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2003 DIGILAW 342 (AP)

Shaik Ramjohn Sharief v. State Of A. P.

2003-03-04

DUBAGUNTA SUBRAHMANYAM

body2003
DUBAGUNTA SUBRAHMANYAM, J. ( 1 ) THIS revision is filed against Judgment dated 28-7-2000 in Criminal Appeal No. 375 of 1998 on the file of IV Additional Sessions Judge, Guntur confirming the conviction and sentence of the accused for the offences under Section 304-A and 337 I. P. C. in C. C. No. 112 of 1998 on the file of I Additional Munsif Magistrate, Narasaraopet. (2) According to the prosecution, the deceased M. Chinna Narasimharao and some other labourers were traveling in a lorry bearing No. A. D. M. 6948 on 18-4-1998, the accused was driving the said lorry, due to rashness and negligence in driving the vehicle went off the road into the fields and the labourers including the deceased sitting in the cabin fell out of the vehicle, sustained injuries, and later the deceased died in the hospital. ( 2 ) THE accused was prosecuted by the police for the offences punishable under Sections 304-A and 337 I. P. C. The wife of the accused is the owner of the said vehicle. She was examined as PW. 9 before the trial Court. The labourers were examined as PWs. 1 to 8. PWs. 1 to 9 were declared hostile by the prosecution and cross-examined by the Assistant Public Prosecutor. The learned Magistrate held that the accused drove the vehicle in a rash and negligent manner and became liable for punishment under Sections 304-A and 337 I. P. C. The conviction and sentence imposed by the learned Magistrate was upheld in the Appeal by the learned Additional Sessions Judge. Aggrieved thereby, this revision is filed. (3) PWS. 1to 8, who are the injured victims, did not depose that accused was driving the vehicle at the time of accident. In one voice they stated that they do not know who was the driver of the said vehicle. The owner of the vehicle PW. 9 deposed that on the date of accident she engaged a person from Piduguralla to drive the vehicle and she does not remember the name of the said driver. It is, therefore, clear that no witness deposed before the Court that the accused drove the vehicle at the time of accident. Inspite of It, the learned Magistrate convicted the accused. The said conviction was blindly upheld by the learned Additional Sessions Judge. The learned Magistrate relied upon Sec. 161 Cr. P. C. statement of PW. It is, therefore, clear that no witness deposed before the Court that the accused drove the vehicle at the time of accident. Inspite of It, the learned Magistrate convicted the accused. The said conviction was blindly upheld by the learned Additional Sessions Judge. The learned Magistrate relied upon Sec. 161 Cr. P. C. statement of PW. 9 and came to the conclusion that the accused was the driver of the said vehicle. Sec. 161 Cr. P. C. statement is not substantial evidence. Therefore, the Magistrate erred in taking into consideration the said statement of PW. 9. ( 3 ) THE learned Magistrate further observed that in the Motor Vehicle Inspector s report it is stated that the accused was the driver of the vehicle. Motor Vehicle inspector was examined as PW. 14. He did not depose that the accused was the driver at the time of the accident. Further he is not the eyewitness. I have verified Sec. 313 Cr. P. C. statement of the accused recorded by the Magistrate. In that statement the learned Magistrate did not bring to the notice of the accused that as per Motor Vehicle Inspector s Report accused was the driver and his explanation was not sought for. When an incriminating circumstance is not brought to the notice of the accused, the Magistrate is not entitled in law to rely upon that evidence to base conviction on any of the accused. It is a well-settled principle of law. The learned Additional Sessions Judge in his Judgment stated that all the witnesses are residents of the same village as that of the accused and so naturally they will be suspectable to pressure or influence by the accused. In the view of the learned Additional Sessions Judge, their evidence that the accused was not the driver of the vehicle cannot be accepted. The learned Additional sessions Judge did not appreciate the evidence in proper perspective. None of the witnesses stated that the accused was the driver of the vehicle. What they stated is that they do not know who was driving the vehicle at the time of accident. Even if PWs. 1 to 9 are not telling the truth before the Court to convict the accused, there must be evidence on record showing that the accused was driving the vehicle at the time of accident. Absolutely, there is no such evidence on record. Even if PWs. 1 to 9 are not telling the truth before the Court to convict the accused, there must be evidence on record showing that the accused was driving the vehicle at the time of accident. Absolutely, there is no such evidence on record. Therefore, the conviction by the Magistrate and confirmation by Additional Sessions Judge are without applying their minds and quite contrary to the evidence on record. If such convictions without any iota of evidence are made by the Courts and upheld by appellate courts, they will shake the confidence of general public in the functioning of criminal justice system. Such undeserving conventions are to be totally avoided by courts. (4) In the result, the revision is allowed. The accused is found not guilty, and accordingly, acquitted of the offences punishable under Sections 304-A, 337 I. P. C. Convictions and sentences given by the two Courts below are set aside.