APHC010205652014 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3560]

(Special Original Jurisdiction)

WEDNESDAY, THE SEVENTH DAY OF JANUARY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CRIMINAL REVISION CASE NO: 1369/2014 Between:

1. NANDAVARAPU VENKATA RAO, S/O.AKKUNAIDU, AGED 33 YEARS, D.NO.67-3-147, NEHRU NAGAR, EX-SERVICE COLONY, NEAR COROMANDEL, VISAKHAPATNAM.

...PETITIONER AND

1. STATE OF A P REP BY P P HYD, rep. by Public Prosecutor, High Court of Judicature at Hyderabad for the state of Telangana and Andhra Pradesh.

...RESPONDENT Counsel for the Petitioner:

1. V V SATISH Counsel for the Respondent:

1. PUBLIC PROSECUTOR (AP) The Court made the following:

THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CRIMINAL REVISION CASE NO: 1369/2014

O R D E R:

1. Instant Criminal Revision Case has been preferred challenging the concurrent finding of the learned Courts below against the petitioner. Petitioner was convicted under sections 304-A and 337 of the Indian penal Code by the learned Trial Court i.e., III Additional Chief Metropolitan Magistrate, Gajuwaka in CCNo.239 of 2007 vide Judgment dated 24.01.2013 and said order of conviction and sentence was confirmed by the XIII Additional District and Sessions Judge, Gajuwaka vide Judgment in Criminal Appeal No.30 of 2013 dated 09.05.2014.

2. Learned Counsel for the Petitioner submits that the prosecution has miserably failed to bring home the charge against the present petitioner. He submits that there are allegations of rash and negligent driving of the driver of the offending vehicle. i.e., the petitioner. P.W.1 was the driver of motor cycle who had two pillion riders at the time of accident. He further submits that it has been alleged in the prosecution case that the petitioner being driver of a heavy vehicle, drove the vehicle in a rash and negligent manner and dashed the motor cycle driven by P.W.1 from backside, thereby, two pillion riders fell on the road and sustained severe fatal injuries and died on the spot. It has been alleged that P.W.1 also sustained injuries, but they are simple in nature. Learned counsel for the petitioner pointed out that there are no independent witnesses of such accident, except P.W.1. P.W.1 is interested witness who is defacto complainant.

His evidence cannot be believed. The prosecution failed to produce any further witnesses who have seen the accident. Other witnesses as produced by the prosecution are not ocular witnesses. They are the technical witnesses such as mahazar witnesses, inquest witnesses and medical officer as well as investigation officer and Motor Vehicle Inspector. None of the witnesses, except P.W.1 stated about the witnessing accident. Thus, the evidence of P.W.1 cannot be considered for recording conviction and sentence against the present petitioner. He further submits that there are severe lacunae in the case of the prosecution regarding the identification of the accused being driver of the offending vehicle. There was not test identification parade of the accused during the course of investigation of this case. P.W.1 for the first time identified accused at the time of trial on Dock before the Court. The accident happened in the year 2006. Trial commenced after 3 or 4 years of such accident, it was not possible for P.W.1 to identify the accused. He submits that during cross examination of P.W.1 it has been specifically raised by the defence that P.W.1 has had two pillion riders on the motor cycle, also carried hanging heavy bags on the back side of the motor cycle and at that time of accident P.w.1 being the rider of motor cycle, tried to overtake the offending vehicle/lorry which was running on the extreme left side of the road. By that way, the back hanging bags of the motor cycle touched the right side of the lorry, P.w.1 could not control the motor cycle and fell down on the road.

It is further contention of the learned counsel for the petitioner that the prosecution has miserably failed to prov