Ramakuri Rama Krishna vs The State Of A.P.
2022 Latest Caselaw 1639 AP

        HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO


                            Crl.R.C. No.112 of 2013


ORDER:

The Sub-Inspector of Police, Penamaluru Police Station, has filed

the charge sheet for the offence under Section.304(A) of Indian Penal

Code (for short "I.P.C").

2. The Court has taken cognizance for the offence under Section

304(A) I.P.C. and on conclusion of trial, the trial Court found the

accused guilty and convicted him for the offence under Section 304(A)

I.P.C. and sentenced the accused to undergo simple imprisonment for

one year.

3. The facts of the case were that one Nagavarapu Suresh who is

aged about four (4) years was playing in front of his house. At that time

the accused being the driver of the Auto bearing No.AP-16-X-8015,

drove the vehicle in rash and negligent manner, while proceeding from

Auto Nagar to Ramavarappadu road and in Gowrisankarnagar, Kanuru

Panchayat, hit the deceased boy and dragged him to a distance of about

10 feet. As a result, the deceased succumbed to injuries.

4. In the mean time, the LW2 Mendam Shyam, who was coming on

the road on his bike raised shouts and got stopped the auto driver.

Immediately, the complainant went there and noticed the deceased with

bleeding injuries on head, face, shoulders. Immediately he shifted the

deceased to Vijayawada Government Hospital. The Doctor tested him

and declared dead.

5. On the complaint lodged by mother of the deceased, the Sub-

Inspector of police registered complaint under Section 304-A I.P.C. and

filed charge sheet in the Court.

6. The prosecution has examined as many as four (4) witnesses in

order to establish the case. PW1 is M.Satyam Babu, who is eye witness

to the incident who noticed the accident and raised shouts and stopped

the Auto, caught hold of the accused and handed over to the police.

7. As per the prosecution case, the deceased boy was playing on the

road. PW1, PW2, PW4 and PW7 were eye witnesses, who stated about

the accident that, the driver of the Auto was proceeding with about

fifteen (15) passengers. The Auto hit the boy who was playing on the

road and on noticing the same, the witnesses raised shouts but the

Auto went forward with same speed about 10 yards dragging the

deceased boy.

8. The ocular evidence of PW1, PW2, PW4 and PW7 goes to show

that the deceased died to the accident caused by Auto, drove by the

petitioner herein. There is no dispute with regard to the death of the

deceased. In the trial Court, the petitioner has taken the defense that

he is not the driver of the auto and he was falsely implicated and the

accused was identified before the Court for the first time. Immediately,

after the accident, the police did not conduct any test identification

parade. No witness stated to the police the descriptive particulars of the

accused and that they can identify the accused if shown to him. In such

circumstances, without conducting test identification parade, the

identity of the accused before the Court cannot be treated as proper

identification. He relied on the judgment in "K. Rajayya Vs. State of

Andhra Pradesh1."

9. Learned Judge after considering the evidence has convicted the

accused and turned down the contention raised by the accused relying

on the identification of the accused on the ground that PW2 followed

2010 (2) ALD (Crl.) 376 (AP)

the accused/driver and caught hold of him and handed him over to the

police. Relying on the evidence of PW1, PW2, PW4 and PW7, the trial

Court has convicted the accused without any haste and the sole defense

that was taken by the petitioner/accused is that he is not driver of the

Auto.

10. Against such Calender and Judgment, the appellant/accused

filed an appeal before Court of learned Session: Metropolitan Division:

Vijayawada in Criminal Appeal No.48 of 2012.

11. The lower appellate Court dismissed the criminal appeal

confirming the conviction of the appellant vide judgment dated

07.01.2013 in Criminal Appeal No.48 of 2012.

12. Aggrieved by the conviction imposed by the lower appellate Court,

the present Criminal Revision Case is filed.

13. Heard both sides.

14. Learned counsel for the petitioner submits that there is a

discrepancy with regard to the scene of offence and there is no such

evidence about the driver, driving of the Auto in rash and negligent

manner which are the primary ingredients for the offence under Section

304A I.P.C.

15. Learned counsel for the petitioner relied on the Judgment of the

Hon'ble Apex Court in "Mahadeo Hari Lokre Vs the State of

Maharashtra2". In the said case, the victim suddenly crossed the road

from west to east without taking note of the approaching bus. There

was every possibility of the victim dashing against the bus, without the

driver becoming aware of his crossing, till it was too late. If a person

suddenly crossed the road, the bus driver however slow would not be in

AIR 1972 SC 221

a position to stop the accident. Relying on this part of the judgment, the

learned counsel for the petitioner prayed this Court to set aside the

conviction and to acquit the accused for the offence under Section 304A

I.P.C.

16. Learned counsel for the petitioner also relied on the judgment of

the Hon'ble Apex Court in "Satyawan Vs State of Haryana" (Arising out

of impugned final judgment and order dated 28.01.2015 in CRR No.295

of 2015 passed by the High Court of Punjab & Haryana, at Chandigarh),

for the proposition that in the above cited case the incident took place

near a bus stand where the victim is said to be playing on a road

unescorted by any elder. But the facts in the present case are different

to the above cited case.

17. In the present case, the victim/deceased boy was playing along

with other children on the road and the auto driver is carrying

passengers of about fifteen (15) persons in the vehicle. He drove the

vehicle in rash and negligent manner and dashed the boy and the boy

was dragged for a distance of 10 yards. The incident itself proves that

there is negligence on the part of the driver. This defense has not been

taken by the petitioner in the trial court as well as in the lower appellate

Court. He has raised the above said contention for the first time before

this revisional Court. The defense, taken by the petitioner/accused in

the trial Court is that he is not the driver of the auto and that he was

falsely implicated in the case and no test identification parade was

conducted.

18. The Gujarat High Court in "Mahadev Bhagwanji Patel V. State of

Gujarat3" has turned down the defense taken by the accused therein.

The defense which was taken in the said case is that, "If a pedestrian

(2001) 4 GLR 3424

suddenly crosses a road without taking note of the approaching the

bus, there is every possibility of his dashing against the bus without the

driver becoming aware of it. The bus driver cannot save accident

however slowly he may be driving, and therefore, he cannot be held to

be negligent in such a case." On considering such defense the Gujarat

High Court was not inclined for such evidence and convicted the

acccused for the offence under Section 304A I.P.C.

19. Regarding the identification of accused, the Hon'ble Apex Court in

"Rabindra Kumar Pal alias Dara Singh Vs Republic of India4" held that

the identification of the accused for the first time before the trial Court

is admissible in evidence. In the present case, PW2 caught hold of the

accused and handed over to the police. Hence, the identification of the

accused is rightly found out by the trial Court. When the eye witness

had an ample opportunity to see the accused at the scene of offence and

they have identified the accused before the Court, there is no need of

the Test Identification Parade.

20. Hence, there is no suggestion of identification parade in the

present case as the accused was caught hold by PW2 and he was

handed over to the police at the time of the incident. As there is ample

evidence regarding the rash and negligent driving of the vehicle by the

accused, the contention raised by the petitioner relating to the

identification parade is hereby turned down. The accused is found

guilty for the rash and negligent act under Section.304A of I.P.C. and

both the Courts below convicted him for the said offence.

21. I find no reasons to interfere with the judgments of the both the

Courts below.

(2011) 2 SCC 490

22. Accordingly, the Criminal Revision Case is dismissed.

Miscellaneous Petitions pending, if any, shall stand closed.

_______________________________________ JUSTICE TARLADA RAJASEKHAR RAO

Date: 07-04-2022 EPS

HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

Crl.R.C. No.112 of 2013

Date: 07-04-2022

Harin/EPS