APHC010471552009 IN THE HIGH COURT OF ANDHRA PRADESH (Special Original Jurisdiction) MONDAY, THE TWO THOUSAND AND TWENTY FIVE THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO CRIMINAL REVISION CASE NO: Between: 1. PARIMI LINGA RAJU, S/O CHINA YELLAMANDA, DRIVER OF LORRY BEARING NO. AP 16 TU 9873. PARCHURU VILLAGE, PRAKASAM DISTRICT, 1. THE STATE OF AP REP BY ITS PP HYD, rep. by its Public Prosecutor, High Court of A.P., at Hyderabad. Revision filed under Section 397/401 of circumstances stated in the affidavit filed in support of the Criminal Case, the High Court may be aside the order passed in Crl.A.No.32 of 2009 on the file Sessions Judge, East Godavari at Rajahmundry, dt.19 such other relief as it deems fit in the circumstances of the case. IA NO: 1 OF 2009(CRLRCMP 2455 OF 2009 Petition under Section 151 CPC in the affidavit filed in support of the petition, the High Court may be pleased to enlarge the petitioner on bail pursuant to the orders in Crl.A.No.32 of 2009, dt.19-10-2009 on the file of the District at Rajahmundry, confirming the order passed in C dt.03-02-2009 on the file of the VII Addl. J.F.C.M., Rajahmundry, pending disposal of the above Crl.R.C., 1 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) THE EIGHTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO CRIMINAL REVISION CASE NO: 1763/2009 PARIMI LINGA RAJU, S/O CHINA YELLAMANDA, DRIVER OF LORRY BEARING NO. AP 16 TU 9873. PARCHURU VILLAGE, PRAKASAM ...PETITIONER AND THE STATE OF AP REP BY ITS PP HYD, rep. by its Public Prosecutor, at Hyderabad. ...RESPONDENT Revision filed under Section 397/401 of CrPC praying that in the circumstances stated in the affidavit filed in support of the Criminal Case, the High Court may be pleased to allow the above Crl.R.C the order passed in Crl.A.No.32 of 2009 on the file of the Sessions Judge, East Godavari at Rajahmundry, dt.19-10-2009 and grant such other relief as it deems fit in the circumstances of the case. IA NO: 1 OF 2009(CRLRCMP 2455 OF 2009 der Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to enlarge the petitioner on bail pursuant to the orders in Crl.A.No.32 of 2009, 2009 on the file of the Principal Sessions Judge, East Godavari District at Rajahmundry, confirming the order passed in C.C.No.1028 of 2008, 2009 on the file of the VII Addl. J.F.C.M., Rajahmundry, pending disposal of the above Crl.R.C., IN THE HIGH COURT OF ANDHRA PRADESH [3369] THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO PARIMI LINGA RAJU, S/O CHINA YELLAMANDA, DRIVER OF LORRY BEARING NO. AP 16 TU 9873. PARCHURU VILLAGE, PRAKASAM ...PETITIONER THE STATE OF AP REP BY ITS PP HYD, rep. by its Public Prosecutor, ...RESPONDENT CrPC praying that in the circumstances stated in the affidavit filed in support of the Criminal Revision pleased to allow the above Crl.R.C., and set- the Principal 2009 and grant praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to enlarge the petitioner on bail pursuant to the orders in Crl.A.No.32 of 2009, Sessions Judge, East Godavari C.No.1028 of 2008, 2009 on the file of the VII Addl. J.F.C.M., Rajahmundry, pending 2 Counsel for the Petitioner: 1. ARUN SHOWRI G Counsel for the Respondent: 1. PUBLIC PROSECUTOR The Court made the following ORDER: 1. The present Criminal Revision Case, filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is preferred by the petitioner/accused challenging the judgment dated 19.10.2009 passed in Crl.A.No.32 of 2009 on the file of the learned Principal Sessions Judge, East Godavari, Rajahmundry (for short, ‘1st Appellate Court’). By the said judgment, the 1st Appellate Court dismissed the appeal while modifying the sentence of rigorous imprisonment from one year, as originally imposed by the learned VII Additional Judicial Magistrate of First class, Rajahmundry (for short, ‘the Trial Court’) in Calendar Case No.1028 of 2008 dated 03.02.2009, to six months for the offence punishable under section 304A of IPC, while maintaining the fine imposed. 2. The parties to this Criminal Revision Case will hereinafter be referred to as described before the Trial Court for the sake of convenience. 3. The brief facts of the prosecution's case are that: The de facto complainant, Konchada Govindu of Bommuru, Rajahmundry Rural, reported that on 18.08.2005, the deceased, Konchada Ratna Raju, aged 12 years and a student of GPR High School, Bommuru, met with a fatal accident. While returning home on his bicycle around 6:30 p.m., near Andhra Bank in the Horlicks Factory campus, he was hit and dragged by a lorry (No. AP 16 TU 9873) driven rashly and negligently by the accused. He sustained grievous injuries and was shifted to the District Hospital, Rajahmundry, where he died at 9:50 p.m. the same day. The complainant and another resident witnessed the incident. Based on 3 the hospital intimation, the police recorded the complainant's statement and registered Crime No.71 of 2005 under Section 338 IPC, later altered to Section 304-A IPC upon receipt of the death intimation. Investigation confirmed that the accident was caused by the rash and negligent driving of the accused, rendering him liable for punishment. 4. The Trial Court took cognizance against the accused under section 304A of IPC and 134 r/w 187 of M.V.Act. Upon the appearance of the accused, copies of the prosecution documents were furnished to the accused as contemplated under Section 207 Cr.P.C. The accused was examined under Section 251 Cr.P.C. The sum and substance of the charge sheet averments were read over and explained to the accused in Telugu, to which the accused pleaded not guilty for the offences alleged and claimed to be tried. 5. During the course of the trial, on behalf of the prosecution, P.Ws.1 to 11 were examined, and Exs.P1 to P14 were marked. After the closure of the evidence of the prosecution, the accused was examined under Section 313 of Cr.P.C. with reference to the incriminating circumstances appearing in the evidence let in by the prosecution, for which he denied the same and stated that he had no defence witnesses and pleaded not guilty. 6. The Trial Court, by judgment dated 03.02.2009 in C.C.No.1028 of 2008, after evaluating the oral and documentary evidence, found the accused guilty and convicted him. For the offence under Section 304-A IPC, he was sentenced to undergo rigorous imprisonment for one year and to pay a fine of ₹500/-, with a default sentence of simple imprisonment for fifteen days. For the offences under Sections 134(a) and (b) read with Section 187 of the Motor Vehicles Act, he was further sentenced to pay a fine of ₹250/- on each count, and in default, to undergo simple imprisonment for one week on each count. 4 7. Aggrieved by the conviction and sentence imposed by the Trial Court, the accused preferred Criminal Appeal No.32 of 2009 before the 1st Appellate Court. The 1st Appellate Court dismissed the appeal but modified the sentence of rigorous imprisonment from one year to six months for the offence under Section 304-A IPC, while confirming the fines imposed by the Trial Court. Still dissatisfied, the accused filed the present Criminal Revision Case challenging the judgment of the learned Sessions Judge in Criminal Appeal No.32 of 2009. 8. I have heard the learned counsel for both parties and perused the material on record, including the oral and documentary evidence adduced by the prosecution before the Trial Court, as well as the judgments of both the Trial Court and the 1st Appellate Court. 9. The learned counsel for the petitioner/accused contends that there is no positive evidence to establish that the accused was driving the crime vehicle; the prosecution evidence suffers from contradictions, lack of corroboration, and absence of a test identification parade; conviction based solely on the uncorroborated testimony of PW.1 was erroneous, as witnesses allegedly identified the accused nearly three years after the incident, which is highly improbable. It is also argued that the lorry, being a heavily loaded ten-tyre vehicle, could not have been driven at high speed, and no authentic documentary proof, such as a trip sheet, was produced to show that the accused was driving it on the date of the accident; the alleged trip sheet (Ex.P.8) is suspected to have been fabricated; instead of extending the benefit of doubt, the Trial Court wrongly shifted the burden onto the accused to prove his innocence. 10. The learned Assistant Public Prosecutor for the State has, while supporting the impugned judgments of conviction and sentence passed by both Courts, submitted that the prosecution has proved its case beyond all reasonable doubts, by letting in valid and cogent evidence and that though the 5 prosecution witnesses are interested witness, their evidence is sufficient to base conviction on the revision petitioner / accused and that therefore, the impugned judgments of conviction and sentence do not warrant any inference by this Court. 11. 11. Now, the points that arise for consideration are: (I) Whether the revision petitioner / accused has made out any grounds for interference in the impugned judgment of conviction passed by the Trial Court, which was confirmed by the 1st Appellate Court? (II) Does the sentence passed by the 1st Appellate Court warrant any interference? POINT NOs.I and II: 12. True, while exercising revisional jurisdiction under Section 397 Cr.P.C., this Court has minimal jurisdiction to re-appreciate the evidence available on record, however, in the present case, where the petitioner has been found guilty under Section 304A of the IPC and Sections 134(a) and (b), read with section 187 of M.V.Act, and has been convicted and sentenced to one year of rigorous imprisonment along with a total fine of Rs.1,000/-, solely with a view to ascertain that the judgments passed by the Courts below are based on correct appreciation of evidence on record and they are not perverse, this Court undertook exercise to critically examine the evidence be it ocular or documentary on record. 13. In Sanjaysinh Ramrao Chavan V. Dattatray Gulabrao Phalke & Anr1, it has been held by the Hon'ble Supreme Court as follows: Revisional power of the Court under Sections 397 to 401 of Cr.PC is not to be equated with that of an appeal. Unless the finding of the Court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or 1 2015 (3) SCC 123 6 capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction. 14. As far as the scope of power of this Court while exercising revisionary jurisdiction under Section 397 of Cr.P.C., is concerned, the Hon'ble Apex Court in Krishnan and another V. Krishnaveni and another2, has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal Court in its judicial process or illegality or sentence or order. The relevant para of the judgment is reproduced as under: "8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal Court in its judicial process or illegality of sentence or order." 15. To attract Section 304A of IPC and Sections 134(a) and (b), read with section 187 of M.V.Act, the prosecution must establish through valid and cogent evidence that the revision petitioner acted rashly or negligently. Therefore, to determine whether the offence is made out and whether the Trial Court and 1st Appellate Court rightly convicted the petitioner, this Court is to examine the entire oral and documentary evidence in its proper perspective. 2 (1997) 4 Supreme Court Case 241 7 16. The primary contention of the petitioner/accused is that there is no affirmative evidence on record linking the appellant/accused to the crime vehicle as its driver, and that no test identification parade was conducted. In order to assess this contention, the Court has carefully examined the material placed on record. 17. The prosecution has relied upon the testimony of PW.1, K. Govindu, who is stated to be an eyewitness to the accident in question. PW.1 supported the prosecution’s case with respect to both the manner of the accident and the identity of the accused. According to PW.1, while he was proceeding on his bicycle from Vemagiri towards Bommur, and upon reaching in front of the Andhra Bank situated beside the Horlicks factory, he observed the deceased walking ahead of him; at that moment, a lorry bearing registration No. AP16TU9873 approached at high speed and struck the deceased, causing him to fall and sustain injuries. There is no substantial dispute regarding the manner in which the accident occurred or the fact that the deceased died as a result of the injuries sustained therein. As previously noted, the defence has confined its challenge solely to the identification of the petitioner as the driver of the offending vehicle. 18. At this juncture, it is relevant to refer to the cross-examination of PW.1. He deposed that he saw the accused on the date of his testimony, i.e., on 04.09.2008, subsequent to the accident, whereas the incident admittedly occurred on 18.08.2005. 19. The Investigating Officer, K. Vara Prasad, who was examined as PW.11, testified that generally, during August, it tends to be dark around 6:30 p.m. due to insufficient natural light. He further admitted that Ex.P.1 does not mention that PW.1 can identify the driver of the offending vehicle. He also stated that, as no independent witnesses were available at the scene of the accident, he examined only the relatives of the deceased. As seen from Ex.P.14, the FIR, the name of the accused was not mentioned; accused was 8 merely referred to as the driver of the lorry bearing No.AP16 TU 9873. This clearly indicates that the identity of the driver of the offending vehicle was unknown at the time of the crime's registration. It is pertinent to note that the FIR was registered based on the statement of K. Govinda, examined as PW.1. 20. PW.2, K. Papi Naidu, stated that upon enquiry, he came to know that the accident was caused by a lorry and that the name of the driver was P. Linga Raju; however, he admitted that he has no personal knowledge of the accident. PW.3 also deposed regarding the manner in which the accident occurred. However, in his chief examination itself, he clearly stated that he did not see the driver of the offending vehicle. 21. It was elicited in the evidence of PW.3 that, after the accident, the police arrived at the scene and inspected the lorry, during which they found a driving licence. PW.3 stated that he saw the name 'Parimi Linga Raju' on the licence and admitted to having seen the photograph affixed thereto, though he did not observe any other particulars. PW.6, K. Yesu Rathnam, testified that the police observed the scene of the offence in his presence and prepared the observation report, marked as Ex.P.6. He further stated that the Sub-Inspector of Police seized certain documents, including a driving licence, from the lorry. However, during cross-examination, he stated that he did not make any enquiries about the driving licence shown to him by the police. The Investigating Officer, PW.11, testified that he showed a Xerox copy of the driving licence to the eyewitnesses, as he was unable to secure the original licence from the vehicle at the time of inspection. However, as evident from the record, the copy of the driving licence of the petitioner/accused, being one of the basic pieces of evidence necessary for registering the crime, was not placed before the Court. Therefore, it is not established that the Investigating Officer collected a copy of the driving licence from the lorry after the accident. 22. The Trial Court placed reliance on the evidence of PW.8, A. Sudhakar, who is admittedly the owner of the offending vehicle. He stated that in August 9 2005, in the evening, the accused rang him up to inform him about the accident. However, during cross-examination, PW.8 deposed that on the date of the accident, there was a spare driver accompanying the accused driver in the lorry. The accused did not inform him that he was driving the lorry at the time of the accident. It is the evidence of PW.8 that when he went to the scene of the offence, only the accused was present; the spare driver was absent, and the police informed him that the spare driver had absconded from the scene. Based on PW.8's evidence, it cannot be conclusively held that the accused was the driver of the offending vehicle at the time of the accident. On the contrary, his testimony shows that the accused was present at the scene after the accident. However, the prosecution has not alleged that the accused was present at the scene of the offence. In light of these facts, the evidence of PW.8 does not inspire confidence in connecting the accused with the commission of the crime. 23. Another piece of evidence relied upon by the prosecution is the trip sheet purportedly seized from the offending lorry, which bears the signature of the accused. The trip sheet is dated 17.08.2005; however, the columns indicating the point of origin and the destination are left blank. Notably, the accident occurred on 18.08.2005. Given these circumstances, it is difficult to conclusively establish, based solely on the trip sheet, that the offending vehicle was operating in the vicinity of the scene of the offence at the time of the accident. 24. Another significant aspect relied on by the prosecution is the surrender of the accused before PW.10, T. Charles, a Head Constable, which occurred on the morning of 23.08.2005, at approximately 9:00 a.m., while he was present at the police station. The prosecution relies heavily on it to establish the accused's involvement in the accident. PW.10 stated that the accused surrendered himself before him. This Court is of the view that the mere act of surrendering does not inherently equate to an admission of guilt or confirmation of one's role in the commission of the alleged crime. The 10 accused may have surrendered in order to cooperate with law enforcement, as a case had already been registered against him and he was suspected to be the driver of the offending vehicle. It would be unreasonable and legally impermissible to conclude, based on the accused’s surrender alone, that he was indeed the driver of the offending vehicle at the time of the accident. The surrender is, at best, an isolated fact that, without corroboration, cannot be stretched to imply the accused’s guilt. The prosecution’s reliance on this circumstance as a decisive piece of evidence to establish the accused’s role in the accident is, at the very least, tenuous and falls short of meeting the standard of proof required to sustain such a conclusion. 25. With regard to the evidence of PW.1 concerning the identification of the accused as the driver of the crime vehicle, the composite High Court of Andhra Pradesh, in the case of Piginaraji Ranga Rao V. State of Andhra Pradesh3, held that: Of course, PWs.1, 3 and 4 deposed that accused drove the lorry at the time of accident. The circumstances that there was no prior acquaintance between the witnesses and accused, and the fact that the lorry was stopped at a distance of 20 or 25 feet from the place of accident and the driver, after stopping the lorry, ran away from the place of accident, show that the witnesses had no opportunity to have a good look at the accused. In such circumstances, it is obligatory on the part of the Investigating Officer to elicit the descriptive particulars of the accused from the witnesses and to hold Test Identification Parade, which would establish the case of the prosecution beyond all reasonable doubt. When a witness, who had no prior acquaintance with the accused and who had seen the accused for the first time, for a few seconds, states to the police that he can identify the accused, the Investigating Officers should take steps for holding the Test Identification Parade, wherein the given case, the witnesses had considerable time and opportunity to observe the offender, the situation would be different. 26. Upon a careful examination of the evidence on record, it becomes evident that PW.1, the purported eyewitness, had no prior acquaintance or familiarity with the accused. Furthermore, the prosecution's own evidence reveals that the driver of the offending vehicle allegedly fled the scene of the 3 2009 (1) ALD (Crl.) 971 (AP) 11 accident immediately after the incident, without leaving any opportunity for a proper or sustained observation of his appearance by any witness present at the scene. The testimony of the investigating officer, who candidly admitted that during August, natural daylight tends to diminish by around 6:30 p.m., thereby resulting in poor visibility due to insufficient natural light. In the context of the present case, where the accident is said to have occurred during this twilight period, the possibility of making a clear and reliable identification of the driver becomes all the more doubtful. The diminished visibility at the relevant time of the incident seriously calls into question the accuracy and veracity of any subsequent identification made by a witness who, admittedly, had no prior acquaintance with the accused. Moreover, what further weakens the evidentiary value of the identification is the significant lapse of time, nearly three years, between the date of the accident and the identification of the accused before the Court. This prolonged time gap inherently affects human memory and increases the likelihood of error or mistaken identification. In the realm of criminal jurisprudence, especially in the absence of any corroborative evidence to support the witness's claim, such delay is a material factor which cannot be lightly ignored, particularly when the case hinges primarily on eyewitness identification. 27. In Siddanki Ram Reddy V. State of Andhra Pradesh4, the Hon’ble Supreme Court held that the eye witnesses had little time to see the accused, the substantive evidence should be sufficiently corroborated by a test identification parade held soon after the occurrence and any delay in holding the test identification parade may be held to be fatal to the prosecution case. 28. In Ronny Alias Ronald James Alwaris V. State of Maharashtra5, the Hon’ble Supreme Court held that while the identification of an accused at his trial, is substantive evidence it is, by its very nature, of a weak character. On the other hand, evidence of identification in a test identification parade is not 4 MANU/SC/0521/2010 5 1998 SCC (Cri) 859 12 substantive evidence, but is only corroborative evidence, which falls in the realm of investigation. Identification in the Court after a long lapse of time render it unsafe to rely upon an uncorroborated piece of such evidence. 29. The evidence of mere identification of the accused person at the trial for the first time is, by its very nature, inherently weak. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. 30. In view of the totality of these circumstances, the lack of prior acquaintance between the witness and the accused, the limited visibility at the time of the incident, the accused’s immediate flight from the scene, this Court is of the considered opinion that the possibility of mistaken identity cannot be ruled out with certainty. 31. It is a settled proposition of law that in a criminal trial, suspicion, however grave, cannot take the place of proof. The prosecution, to succeed, has to prove its case and establish the charge by adducing convincing evidence to ward off any reasonable doubt about the complicity of the accused. 32. For this, the prosecution case has to be in the category of "must be true" and not "may be true". In Rajiv Singh V. State of Bihar and another6 the Hon’ble Supreme Court held that: “It is the well-entrenched principle of criminal jurisprudence that a charge can be proved only when there is certain and explicit evidence to warrant legal conviction and that no person can be held guilty on pure moral conviction. Howsoever grave the alleged offence may be, otherwise stirring the conscience of any court, suspicion alone cannot take the place of legal proof. The well-established cannon of criminal justice is "fouler the crime, higher the proof". In unmistakable terms, it is the mandate of law 6 (2015) 16 SCC 369 13 that the prosecution, in order to succeed in a criminal trial, has to prove the charge(s) beyond all reasonable doubt”. 33. In consonance with the well-established principle that when two views are possible, the one favouring the accused must be adopted, this Court finds it appropriate to extend the benefit of doubt to the accused. 34. Upon a cumulative consideration of the evidence on record, and in the absence of cogent and convincing material establishing the guilt of the petitioner/accused, it cannot be said that the view adopted by the Courts below in convicting the petitioner is a plausible one. The prosecution has failed to prove the guilt of the petitioner/accused beyond reasonable doubt for the offences under Section 304A of the IPC and Sections 134(a) and (b), read with Section 187 of the Motor Vehicles Act. I am, therefore, of the considered view that both the Courts below erred in convicting the petitioner for the aforesaid offences. The judgment under challenge is found to be illegal, improper, and irregular, warranting interference by this Court in the exercise of its revisional jurisdiction under Sections 397 and 401 of the Cr.P.C. Consequently, the petitioner is entitled to an acquittal of the charges framed against him. Accordingly, the impugned judgments convicting the petitioner for the alleged offences are hereby set aside. The points are answered accordingly. 35. In the result, this Criminal Revision Case is allowed. The impugned judgment of conviction and sentences, dated 19.10.2009 made in Crl.A.No.32 of 2009, by the learned Principal Sessions Judge, East Godavari, Rajahmundry, affirming the impugned judgment of conviction and sentences, dated 03.02.2009, made in C.C.No.1028 of 2008 under Section 304A of the IPC and Sections 134(a) and (b) read with Section 187 of the Motor Vehicles Act, by the learned VII Additional Judicial Magistrate of First Class, Rajahmundry, are set aside and reversed. The personal bonds and surety bonds, if any, executed by the revision petitioner shall stand cancelled, and the sureties are discharged. Any fine amount paid by accused shall be 14 refunded to him after the expiry of the appeal period. The Registry is directed to transmit a copy of this order to both the Trial Court and the 1st Appellate Court, along with their respective records, forthwith. Interim orders, if any, granted earlier shall stand vacated, and all pending miscellaneous petitions, if any, shall stand closed. _____________________________ JUSTICE T. MALLIKARJUNA RAO Date: 08.09.2025 SAK 15 THE HONOURABLE SRI JUSTICE T. MALLIKARJUNA RAO CRIMINAL REVISION CASE NO: 1763 of 2009 Date: 08.09.2025 SAK