IN THE COURT OF THE SESSIONS JUDGE, VIZIANAGARAM
Present: Smt. M.G. Priyadarshini, M.A. (Triple) M.L., I Additional Sessions Judge FAC Sessions Judge, Vizianagaram
Thursday, this the 21st day of November, 2013
Criminal Appeal 64/2012
From what Court the Appeal is :Additional Judicial Magistrate of I Class preferredCourt, Vizianagaram.
Number of case in that court:C.C.No. 691/2010
Name and description of the :Athmakuri Gowri Shankar, s/o Trinadha, appellantsaged about 29 years, Business, residing at AlakanandaCol;ony,Cantonment, Vizianagaram.
Name and description of the : The State represented by the Public respondentsProsecutor, Vizianagaram.
Sentence and Law under which : The accused is convicted u/sec. 255 (2) the accused are found guiltyCr. P.C. for the offence u/sec. 304-A IPC. The accused is sentenced to undergo simple imprisonment for a period of six months and pay fine of Rs.500/- in default simple imprisonment for a period of one month for the offence punishable u/sec. 304-A IPC. The remand period of accused, if any shall be set off under section 428 Cr.P.C.
Whether confirmed, modified or :The appeal is allowed setting aside the reversed and if modified, the conviction and sentence imposed by the modificationAdditional Judicial Magistrate of I Class, Vizianagaram, in C.C. 691/2010 dated 30.03.2012.
Date of presentation:24.04.2012
Date of filing:24.04.2012
Date of notice issued by court to :24.04.2012 appear
Bail bond if appellant has been :--- let out on bail
Appellant ordered to appear on:24.05.2012
Date of Hearing:19.11.2013
Sessions Court, Vizianagaram Crl. A. 64/2012 (304-A IPC)2
Date of Judgment:21.11.2013
This appeal coming on 19.11.2013 for final hearing before me in the presence of Sri K.V.N. Thammanna Setty, Advocate for Appellant/Accused and Public Prosecutor for respondent/state, and, having stood over for consideration to this date, this Court delivered the following
J U D G M E N T
This appeal is preferred against the calendar and judgment in
C.C.No.691/2010, dt.30.03.2012 on the file of the Additional Judicial
Magistrate of I Class, Vizianagaram, by the accused/appellant.
2.The brief facts of the case are stated as follows:
The accused, who drove the crime vehicle-Scooter bearing
No.AAV 775, is a resident of Vizianagaram; on 08.09.2010 at about 21:30 hours one Golagani Adinarayana, herein after referred to as ‘deceased’,went to attend the calls of nature by foot to outside the road, at that time, the accused who was driving the scooter bearing No. AAV 775, came from R&B guest house road to Church road in a rash and negligent manner at high speed without blowing horn and dashed the deceased, resulting in, the deceased sustained severe head injury and also bleeding injury on his left leg, immediately, after the accident, the injured (deceased) was shifted to Government Hospital,
Vizianagaram, from there, he was referred to K.G. Hospital, Visakhapatnam, for better treatment, where, he succumbed to the injuries while undergoing treatment on 09.09.2010.
Based on the statement of Golagani Suri Babu (son of deceased) and on receipt of medical intimation, S.I of Police, Traffic Police Station,
Vizianagaram registered a case in Cr. No. 119/2010 U/s.338, IPC and issued
FIR, he visited the scene of offence observed the same and prepared rough sketch, after receipt of the death intimation, he altered the section of law from 338 IPC to 304-A IPC and issued altered F.I.R., and got conducted inquest over the dead body and sent the dead body for postmortem examination; he got
Sessions Court, Vizianagaram Crl. A. 64/2012 (304-A IPC)3
examined the crime vehicle through M.V. Inspector and examined the witnesses; after completion of investigation, he filed the charge sheet.
3. The learned Magistrate took cognizance against the accused for the offence U/s.304-A, IPC. When the accused appeared before the Court, copies of documents were furnished to him and he was examined u/sec.251
Cr.P.C, where, he denied the offence and pleaded not guilty and claimed to be tried.
4. In the trial Court during the course of trial, the prosecution examined 11 witnesses and marked 10 documents. After closure of prosecution evidence, the accused was examined U/s. 313, Cr.P.C. who denied the incriminating evidence put to him but he did not examine any witness in his defence.
5.After hearing the arguments, considering the evidence on record, the Trial Court convicted the accused for the offence u/sec.304-A, IPC and he was sentenced to undergo Simple imprisonment for six months and to pay a fine of Rs.500/- for the offence u/sec. 304-A, IPC with default sentence of one month.
The present appeal is preferred against the said judgment with the following grounds of appeal:
(i)the lower Court ought to have acquitted the accused since the owner of the crime vehicle is not examined to prove as to how the vehicle went into the hands of the accused by the time of accident;
(ii)the topography stated by the investigation officer is not correlates to
Ex.P.9 and actual picture of the place of offence is not placed before the Court;
(iii)the skid marks and brake marks are not shown in the observation report;
(iv)the lower Court ought to have acquitted the appellant on the common phenomenon that when a pedestrian suddenly crosses a road, no driver can stop the vehicle.
Sessions Court, Vizianagaram Crl. A. 64/2012 (304-A IPC)4
(v)the prosecution has failed to produce the photos of the scene of offence.
6. The point for determination is:
Whether the prosecution proved the guilt of the
accused for the offence U/s.304-A, IPC beyond all
reasonable doubt?
7. Point:
The learned counsel for the appellant, strenuously, argued
before this Court that there is no proper evidence regarding the accident and the
learned Trial Judge has convicted the accused based on the evidence of interested witnesses and prayed to allow the appeal.
The learned Public Prosecutor submitted that the conviction and sentence of the accused is on proper appreciation of evidence and the prosecution has proved the offence against the accused beyond all reasonable doubt and prayed to dismiss the appeal.
8.This Court has carefully perused the evidence of P.ws.1 to 11.
P.w.1, who is the son of the deceased, deposed that he has witnessed the accident when he was present in his bicycle shop; immediately, after the accident, he shifted the deceased to the Hospital. In his cross-examination, he stated that Venkateswara Tiffin Center is adjacent to the four road junction, as such, the vehicles of the customers were parked on either side of the road. He admitted that in Exs.P.1 and P.2, there was no mention that he can identify the driver of the crime vehicle if he is shown to him; he denied the suggestion that the accused is no way concerned with the accident and a false case was foisted against the accused.
9.P.w.2, who is a neighbor of the deceased, deposed, in line, with
P.w.1. In the cross-examination, he deposed that P.w.1 accompanied with him to the Court. He admitted that he did not state the physical description of the
Sessions Court, Vizianagaram Crl. A. 64/2012 (304-A IPC)5
accused to the police, and, he denied the suggestion that the accused was not the owner/driver of the scooter.
10.P.w.3, who is an independent witness, did not support the case of prosecution and turned hostile.
11.P.w.4, who is running a mechanic shed near R&B guest house, deposed that the deceased succumbed due to injuries sustained in the accident.
He admitted that there is no possibility of the vehicle to move fast at high speed manner, at the scene of offence.
12.P.ws.5 and 6, who are the sons of the deceased, deposed in line with P.w.1. In their cross-examination, they denied the suggestion that they have not witnessed the accident.
13.P.w.7, who is an inquest panchayatdar, deposed that the police have conducted inquest over the dead body of the deceased in K.G. Hospital,
Visakhapatnam, and opined that the deceased died in the road accident.
14.P.w.8 who is said to be the owner of the crime vehicle also did not support the case of prosecution and turned hostile.
15.P.w.9, Assistant Professor, Forensic Medicine, deposed about issuance of postmortem certificate and deposed about the injuries sustained by the deceased in the accident and also opined that the deceased died due to head injury.
16.P.w.10 is the Motor Vehicles’ Inspector, who gave his report stating that there was no mechanical defect to the crime vehicle.
17.P.w.11, who is the Investigating Officer, deposed that originally, he registered the case in Cr.No.114/2010 for the offence U/s.338, IPC and submitted the FIR to all concerned, later, he proceeded to the scene of offence and observed the scene and prepared rough sketch and examined P.Ws.2 to 4 in the
Hospital and P.w.1 has presented a written report. Based on the death intimation, he altered the section of Law from 338 IPC to 304-A IPC and sent FIR to all concerned. He got the dead body photographed and got conducted inquest
Sessions Court, Vizianagaram Crl. A. 64/2012 (304-A IPC)6
over the dead body in his presence. After conducting inquest over the dead body, he sent the dead body for postmortem examination.
While so, on 15.09.2010 when he was present in the police station at 12:00 noon, the accused came to the police station along with his father (P.w.8) and produced the crime vehicle (scooter) and also his driving license and
RC book. Then, P.w.11 arrested the accused and sent him for judicial custody on the same day, and, after completion of investigation, he has filed charge sheet.
In his cross-examination, he, categorically, deposed that the crime vehicle records are not either in the name of P.ws.8 or the accused. He has, further, stated that scene of offence is not a busy area and he has not photographed the scene of offence and he has not prepared separate observation report and he has not noted the skid marks and drag marks at the scene of offence and further deposed that the identity particulars of the driver of the crime vehicle were not stated before him nor he mentioned the same in
Ex.P.8, original FIR. Likewise, he has not mentioned in Ex.P.8 about the colour and company name of the scooter; he denied the suggestion that the accused is no way connected with the accident.
18. To establish a case of 304-A, IPC the important ingredients that have to be looked into are:
(i)death of the deceased;
(ii)identity of the accused; and
(iii)rash and negligent driving of the accused
Law is well settled that if any of the ingredients fails, the only option left to the Court is to acquit the accused. In the instant case, there is no dispute regarding the death of the deceased, but coming to the identity of the accused.
P.ws.1, 5 and 6, who are the sons and interested witnesses, have deposed about the accident, but they did not state anything regarding the identity of the accused. A perusal of Ex.P.8 and P.10 (original and altered FIRs) and 161,
Cr.P.C. statements of P.ws.1, 5 and 6 also do not disclose the identification of
Sessions Court, Vizianagaram Crl. A. 64/2012 (304-A IPC)7
accused, but, they have simply stated “Š ﾍ ¶ ﾁ ³·¥ºõ...”, but did not
specifically mentioned either the name, physical features or identification of the accused, apart from that as per the evidence of P.w.4, who is an independent witness, it was dark, at the scene of offence in the place of accident, and, there is no possibility of any vehicle to move fast at high speed manner. At this stage, it is pertinent to state that the accident took place at 09:30 p.m., and as per the evidence of P.w.4, it was dark at the place of accident and at the time of accident, hence, the visibility of accident is remote, during night time that too when the place of accident is dark.
20.Coming to the scene observation, P.w.11-investigating officer, deposed that he has not prepared any separate observation report. Therefore, it is very difficult to assess whether the accident has occurred due to rash and negligence of the accused, without the observation report as the skid marks and drag marks will be noted in the observation report. Further It is to state that
P.w.11 himself admitted that he has not noticed the skid or drag marks at the scene of offence. Even though P.w.11, in his chief examination, stated that he got photographed the dead body, but in the cross-examination, he admitted that he did not take photographs of scene of offence. Therefore, in the absence of scene observation report and photographs, how can the Court come to conclusion and infer the speed of the vehicle without perusing the observation report, apart from skid and drag marks. Therefore in the absence of the above, it can be concluded that the accident has occurred due to rash and negligence driving of the accused.
21. As stated supra coming to the identification of the accused, P.w.1 to 6 did not state, in their 161, Cr.P.C. statements, about the identification of the accused and no identification parade was conducted by the Investigating Officer, but simply stated that the accused came and surrendered before him in the police station along with crime vehicle, which creates a doubt in the mind of this
Court. Therefore, viewed from any angle, this Court is of considered opinion
Sessions Court, Vizianagaram Crl. A. 64/2012 (304-A IPC)8
that the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt. In absence of proof of important ingredients
U/s.304-A, IPC, the accused is entitled for acquittal.
In the result, the appeal is allowed setting aside the conviction and sentence imposed by the Additional Judicial Magistrate of I Class,
Vizianagaram, in C.C. 691/2010, dt.30.03.2012.
The accused is found not guilty for the offence U/s.304-A,
IPC and he is acquitted U/s. 255(1), Cr.P.C., for the said offence. The fine amount paid by the accused, if any, shall be refunded to him, after appeal time is over.
Dictated to the Personal Assistant, transcribed by him, corrected
and pronounced by me in open Court, this the 21 st day of November, 2013.
Sd./- M.G. Priyadarshini,
I Additional Sessions Judge,
FAC Sessions Judge,
Vizianagaram.
.