Md. Qutubuddin, Maneti V, ... vs The State Of A.P., Rep. By P.P., ...
2022 Latest Caselaw 3699 Tel

           THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI

            CRIMINAL REVISION CASE No.511 OF 2010

ORDER:

This Criminal Revision Case, under Sections 397 & 401 of

Cr.P.C., is filed by the petitioners/accused, challenging the

judgment, dated 02.03.2010, passed in Criminal Appeal No.89 of

2009 by the learned Metropolitan Sessions Judge, Hyderabad,

wherein and whereby, the judgment, dated 16.03.2009, passed in

C.C.No.21 of 2008 by the XVII Additional Chief Metropolitan

Magistrate, Hyderabad, convicting the petitioner for the offence

punishable under Section 338 IPC, however, the sentence of simple

imprisonment of one year was modified to that of six months, but

sustaining the sentence of fine.

2 The factual matrix that led to the filing of the present Criminal

Revision Case is that the Sub-Inspector of Begum Bazar filed charge

sheet against the petitioner for the offence punishable under Section

338 of IPC alleging that on 10.10.2005 at about 5.30 AM, while one

Yadagiri was crossing the road near Syndicate Bank, Mojamjahi

market, a lorry bearing No.AP 13 T 974 coming from Nampally side

and proceeding towards Afzalgunj driven by the petitioner, dashed

against Yadagiri due to which Yadagiri fell down and sustained

grievous injuries to his both legs. The lorry fled away from the spot.

3 The petitioner was tried for the offence punishable under

Section 338 of IPC. During the course of trial, the prosecution

examined P.Ws.1 to 4 and got marked Exs.P.1 to P.4. The trial Court

after appreciating the evidence available on record, both oral and

documentary, found the petitioner guilty of the offence punishable

under Section 338 IPC and accordingly convicted and sentenced him

to suffer simple imprisonment for one year and also to pay a fine of

Rs.1,000/-, in default, to suffer simple imprisonment for three

months. Aggrieved by the said judgment of the trial Court dated

16.03.2009, the petitioner preferred Criminal Appeal No.89 of 2009

on the file of the Metropolitan Sessions Judge, Hyderabad, which,

however, came to be dismissed by judgment dated 02.03.2010,

however, reducing the period of sentence from one year to that of six

months, but by maintaining the fine amount. As against the said

judgment of the appellate Court, the petitioner preferred the present

Criminal Revision Case.

4 Heard Sri Vamsheedhar Reddy, learned counsel for the revison

petitioner and Sri K.Venkateswara Rao, learned Assistant Public

Prosecutor representing the State and also perused the record.

5 The learned counsel for the revision petitioner submitted that

both the Courts below erred in believing the evidence of P.W.2, who

in fact was not subjected to cross examination. Hence a benefit of

doubt has to be given to the revision petitioner since the evidence of

P.W.2 was eschewed. It is his further contention that the crime

vehicle was not tested by the Motor Vehicles Inspector to find out

whether there was any mechanical defect in the vehicle. He further

contended that no test identification parade was conducted since it is

the case of the prosecution that after the accident the lorry fled away

from the spot. He therefore, prayed to acquit the petitioner of the

said offence.

6 On the other hand, the learned Assistant Public Prosecutor

supported the concurrent findings of both the Courts below and

submitted that no interference is called for by this Court in exercise

of revisional jurisdiction under Sections 397 and 401 Cr.P.C.

7 A perusal of the record shows that the prosecution of the

petitioner for the offence under Section 338 IPC was on the foot of

Ex.P.1 complaint lodged by P.W.1 who is the wife of the injured -

P.W.2. But P.W.1 is not an eyewitness to the accident.

8 P.W.2, the injured, deposed that at about 9.00 AM or so, the

accident occurred wherein he sustained injuries and his legs were

amputated. P.W.2 was not cross examined before the trial Court.

The trial Court observed that the evidence of P.W.2 remained

unchallenged.

9 As seen from the record it is to be seen that since P.W.2 did not

turn up for cross examination, the petitioner filed a petition to recall

P.Ws.1 and 2 for cross examination and that petition was allowed.

In spite of the same, P.W.2 did not turn up for cross examination.

Therefore, the evidence of P.W.2 was eschewed.

10 P.W.3 is the doctor who treated P.W.2 for the injuries

sustained by him. According to him he amputated both the legs of

P.W.2 above knee. He stated that the injuries could be possible if a

person falls from height.

11 P.W.4 is the investigating officer who registered the FIR, took

up investigation and filed the charge sheet. According to him, on

30.08.2006 the petitioner surrendered before him.

12 P.W.4 did not examine any independent witnesses to the

accident. Moreover, immediately after the accident P.W.2 fell

unconscious. The prosecution has not taken steps for conducting of

test identification parade for the identification of the accused.

According to the charge sheet the accident occurred at 5.30 AM

whereas P.W.2 stated that the accident took place at about 9.00 AM

or so. It is also the case of the prosecution as well as P.W.2 that

immediately after the accident the crime vehicle fled away and that

P.W.2 fell unconscious. In such circumstances, identification of the

petitioner as the person responsible for the accident creates some

doubt. Further, P.W.4 stated that the petitioner surrendered himself

before P.W.4 on 30.08.2006 i.e. nearly 14 months after the date of

accident. Therefore, all the above aspects are creating suspicion

whether the petitioner was the driver of the crime vehicle on the date

of accident or not. Further, the crime vehicle was not subjected to

examination by the Motor Vehicles Inspector to find out whether

there was any mechanical defect in it in order to cause the accident.

P.W.4 states that the petitioner himself surrendered before him

confessing the factum of accident, which cannot be taken into

consideration in view of Section 25 of the Indian Evidence Act.

13 Therefore, taking the totality of the circumstances into

consideration, this Court is of the considered opinion that the

prosecution failed to bring home the guilt of the petitioner for the

offence punishable under Section 338 of IPC beyond all reasonable

doubt and accordingly, the petitioner is entitled to acquittal.

14 In the result, the Criminal Revision Case is allowed, setting

aside the judgment dated 02.03.2010, passed in Criminal Appeal

No.89 of 2009 on the file of the Curt of the Metropolitan Sessions

Judge, Hyderabad and also the judgment, dated 16.03.2009, passed

in C.C.No.21 of 2008 by the XVII Additional Chief Metropolitan

Magistrate, Hyderabad. Bail bonds of the accused shall stand

cancelled. Fine amount if any paid by the revision petitioner shall be

refunded to him.

15 Miscellaneous petitions, if any, pending in this Criminal

Revision Case shall stand closed.

_______________________ JUVVADI SRIDEVI, J.

Date: 14.07.2022 Kvsn