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Andhra High Court · body

2003 DIGILAW 24 (AP)

K. Nageshwara Rao v. State Of A. P.

2003-01-07

DALAVA SUBRAHMANYAM

body2003
DALAVA SUBRAHMANYAM, J. ( 1 ) THE revision petitioner-accused filed the revision against the judgment of conviction and sentence in C. C. No. 223 of 1994 on the file of the Judicial First Class Magistrate, Kaikalur as confirmed in Crl. Appeal No. 129 of 1997 by the VI Addl. Dist. and Sessions Judge (Fast Track Court), Krishna at Machilipatnam in dismissing the appeal and confirming the conviction and sentence under Section 304-A IPC and sentencing the accused to suffer rigorous imprisonment for a period of six months and to pay fine of Rs. 500/- in default to suffer R. I for two months. The facts of the case are as follows; The S. I of Police, Mudinepally Police Station filed a charge sheet against the accused alleging that on 23. 10. 1994 at about 23 hours the accused drove his lorry ATK 3245 in a rash and negligent manner while proceeding from west to south without taking precautions and knocked down the deceased by name Chilukoti Suryanarayana who was a pedestrian and later dashed against the back portion of another lorry as a result of which the deceased fell down on the northern side and sustained injuries which resulted in his death. A case in Cr. No. 52 of 1994 was registered for the offence under Section 304-A IPC and after investigation charge sheet was laid against the revision petitioner-accused. The prosecution examined Pws 1 to 8 and marked Ex. P1 to P8 to prove the offence alleged against the accused. G. Subrahmanyeswara Rao is examined as Pw1 who is the cleaner and P. Satyanarayana is the driver of the lorry ATS 2323. Pws 1 and 2 deposed that they parked their lorry by the side of the road and they were sleeping. At about 11. P. M they heard a sound and they woke up and found another lorry hitting from behind. Pw3 Dr. A. Manoj who gave first aid to the injured when the injured was brought to him. Pw4 is the wife of the deceased. Pw5 is the mediator for the mahajar prepared for observation of the scene of offence, which is Ex. P1. He was also present at the time of inquest and Ex. P2 is the inquest report. Pw6 is Dr. S. Raja who conducted post mortem examination over the dead body of the deceased. Pw4 is the wife of the deceased. Pw5 is the mediator for the mahajar prepared for observation of the scene of offence, which is Ex. P1. He was also present at the time of inquest and Ex. P2 is the inquest report. Pw6 is Dr. S. Raja who conducted post mortem examination over the dead body of the deceased. Pw7 is the M. V Inspector who inspected the vehicle and opined that the accident was not due to any mechanical defect. Pw8 S. I of Police, Mudinepally deposed that the accused himself came to the police station and his statement was recorded under Ex. P5. He registered the same as Cr. No. 52 of 94 and issued Ex. P6 FIR. He visited the scene of offence and subsequently after completion of the investigation laid the charge sheet. ( 2 ) BOTH the Courts relied on the statement of the accused which is marked as Ex. P5. The accused denied his statement when he was examined under Section 313 Cr. P. C. Both the Courts relying on the evidence of Pw8 convicted the revision petitioner-accused for the offence under Section 304-A IPC. To prove the offence under Section 304-A IPC, the prosecution must prove that the accused drove the vehicle in a rash and negligent manner. Merely because the accused was driver of the lorry, it cannot be presumed that he drove the lorry in a rash and negligent manner. There cannot be any presumption that just because the accident took place, the accused drove the lorry in a rash and negligent manner. Unless the prosecution is able to prove that the accused was the driver of the lorry at the time of the accident and that he drove the lorry in a rash and negligent manner conviction cannot be based for the offence under Section 304-A IPC. In fact the accused denied having given a statement recorded under Ex. P5. It was suggested to Pw8 that the same was not given voluntarily by the accused. Even if the accused were to give Ex. P5, there cannot be any presumption that he drove the vehicle in a rash and negligent manner. Unless the prosecution is able to prove the rash and negligent driving, conviction cannot be based. Both the Courts ignored this fact and committed an error in convicting the accused for the said offence. Except Ex. P5, there cannot be any presumption that he drove the vehicle in a rash and negligent manner. Unless the prosecution is able to prove the rash and negligent driving, conviction cannot be based. Both the Courts ignored this fact and committed an error in convicting the accused for the said offence. Except Ex. P5, there is no other material to prove that the accused was the driver at the time of the accident and that he drove the vehicle in a rash and negligent manner. What is written in Ex. P5 cannot be substantive evidence and prosecution must prove the rash and negligence independently. It cannot be treated as an admission of guilt. For the above said reasons, both the Courts committed an error in convicting the revision petitioner-accused for the offence under Section 304-A IPC. Hence the revision is liable to be allowed. ( 3 ) IN the result, the revision is allowed and the conviction and sentence for the offence under Section 304-A IPC is set aside and the accused is acquitted. The fine amount, if paid, shall be refunded to him.