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2002 DIGILAW 352 (AP)

SYED ZAMEER v. State Of A. P.

2002-03-05

body2002
S. R. K. PRASAD, J. ( 1 ) THIS revision is directed against the conviction and sentence of rigorous imprisonment for three months and to pay a fine of Rs. 500/- in default simple imprisonment for one month for the offence under Section 338 IPC awarded by xv Metropolitan Magistrate, Hyderabad, in cc No. 204 of 1999 as confirmed by the iv Additional Metropolitan Sessions Judge, hyderabad in Crl. A No. 445 of 1999. ( 2 ) THE revision petition has been charge-sheeted for the offence under section 338 IPC alleging, that the accused drove the lorry bearing No. AP KU 6197 on 1-9-1998 at about 10-15 hours in a rash and negligent manner and dashed an auto bearing No. ABT 9578 which lead to sustaining of injuries by the auto driver and the passenger Smt. Suneeta. Thereafter, the accused pleaded not guilty of the offence under Section 338 IPC. After trial, the XV metropolitan Magistrate, Hyderabad, found the accused guilty of the said offence and sentenced him to undergo rigorous imprisonment for three months and also to pay a fine of Rs. 500/- in default, simple imprisonment for one month. The same has been confirmed by the IV Additional metropolitan Sessions Judge, Hyderabad, in crl. A. No. 445 of 1999. ( 3 ) AGGRIEVED by the same, the revision petitioner carried the matter in revision before this Court. ( 4 ) THE learned Counsel for the revision petitioner has contended that these indentification parade is not conducted and there is no identity of the driver who drove the lorry. She further contends that the independent witnesses are not examined by the trial Court. ( 5 ) THE learned Public Prosecutor contends that both the injured have identified the accused-driver in the Court and that itself is sufficient to award sentence against the accused. ( 6 ) THE learned Counsel for the revision petitioner has cited a catena of decisions in support of her claim and the relevant portions of those decisions are extracted hereunder. The relevant portion at para 5 in State of Maharashtra v. Subhalaya kanaka Manaiah and others, 1993 (3) crimes 466, reads as follows:"the identification of the alleged culprits by these witnesses assumes lot of importance in the case. The relevant portion at para 5 in State of Maharashtra v. Subhalaya kanaka Manaiah and others, 1993 (3) crimes 466, reads as follows:"the identification of the alleged culprits by these witnesses assumes lot of importance in the case. Throughout the contention of the defence had been that these witnesses did not give any descriptive particulars of the accused and therefore they had not seen the persons concerned. The High Court examined this position and observed that except the names of Balan the names or descriptive particulars of no other accused were mentioned and that leads to an inference that these witnesses have not actually seen the culprits and their subsequent identification either in the parade or in the Court does not inspire confidence. "the relevant portion at para 6 in Vijayan v. State of Kerala, 1999 SCC (Crl.) 381, reads as follows:"the test identification parade was discarded by the learned Sessions, Judge, as it was apparent from the evidence of PW3 that the photograph of accused Vijayan was shown to her before the test identification parade and further, just before. she was entering the sub bail to identify the accused, somebody had told her to identify the tallest man shown in the parade. The High court also agreed with the conclusion of the learned Sessions Judge and did not rely upon the same but queerly enough, the High court relied upon the evidence of PW3 as she identified the accused in Court after so many years on the ground that corroboration to the same is available. This conclusion on the face of it is unsustainable. As a matter of prudence, it is highly unsafe to accept the identification of the accused in Court many years after the occurrence when the test identification parade made shortly after the occurrence has not been accepted. For a person to just see his face while opening the door and then remember the same for the purpose of identification after five years of the occurrence, in our considered opinion, is just impossible. "the relevant portion at para 13 in Jaspal singh v. State of Punjab, 1997 SCC (Crl.) 358, reads as follows:"it is common premise that although the appellants were arrested on 27-7-1991, yet the investigation agency did not hold TI parade. "the relevant portion at para 13 in Jaspal singh v. State of Punjab, 1997 SCC (Crl.) 358, reads as follows:"it is common premise that although the appellants were arrested on 27-7-1991, yet the investigation agency did not hold TI parade. The identification of the appellants in the Court made by Gujant Singh (PW3) and Ram Singh (PW4) cannot be accepted with certainly as reliable identification. If this be so, the attempt of the prosecution to establish the identity of the accused in the present crime has to be rejected and, therefore, it is not possible to connect any of the appellants with the present crimes. " ( 7 ) KEEPING in view of the said principles the facts are examined. It is a case where the accused is said to have surrendered before the police after the incident and confessed before them and got released on bail. Both the injured have identified the accused before the Court. But the identification of the accused and the name of the accused did not find place at the earliest point of time i. e. , at the time of giving FIR. It is for the prosecution to show that the accused was driving the vehicle at the time of the incident and he was responsible for causing the accident. If really the driver is known to them, the injured would have identified the accused- driver at the earliest point of time. The lorry and its trip that were not seized. These are some of the circumstances which carry doubt about the identity of the person by the injuried. They do not in any way inspire confidence regarding the identify of the person who drove the vehicle. Unfortunately, a confession was made by the accused by going over to the Police Station. The same is not admissible in evidence. The non- conducting of the identification parade, is one of the important circumstances to doubt about the identity of the person who drove the vehicle, applying the principles laid down by the Supreme Court in the above decisions, I cannot but hold that the evidence regarding the identity of the person is not reliable. The non- conducting of the identification parade, is one of the important circumstances to doubt about the identity of the person who drove the vehicle, applying the principles laid down by the Supreme Court in the above decisions, I cannot but hold that the evidence regarding the identity of the person is not reliable. ( 8 ) COMING to the aspect of non- examination of the independent witnesses, the police visited the scene of offence some time after the accident and that the scene of offence is a crowded area and it is not possible to secure independent witnesses since the person who had seen accident is said to have taken the injured, and got them admitted in the hospital. Therefore, it is a case where there is sufficient evidence regarding the accident. In so far as the identity of the person who drove the vehicle is concerned, there is some suspicion. Therefore, the accused is entitled to benefit of doubt. There is no proper appraisal of the evidence made by the lower appellate court and miscarriage of justice has been occurred in this case. I have reappraised the entire evidence and find that the identity of the person who drove the vehicle and caused the accident is very very feeble and there is lot of suspicion about the identity of the person. In view of the same, the conviction and sentence imposed by the learned Magistrate as confirmed by the learned IV Additional Metropolitan Sessions, judge, is liable to be set aside. ( 9 ) IN the result, the conviction and sentence imposed by the trial Court as confirmed by the lower appellate Court is set aside. The accused is acquired of the respective charge. The criminal revision case is allowed accordingly.