the accused was furnished with copies of documents contemplated U/Sec.

207 Cr.P.C., and he was also examined U/Sec. 251 Cr.P.C. by the trial court, the sum and substance of the accusation for the offences

U/Secs. 304-A IPC and U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act were read over and explained to him in vernacular, he pleaded not guilty and claimed to be tried.

6) In order to substantiate it’s case, the prosecution examined PWs 1 to 8 and got marked Exs. P-1 to P-7.

5

7) The accused was examined U/Sec. 313 Cr. P.C. about the incriminating evidence and circumstances by the trial court, the accused denied all the incriminating circumstances against him.

8) Having considered the evidence of prosecution witnesses, defence plea and material placed before it, the trial court found the accused not guilty for the offences U/Secs. 304-A IPC and U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act and acquitted the accused U/Sec. 255(1) Cr.P.C. for all the said offences.

9) Heard the learned counsel for the appellant as well as the learned counsel for the respondent/accused through video conference.

I have also carefully scrutinized the oral and documentary evidence on record relied upon by both parties apart from bestowing my anxious consideration to the rival contentions of the parties.

10) Now the points that would arise for determination are that

(i) Whether the prosecution could bring home the guilty of the appellant/Accused for the offence U/Secs. 304-A IPC and U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act ?

(ii) Whether the impugned Judgment of the trial court is factually and legally correct, liable to be set aside and convict the accused for the said offences or remand the matter to the trial court for fresh disposal or confirmed or modified ?

11) Sri A. Bhoopathy, the learned counsel for the appellant/defacto complainant at the out set would submit that on 10-04- 2015 at about 2.30 PM while the deceased was proceeding on his cycle at the scene of offence, the accused being the driver of the offending vehicle, while proceeding from Venkatagiri side towards Yerpedu drove the same in a rash and negligent manner and hit the deceased, as a result of which, the deceased fell down and sustained injuries and died on the spot. He would further submit that though the prosecution by relying upon the cogent, reliable and trustworthy evidence to prove the offences leveled 6 against the accused, the trial court failed to appreciate the evidence in correct perspective and acquitted the accused for all the offences, instead of convicting him. He would further submit that the trial court did not make any discussion, whether the accused was the driver of the offending vehicle, whether the offending vehicle was involved in the accident and further the trial court also did not discuss or give any reasons in respect of the offences U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act. The learned counsel for the appellant finally would submit that this court being appellant court may allow the appeal by convicting the accused for all the offences alleged against him, or remand the matter to the trial court for fresh disposal.

12) Smt M. Vani, the learned counsel for the accused would submit that the accused was not the driver of offending vehicle, offending vehicle was not involved in the accident and he was falsely implicated.

She would further submit that there is no reliable and trust worthy evidence to believe the prosecution case for the offences leveled against the accused and as such the trial court acquitted the accused for the offence U/Sec. 304-A IPC. The learned counsel for the accused fairly contended that the trial court failed to discuss, whether the accused committed the offences U/Sec. 146 r/w 196 and Sec. 134(a) &

(b) r/w 187 of M.V. Act. She would further submit that the trial court by properly appreciating the oral and documentary evidence relied upon by the parties, correctly acquitted the accused for the offences leveled against him. She would further contend that there is no iota of evidence against the accused to convict him and as such absolutely, there is no necessity to interfere in the Judgment of the trial court and sought to dismiss the appeal by confirming the Judgment of the trial court. The learned counsel for the accused would finally submit that if 7 at all this court intends to remand the matter to the trial court for fresh disposal, the presence of accused may be dispensed.

13) Points 1 and 2:Points one and two can be discussed and decided conjointly as they are interrelated.

Out of 8 witnesses examined by the prosecution, PW 1 is the son of the deceased, who came to know about the accident and lodged Ex.

P-1 report with the police, PW-2 is the grand son of the deceased and eye witness for the accident, PW-3 is the alleged inquest witness, who became hostile, PW-4 is the another inquest witness vide Ex.P-3 inquest report, PW-5 is the Motor Vehicle Inspector, who issued Ex. P-4

MVI report of the offending vehicle, PW-6 is the Head Constable of

Yerpedu Police Station, who registered FIR vide Ex.P-5 on the strength of Ex.P-1, PW-7 is the Sub Inspector of Police, Yerpedu Police Station, who did investigation and PW-8 is the Civil Assistant Surgeon, Area

Hospital, Srikalahasthi, who conducted autopsy over the dead body of the deceased and issued postmortem certificate vide Ex. P-7.

14. Before adverting, analyzing and appreciating the evidence of prosecution witnesses, the evidence of PWs 1, 2, 4 5 and 8, who are material, witnesses can be extracted as under for better appreciation of the facts.

PW1 has deposed that on 10-04-2015 at about 01.30pm, his father went on a bicycle to Nachaneri village after taking meals and at about 2.30 or 2.45 PM, he received a phone call from LW-2/G.Ramakka that his grand father Anjaneyulu met with an accident near Nachaneri village, a car hit over his father and he succumbed to injury on the spot. PW-1 has deposed that he along with LW-2/G.Ramakka went to the spot and saw that a car hit his father and later touched board and he had seen that his father fell on road and sustained injuries on his 8 right forehead, back and right hand and the cycle also damaged due to the hit of the car bearing registration No. AP-26-AR-5074 and on enquiry he came to know that the car which was coming in opposite direction to his father, hit over him and due to that he succumbed to injuries and he also came to know that the driver of the vehicle skulk away from the scene and he gave Ex.P-1 report to the police.

PW-2 has deposed that on 10-04-2015 while he was coming from

Venkatagiri to Yerpedu on his motor bike at about 2.30 PM, when he reached Nachaneri village near Church, at that time Maruti wagoner bearing registration No. AP-23-AR-5074 came from Venkatagiri, in a rash and negligent manner and at that time, he saw his grand father coming on a bicycle from Yerpedu to Nachaneri village and the car which was coming from opposite direction hit the cycle and the person and he saw his grand father was moving in a bicycle from left side of the car, which was coming in opposite direction rashly and lost control and hit the cyclist and as well as a board, which was on the left side and stopped, due to which his grandfather fell on the road and sustained injury on the head, but he could not observe whether it was on the right, left or center of the forehead, his grandfather also received bleeding injury on the right and left hands and also both the legs and succumbed to injuries on the spot and the driver of the car skulk from the scene. PW-2 has deposed that at the time of accident, he had seen the driver and today he has seen the said driver, who was standing in the court hall and immediately, he called his junior paternal uncle ( PW-1) and informed the same and after 15 minutes, they reached the spot on the arrival of PW-1 and 2.

PW-4 has deposed that at about 13 months back in his presence, the police conducted inquest over the dead body of Anjaneyulu at Area 9

Hospital, Srikalahasti and noted down the injuries, during inquest they opined that the deceased died due to the injuries sustained in the road accident and accordingly, the police prepared inquest report vide Ex.P3 and at the time of inquest.

PW-5 has deposed that on 14-04-2015 at about 11.30 AM, he inspected the crime vehicle in the premises of Yerpedu Police Station and he found the damages to the crime vehicle (1) front right side head light damaged (2) bumper damaged (3) front wind screen glass damaged (4) bonnet damaged (5) left side mirror damaged and (6) top body damaged and the condition of the break system was satisfactory and opined that the accident occurred was not due to any mechanical defects of the vehicle and issued Ex.P-4 report.

PW-8 has deposed that on 11-04-2015 between 11.00 AM and 12.30 PM, he conducted autopsy over the dead body of deceased

G.Anjaneyulu and found the following injuries (1) laceration 10x3 c m on th occipital region due to RTA, (2) laceration 5x2 cm on the chest, (3) laceration 3x2 cm on the left side above the eye, (4) laceration 10x3 cm on the right elbow, (5) laceration 12x5 cm from the thigh to the ankle and opined that the cause of death is cerebral hemorrhage and shock and issued postmortem report vide Ex. P-7.

15. Succinctly, the prosecution case is that on 10-04-2015 at about 2.30 PM, while the deceased was moving on a cycle to go to Nachaneri village to engage agricultural coolies and when the deceased reached near Berea Prarthana Mandiram Church, the accused being the driver of offending vehicle while proceeding from Venkatagiri side towards

Yerpedu drove the same in a rash and negligent manner and hit the deceased cycle, resulting which the deceased fell down and sustained 10 bleeding injuries and died on the spot and after knowing about the accident, PW-1 gave Ex.P-1 report, which was the basis for registration of the above crime. Later, PW-6 registered the above crime and conducted inquest over the dead body of the deceased vide Ex.P-3. On 14-04-2015 at about 11.30 AM, PW-5 inspected the crime vehicle in the premises of Yerpedu police station and found certain damages and issued Ex.P-4 report and thereafter PW-7 did further investigation including the arrest of the accused.

Section 304-A IPC is extracted infra:

Causing death by negligence:- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punishable with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

In order to prove the offence U/Sec. 304-A IPC against the accused, who involved in motor accident crime causing death of the deceased, the prosecution must prove the following ingredients.

(1) The accused is the driver of the crime vehicle, (2) The crime vehicle is involved in the accident, (3) The accident not occurred due to mechanical defects of the crime vehicle, (4) The death of the deceased is on account of the accident, (5) The accused being the driver of the crime vehicle drove the vehicle in a rash or negligent manner causing death of the deceased.

It seems, there is no serious dispute about the death of the deceased involved in the motor accident on 10-04-2015 at about 2.30

PM at the scene of offence. The testimony of PWs 1 and 2 clearly evident the fact as to the death of the deceased on the fateful day at the scene of offence due to motor accident. The testimony of PW-4 shows that the police conducted inquest over the dead body of the 11 deceased at Area Hospital, Srikalahasthi vide Ex. P-3 in his presence and some others. The unrebutted evidence of PW-8 shows that he found 5 laceration ante-mortem injuries over the dead body of the deceased stated supra and issued Ex.P-7 report stating that the case of death of deceased was cerebral hemorrhage and shock.

So, it can be held that the deceased died on account of injuries sustained in the motor accident on 10-04-2015 at about 2.30 PM at the scene of offence, while proceeding on his cycle and hit by a car. As stated supra, PW-1 is not a direct eye witness for the accident and his evidence is only hearsay evidence. The prosecution mainly relied upon the evidence of PW-2, who is the eye witness for the accident to prove either negligence or rashness of the accused while driving the offending vehicle. It seems, the defence took specific plea in the trial court by contending that the accused was not the driver of the offending vehicle and the offending vehicle was also not involved in the accident. It seems, the trial court simply extracted the depositions of the witnesses and did not give any reasons and findings as to whether the accused was the driver of the offending vehicle or not and the offending vehicle was involved in the accident or not. When the accused took specific defence that he was not the driver of the offending vehicle and the offending vehicle was not involved in the accident, the trial court was expected to give reasons and findings on the said aspects, but failed to do so. The trail court only mentioned in the Judgment that on verification of inquest wherein the accused counsel cross examined that PW-2 stated to be eye witness not cited in the inquest report at column No. 16 but raised doubt about the presence of PW-2 at the scene and argued that though he was not at the scene, he was implicated in support of the case, which creates some doubt in the mind of the court and further there are 12 contradictory versions of PW-2 and 6 also with other prosecution witnesses.

The way back in 1980, the Apex Court in Shri Swamiji of Shri

Admar Mutt etc., Vs., The Commissioner, Hindu Religious and charitable endowments Dept., and others AIR 1980 SC 1, while giving the majority judgment by C.J.Y.V. Chandrachud referred Legal Maxim.

Ces-sante Ratione Legis Cessat Ipsa Lex “The English version of the said principles given by the Hon’ble chief justice is that: “Reason is the soul of the law, and when the reasons of any particular law ceases, so does the law itself”.

Therefore, the judge is required to record the reason for his decision.

As stated above, the accused was charge sheeted U/Sec. 304-A

IPC and U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act.

By virtue of Sec. 146 of M.V. Act, no person shall use except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless a policy of insurance is obtained.

By virtue of Section 196 of M.V.Act, whoever drives a motor cycle or causes or allows a motor vehicle to be driven in contravention of the provisions of Section 146, shall be punishable with imprisonment which may extend to three months, or with fine which may extend to one thousand rupees or with both.

The driver of offending vehicle is liable to be convicted U/Sec.

187 of M.V. Act for the violation of Section 134 (a) & (b) of M.V.Act.

13

The impugned Judgment of the trial court does not through any light whether the prosecution established its case for the offences

U/Sec. 146 r/w 196 and Sec. 134(a) & (b) r/w 187 of M.V. Act. It seems, the trial Judge, since the accused was found not guilty for the offence

U/Sec. 304-A IPC and also acquitted the accused for M.V. Act offences without discussion, reasons and findings though the said M.V. Act offences are separate and independent offences.

Therefore, it can be held that the trial court simply acquitted the accused for the offences U/Sec. 304(A) IPC., and Sec. 146 r/w 196 and

Sec. 134(a) & (b) r/w 187 of M.V. Act without any discussion, reasons and findings. In fact, the learned counsel for the appellant also fairly conceded the same.

The appellant court can order retrial by invoking sec 386(b) of

Cr.P.C., 1973 vide citations; 1.In Mohammed Hussain Vs., State (Government of NCT, Delhi)(2012) 9 SCC 408, three judges.2. Ajay

Kuma Ghosh Vs., State of Bihar (2017) 12 SCC 699

Therefore, having considered the case facts, contentions of the learned counsel for the appellant/ defacto complainant and above reasons, I am of the opinion, the judgment of the trial court is liable to be set aside and matter can be remitted to the trial court for re-trial u/sec 386(b) of Cr.P.C., 1973 for fresh disposal according to law.

25)In the result, the appeal is allowed by setting aside the acquittal of the accused vide Judgment dated 14.10.2016 in CC No. 145/2015 on the file of Judicial Magistrate of 1st Class, Srikalahasthi and the matter is remanded to the trial court for fresh disposal against the accused by invoking U/Sec 386(b) of Cr.P.C. The Trial Court is directed to conclude 14 the trial as expeditiously as possible. The learned Magistrate shall not insist the presence of the accused, when he is represented by an

Advocate, unless the presence of the accused is necessary. The office is directed to cause transmit the entire record within 15 days after duly indexing the entire case file.

The appeal is disposed of accordingly.

Typed to my dictation by the stenographer, corrected and

pronounced by me in the open Court, this the 19th day of June, 2020

Special Sessions Judge-cum- IV Additional Sessions Judge, Tirupati Copy to: The Judicial Magistrate of 1st Class, Srikalahasthi

BEFORE THE COURT OF SESSIONS :: CHITTOOR DIVISION

In the Court of the Special Sessions Judge-cum-IV Additional District

and Sessions Judge, Tirupati

Present: Sri G. Rama Gopal Special Sessions Judge-cum- IV Additional Sessions Judge, Tirupati.

Monday, the Twenty Second (22nd) day of June, Two thousand Twenty

Criminal Appeal No. 284 of 2018 C. C. No. 302 of 2016 (On the file of II Additional Judicial Magistrate of First Class, Tirupati) Between: C.Gangadhar… Appellant/ A1 And: The State rep. by the Sub Inspector of Police, CCS Tirumala Police Station … Respondent Judgment in Criminal Appeal No. 284 of 2018

From which court the appeal is II Additional Judicial Magistrate of preferred First Class, Tirupati

Number of the case in that C.C. No. 302 of 2016 Court Number of the appeal before C.A. No. 284 of 2018 this court

Name and description of the C.Gangadhar,aged20 appellant. years, S/o Late C.Ramaswamy, D.No.7-14,BabuColony, Neerugattuvaripalli, Madanapalli Mandal, Chittoor District

The offences under which theUnder Sections 457, 380 r/w 511 & trial court passed order. 456 of IPC. In the result, the accused is found not guilty for the offences punishable U/Secs. 457 and 380 r/w 511 IPC and thereby, he is acquitted U/Sec. 248(1) Cr.P.C. Accused is found guilty for the offence punishable U/Sec. 456 IPC and he is convicted U/Sec. 248(2) Cr.P.C. and the accused is sentenced to undergo simple imprisonment for a period of six months and also sentenced to pay a fine of Rs. 200/-, in case of default of fine, he shall under go simple imprisonment for a period of fifteen days for the offence punishable U/Sec. 456 of IPC. Remand period undergone by the 2 accused from 29-3-2016 to 21-4- 2016 shall be set off under Sec. 428 of Cr.P.C. Whether the appeal confirmed, modified or reversed, ifIn the result, modified, the modification. the Appeal is Dismissed

Date of presentation :05-12-2018

Date of admission :05-12-2018

Date of hearing :19-06-2020

Date of sentence or order : 22-06-2020

This criminal appeal coming on 19-06-2020 for final hearing

before me in the presence of Smt S. Thenmoshi, Advocate for appellant

and of Smt M.K. Vijayalakshmi, Additional Public Prosecutor for respondent and the matter having stood over for consideration till this day, this court delivered the following:

:: J U D G M E N T ::

This criminal appeal is filed by the appellant- Accused U/Sec.

374(3) of Cr.P.C. to set aside the Judgment of conviction and sentence of II Additional Judicial Magistrate of First Class, Tirupati in C.C. No. 302 of 2016 dt.15-11-2018, where by and where under, the appellant-

Accused was convicted U/Sec. 248(2) Cr.P.C for the offence punishable

U/Sec. 456 of IPC and sentenced to undergo simple imprisonment for a period of six months and also sentenced to pay a fine of Rs. 200/-, in case of default of fine, he shall under go simple imprisonment for a period of fifteen days for the offence punishable U/Sec. 456 of IPC.

2) For the sake of convenience, the parties herein after referred to as arrayed in the trial court.

3) In brief, the prosecution case is that on 27-3-2016 at about 11.30

PM while PW2 Security Guard, Sector -V, TTD, at Alipiri was on night duty at Padala Mandapam, Alipiri,Tirupati-Tirumala foot-path, the 3 accused entered into Padala Mandapam and attempted to commit theft and thereby PW2 caught hold him red handed and produced before

PW1, the then AV & SO, TTD, Tirupati who sent the accused to CCS

Police Station, Tirumala by lodging Ex. P-1 report. On 28-3-2016 at about 3.00 PM, PW4,, who is Sub Inspector of Police, CCS, Tirumala, registered Ex. P-1 report as Cr. No. 41 of 2016 of CCS, Tirumala for the offence U/Secs. 457 and 380 r/w 511 IPC and dispatched FIR vide Ex.P-

4. Then PW4 arrested the accused, on interrogation, the accused confessed about the offence and then the accused was sent to Judicial custody. Thereafter, PW4 after recording the statements of PWs 1 to 3

U/Sec. 161 (3) Cr.P.C. and after completion of investigation laid charge sheet against the accused for the said offences. Hence the charges.

4) The learned II Additional Judicial Magistrate of 1st Class, Tirupati took the case on file for the offences U/Secs. 457, 380 IPC r/w U/Sec 511 IPC.

5) On appearance of the accused, the copies of documents were furnished to him as contemplated U/Sec. 207 Cr.P.C.

6) The trail court examined the accused U/Sec. 239 Cr.P.C., in respect of the substance of the prosecution and the accused denied the same. On consideration, charges U/Sec 457, 380 r/w 511 IPC were framed by the trail court and explained the same to the accused in his language, for which, he pleaded not guilty and claimed to be tried.

During the course of trial, the trial court additionally framed charge

U/Sec 456 IPC., read over and explained to the accused, for which the accused pleaded not guilty and claimed to be tried.

7) In order to substantiate it’s case, the prosecution examined PWs 1 to 4 and got marked Exs. P1 to P-3.

4

8) The accused was examined U/Sec. 313 Cr. P.C. about the incriminating evidence and circumstances by the trial court, the accused denied all the incriminating circumstances against him. The defence reported, no defence evidence on behalf of the accused.

9) Having considered the evidence of prosecution witnesses, defence plea and material placed before it, the trial court found the accused guilty for the offence U/Sec. 456 IPC. and convicted the accused U/Sec. 248(2) Cr.P.C. as stated above.

10) Heard the learned counsel for the appellant as well as the learned Additional Public Prosecutor through video conference. I have also carefully scrutinized the oral and documentary evidence on record relied upon by both parties apart from bestowing my anxious consideration to the rival contentions of the parties.

11) Now the points that would arise for determination are that;

(i)Whether the prosecution could bring home the guilty of the appellant/Accused for the offence U/Sec.

456 IPC?

(ii)Whether the verdict of conviction and sentence of the accused by the trial court is contrary to law and the lower court failed to appreciate the evidence in proper prospective and same is liable to be set aside?

12) Points 1 and 2: Points one and two can be discussed and decided conjointly as they are interrelated.

Smt Thenmoshi, the learned counsel for the accused/ appellant submitted many points in her grounds of appeal, such as (1) the order of conviction and sentence passed by the lower court is against law, weight of evidence and probabilities of the case and the same is liable 5 to be set aside, (2) the trial court erred in convicting the appellant herein for the offences u/sec 457, 380, 511 and 456 IPC., without considering the provisions of law, any evidence and material and convicted the appellant with all presumptions, assumptions and surmises, (3) the lower court failed to observe the fact the main cause for the above crime is that the accused herein visited Tirumala to have darshan of lord Venkateswara, but the respondent police without hearing the words of the appellant brought to the police station and foisted the case, (4) the lower court failed to consider the fact that there was contra evidence between P.W-1 and other witnesses such as investigation officer etc., (5) the lower court failed to consider that there was no substantive and corroborative piece of evidence and failed to use its judicial description in right prospective and convicted the appellants in a routine manner by taking unduly lenient view (6) the lower court judgment suffers with serious inconsistencies and improbabilities by without considering the fact there was no clear picture as to why the appellant was convicted, but the during the course of arguments, she only confined the arguments by contending that the appellant/ accused was aged about 23 years and physically handicapped person and he already undergone 46 days imprisonment during trial and same may be given set off. The learned counsel for the appellant/ accused also filed a memo stating that the appellant was in judicial custody from 29.03.2016 to 21.04.2017 and again from 07.03.2019 to 04.04.2019, totally 46 days and same may be given set off. She also filed copy of 50% disability certificate of the appellant/ accused issued by the Medical Board, AREA Hospital, Madanapalle.

13) Per contra, the learned Additional Public Prosecutor by discussing the oral and documentary evidence, contentions of the parties would 6 submit that the trial court rightly convicted the accused by proper appreciation of oral and documentary evidence, there was no necessity to interfere in the findings and Judgment of the trial court and then sought to dismiss the appeal.

The learned Additional Public Prosecutor as regards giving of set off to the accused it is left to the discretion of the court.

14)Out of four witnesses examined by the prosecution, P.W-1 is A.V & S.O., Sector-V, TTD, Tirumala, before whom the accused was produced by P.W-2 and who gave Ex.P1 report, P.W-2 is the Security

Guard, Sector-V, Alipiri and he is the eye witness to the incident, who caught hold the accused inside the temple, P.W-3 is the private security guard, Alipiri toll gate, Tirupati and P.W-4 is the then S.I of Police, CCS,

Tirumala, produced the accused before him, who registered F.I.R. on the strength of Ex.P1 and dispatched F.I.R. vide Ex.P2 and did entire investigation including arrest of the accused and filing charge sheet.

15) Before adverting, analyzing and appreciating the evidence of prosecution witnesses, their brief evidence is extracted as under for better appreciation of the facts.

PW-1 has deposed that on 27-03-2016 at about 11.30

PM, while he was present in his house, he received information from PW-2 over a phone that one male person intruded into Padala Mandapam, Alipiri entrance, Tirupati and then immediately, they caught hold him and then he instructed them to keep him in the office under surveillance and on the next day morning he enquired the said male person. PW-1 has further deposed that on enquiry he revealed his name as C.Gangadhar and he also confessed that he entered into Padala Mandapam with intend to commit theft and later he forwarded the report 7 and he instructed his staff to present the same and produced him before police.

PW-2 has deposed that on 27-03-2016 he attended night shift duty from 8.00 PM to 8.00 AM on 28-03-2016 and he attended night shift duty at Padala Mandapam and approximately at about 11.00 PM, he was present beside the Srivari Padala Mandapam and approximately at about 11.00 PM he was present beside the Srivari Padala

Mandapam and observing pilgrims proceeding on foot to

Tirumala and guide them to climb steps as a group. PW-2 has further deposed that at that time, he heard big sound from inside Padala Mandapam and on suspicion, he opened the lock and entered into Padala Mandapam and found the presence of one male person and on seeing him, the said male person ran towards back side of sanctum and then he went there and caught hold him and informed the same to

PW-1 and he instructed him to keep the said male person in the office under their surveillance and he will come on the next day morning and accordingly, he kept the said male person in the office under surveillance and he returned to his duty point and after Ekantha Seva, Padala

Mandapam will be closed at 8.30 PM and no body will present inside Padala Mandapam, after closing and there is some gap between pillar and grills of Srivari Padala

Mandapam, Alipiri and it is at the height of nine feet from ground level.

PW-3 has deposed that on 28-03-2016 he attended morning shift duty commencing at 8.00 AM to 1.00 PM, he attended Tirupati Ghat Road Mobile duties and while so at about 9.00 AM on the instructions of PW-1, he produced the accused before CCS, Tirumala.

PW-4 has deposed that on 28-03-2016 at about 3.00

PM, while he was attending his duties in CCS, Tirumala, at that time, PW-3 came to PS along with the accused, he presented Ex.P-1 report of PW-1 before him and on the strength of Ex.P-1 he registered a case in Cr. No. 41 of 2015 for the offences punishable U/Secs. 457, 380 r/w 511

IPC and dispatched FIR vide Ex.P-2 to the court. PW-4 has 8 deposed that he kept the accused under surveillance and he along with PW-3 left the police station, visited the scene situated at padala Mandapam, Alipri and prepared rough sketch vide Ex.P-3. PW-4 has deposed that on interrogation, the accused voluntarily confessed that he entered into Padala Mandapam to commit theft and in the meanwhile the security staff caught hold him and sent the accused for judicial remand and after completion of entire investigation, he filed charge sheet.

Sec. 443 and 456 are extracted as under:

Sec. 443 Lurking house trespass by night:- Whoever commits house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit “lurking house-trespass

Sec. 456. Punishment for lurking house-trespass or house-breaking by night. Whoever commits lurking house- trespass by night, or house-breaking by night, shall be pun- ished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

16)Succinctly, the prosecution case is that, on 27.03.2016 after closing the Srivari padalu mandapam with locks, the accused trespassed into the Srivari padalu mandapam, during the night time, inside the temple and P.W-2 caught hold the accused, then produced

before P.W-1 and later P.W-4. Undoubtedly, the prosecution relied upon

the testimony of P.W-2 to believe its case, that the accused trespassed into Srivari padalu mandapam and he was found inside the temple on the fateful day of the incident.

17)P.W-2 being the security guard at the said temple, categorically deposed that on 27.03.2016 while he was on night duty, at about 11.00am, having heard a big sound from inside Srivari padalu mandapam, he opened locks of the temple and entered into Srivari padalu mandapam and found the accused and further the accused ran 9 towards back side of sanctum and then he caught hold the accused and subsequently produced before P.W-1. P.W-2, was subjected to cross examination by the learned counsel for the accused, but nothing worthwhile elicited from out of the cross examination, either to impeach his credibility or cast a doubt on his veracity. It seems, there is no defence in the trial court that the accused was there in side the temple due to mistake or the temple priest or security or temple authorities closed the temple without observing presence of accused inside of Padala mandapam premises and as such, he was held up in

Padala mandapam. It seems to be the defence of the accused, that he did not commit such offence on the fateful day as police caught him when he went to TTD.

Absolutely, there is no necessity for P.W-2 to speak false hood and grind axe against the accused to rope him in a false case. Even it appears, no suggestion was put to P.W-2 suggesting bad motive or ill- feelings between P.W-2 and the accused.

18)Therefore, the testimony of P.W-2 clearly evident the fact, that the accused was found inside Srivari mandapam on the fateful day of the incident and the accused did not offer any explanation as to why he was there inside Srivari padala mandapam on the fateful day of the incident. When the testimony of P.W-2 is wholly credible, reliable and trust worthy, absolutely, there is no necessity to insist the prosecution to produce corroborative evidence.

In Namdeo v. State of Maharashtra reported in (2007) 14 SCC 150, wherein it was held that ; “ it is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The le- gal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to 10 fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence

In Kunju @ Balachandran v. State of Tamil Nadu re- ported in MANU/SC/7065/2008: AIR 2008 SC 1381a similar view has been re-iterated placing reliance on various ear- lier judgments of Apex Court including Jagdish Prasad v.

State of M.P. reported in .reported in; and Vadivelu Thevar v.State of MadrasMANU/SC/0039/1957 : AIR 1957 SC 614

19)It seems, P.W-2 is not a police officer, even if he is a police officer, his evidence cannot be discarded on that ground.

In State of Assam v. Muhim Barataka and another re- ported in 1987 Crl.L.J 152 = AIR 1987 SC 98, the Hon’ble

Apex Court observed that, ''evidence of Police officer cannot be underestimated merely because he is police officer.''

In Tahir Vs. State of Delhi, reported in AIR 1996 SC 3079 , the hon'ble apex court held that:

“Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis for conviction and the absence of some independent witness of the locality to lend corroboration to their evidence does not in any way affect the creditworthiness of the prosecution case.”

In Anil Alias Andha Sadasiv Nandoskar Vs State of

Maharastra reported in AIR 1996 SC 2943 the Hon'ble

Supreme Court observed that;

There is no rule of law that the evidence of police officials has to be discarded or that it suffers from some inherent infirmity. Prudence, however, requires that the evidence of the police officials, who are interested in the outcome of the result of the case, needs to be carefully scrutinized and independently appreciated. The police officials do not suffer from any disability to give evidence 11 and the mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness.

20)It seems, after P.W-2 caught hold the accused, he produced the accused before P.W-1, who inturn produced the accused before the police through P.W-3 along with presenting Ex.P1 report. P.W-3 corroborated the evidence of P.W-1 with regard to produce the accused

before P.W-4 by presenting Ex.P1 report. P.W-4 investigating officer also

corroborated and deposed that on 28.03.2016 at about 03.00pm, P.W-3 produced the accused along with Ex.P1 report given by P.W-1, he registered the above crime vide Ex.P2 F.I.R and then arrested the accused.

21)P.Ws 1 to 3 evidence also shows that the accused confessed about entering into Srivaripadalu mandapam on that day, P.Ws 1 to 3 are not the police officials and they are only TTD employees and as such their evidence about the confession of the accused as to the offence committed by him on that day is not hit by Sec. 25 and 26 of

Indian Evidence Act.

22)Therefore, the testimonies of P.Ws 1 to 4, apart from Exs. P1 to

P3 clearly evident the fact, that the accused trespassed into

Srivaripadalu mandapam on the fateful day of the incident, to commit theft or some offence and as such, it can be said that the prosecution proved its case beyond reasonable doubt for the offence u/sec 456 IPC.

It seems, the trial court discussed the oral and documentary evidence in detail and rightly came to conclusion that the prosecution proved its case beyond reasonable doubt against the accused for the charge u/sec 456 IPC.

23)So, absolutely there is no necessity to interfere in the impugned conviction judgment of the trial court, as regards, quantum of sentence 12 is concerned, the accused is aged about 22 or 23 years, first time offender and he is also physically handicapped person. In fact, the trial court also mentioned the accused was physically handicapped person.

Therefore, considering the case facts and above circumstances, the accused being 22 or 23 years old, first time offender and also physically handicapped person and further considering the present circumstances in the society due to covid-19, I am of the opinion, the said sentence of 6 months imposed by the trial court can be modified.

24) In the result, Criminal Appeal is dismissed by confirming the impugned Judgment of conviction of the accused U/Sec. 248(2) Cr.P.C.

for the offence U/Sec. 456 IPC but modified the sentence by setting aside the sentence of six months imprisonment imposed by the trial court in CC No. 302 of 2016 dated 15.11.2018 on the file of II

Additional Judicial Magistrate of 1st Class, Tirupati against the accused

U/Sec. 456 IPC, by imposing sentence of 46 days which was already undergone by the accused during remand and same was given set off u/sec 428 Cr.P.C., apart from directing the accused to pay fine of

Rs.2,000/- in default, simple imprisonment for a period of one month for the offence U/Sec. 456 IPC. The appellant also paid Rs.200/- fine in the trial court, and the appellant is directed to pay fine of Rs.1,800/-

before the trial court within one month.

Typed to my dictation by the stenographer, corrected and

pronounced by me in the open Court, this the 22nd day of June, 2020

Special Sessions Judge-cum- IV Additional Sessions Judge, Tirupati Copy to:

The II Additional Judicial Magistrate of 1st Class, Tirupati