Abu v. State of Kerala — 1981 DIGILAW 278 (KER)

ORDER V. Khalid, J. 1. The petitioner was the accused in C.C. No. 212 of 1977 of the Judicial I Class Magistrate's Court, Ettumanoor. He was tried for offences punishable under S.279, 337, 338 and 304A I.P.C. He was sentenced to undergo rigorous imprisonment for six months for the offence under S.337 and 18 months imprisonment for offence under S.338 and 304A I.P.C. with a direction that the sentences shall run concurrently. He filed an appeal before the Sessions Court, Kottayam, which was dismissed. Hence this revision. 2. The prosecution case is as follows: The petitioner was driving a Kerala State Road Transport Corporation bus K.R.T. 2385 on 30th April, 1977 along the M.G. Road from north to South at the Garithas Hospital Junction. At 1.15 a.m. the bus hit the rear side of Lorry No. KLK 8061 which was parked on the eastern side of the road loaded with timber. As a result of the collision two persons in the bus died and eight persons sustained grievous injuries. The prosecution case was attempted to be proved by examining P.Ws. 1 to 13. P.Ws. 1, 2, 3, 4 and 5 were occurrence witnesses. Others were official witnesses. The evidence of the witnesses was believed by the courts below to find the petitioner guilty. 3. The learned counsel for the petitioner put forward a strong plea that the courts below made a completely erroneous approach to the facts and circumstances of the case and should have considered the entire prosecution case through a different angle. According to him, the incident took place not because of the negligence of the petitioner but because of the most negligent manner in which the lorry was kept on the road. Before examining this case, I think it necessary to consider the evidence in the case supplied by the Prosecution Witnesses. P.W. 1 was a passenger in the bus. He spoke about the incident. He spoke about the fact that the bus was being driven with speed and that the road was straight. He deposed that there was parking light on the lorry but not on the logs of wood, that he was able to see the park light from a distance of 100 feet. P.W. 2 was also a passenger in the bus. He said that the bus was being driven in good speed and added that it was going with speed more than ordinary. P.W. 2 was also a passenger in the bus. He said that the bus was being driven in good speed and added that it was going with speed more than ordinary. In cross-examination he stated that there were lights on the rear side of the lorry which were fixed to the lorry which he saw from a distance of 60 ft. Both P.Ws. 1 and 2 deposed that no vehicle came at that time from the opposite direction. P.W. 3 is a Checking Inspector. He deposed that there were red lights behind the logs of wood and that there were lights down below the lorry also. In cross-examination he deposed that he was able to see the park light from a distance of 200 yards. P.W. 4 was the cleaner of the lorry. He was sleeping on the bumber of the lorry. He stated that the lorry had danger light and park light and danger light on the logs of wood. After the impact he was thrown out. The lorry had reached there about 45 minutes before the accident. He admitted that the logs of wood were projecting outside the lorry. He deposed that no damage was caused to the parking lamp. P.W. 5 is the conductor of the bus. P.W. 12 was the Sub Inspector of Police. He deposed that he prepared the mahazar Ext. P-18. He stated that he had noted in the mahazar to what distance the logs of wood were projecting outside the body of the lorry. He deposed that there was danger light at the end of the logs of wood. He added that this danger light was at the end of the log of wood on the rear side of the lorry. When he was asked whether this was stated in the mahazar his answer was that if it was not seen in the mahazar it must be an omission. He then added that he omitted to mention the same in the mahazar and that it was a clerical error. There was an electric post in front of the lorry. When he was asked whether there was light on the electric post and whether he had noted it in the mahazar his answer was that he did not think it important and therefore did not note it. It is necessary to note that Ext. There was an electric post in front of the lorry. When he was asked whether there was light on the electric post and whether he had noted it in the mahazar his answer was that he did not think it important and therefore did not note it. It is necessary to note that Ext. P-18 mahazar does not indicate that there was danger light at the end of the logs of wood which were projecting outside the platform of the lorry in the back side. From Ext. P-18 it is seen that one log of timber was projecting four meters in length outside the platform of the lorry. It was one meter 13 cms. in girth. There was another log of wood 63 cms. away from the earlier mentioned log which was projecting 4 meters 87 cms. outside the rear extremity of the platform. I have referred to these materials to emphasise the undisputed fact that logs of wood were projecting outside the platform on the rear side to a maximum length of 4.87 meters equivalent to 16 and odd feet. There were in all 18 logs of wood. While P.Ws. 1 and 2 deposed that there was no danger light at the end of the logs of wood projecting, P.W. 3 Checking Inspector deposed that there was. The Sub Inspector of Police also deposed so. His explanation why it was not noted in the mahazar was that it might be a clerical error or an omission. This aspect of the case is extremely important in considering and deciding whether the accident took place as a result of the rash and negligent act on the part of the petitioner or was attributable to the negligence of the lorry driver in parking it with 18 logs of wood, two of them projecting to an unpermitted length of 16 and odd feet. On the materials on record I have no hesitation to hold that P.Ws. 12 and 4 were not speaking the truth when they deposed that there was danger light at the end of the projecting log of wood. If the courts below had considered this aspect of the case in the proper perspective and if the evidence of the witnesses was discussed by the courts below giving due importance to this aspect I would have had the advantage of such a discussion. If the courts below had considered this aspect of the case in the proper perspective and if the evidence of the witnesses was discussed by the courts below giving due importance to this aspect I would have had the advantage of such a discussion. Unfortunately, the courts below have not chosen to discuss the evidence in the case with this important aspect in view. That is whyhave chosen to consider the evidence of the witnesses in the light of Ext. P-18 mahazar. I feel compelled to observe that the case put forward by the Inspector is not believable. The Sub Inspector realised that there was a serious omission on his part in not noting the absence of danger light which would affect the prosecution case to a large extent and that perhaps was responsible in his giving an incorrect statement before court. The park light at the rear side of the lorry is a fixed one. The evidence in the case is consistent that there was park light. The danger light is not fixed. It is removable. The fact that there was danger light at the rear end of the log of wood projecting would have been noted by the Sub Inspector if there was one. He would have taken it into custody and produced it as a material object if there was one. These circumstances are sufficient in my view to hold that the projecting logs of wood did not carry at its end a danger light. 4. The courts below have proceeded on the assumption that if the evidence of the prosecution witnesses that the lorry was coming at a high speed is accepted, the conclusion would necessarily follow that the accident took place on account of the rash and negligent driving of the petitioner. The learned counsel for the petitioner rightly contended that there was no evidence in the case supplied by any prosecution witness as to what was the speed at which the petitioner was driving the bus. One witness (P.W. 2) has deposed that a speed above 25 miles per hour would be high speed according to him. No other witness has given what, according to him, would be high speed. One witness (P.W. 2) has deposed that a speed above 25 miles per hour would be high speed according to him. No other witness has given what, according to him, would be high speed. The tendency to hold a driver responsible for every accident on the prosecution evidence that he was driving the vehicle with speed cannot be justified in law unless such evidence is corroborated by other necessary materials. To presume negligence once an accident takes place resulting in death or injury to passengers or pedestrians is not correct in law. Not only must there be evidence of rashness or negligence acceptable to the court there must be proof that the rash or negligent act of the accused was the proximate cause of the death and that there must be a direct nexus between the death of a person and the rash or negligent act of the accused. 5. It is in this context that the learned counsel for the prosecution found fault with the investigation in this case. According to him, the Investigating Officer should have taken care to bring on record all the necessary materials for the court to be satisfied that the accident took place only because of the negligent act of the driver. To prove an accident like this involving in the death of two persons and in considerable injury to others evidence should have been more acceptable. According to the petitioner's counsel the petitioner was driving a Kerala State Road Transport Corporation bus. It is common knowledge that these buses have a time schedule. The Inspector of Police could have very easily ascertained the starting time of the vehicle and the arrival time of the vehicle at its destination. He could easily ascertain also the distance between the two points from which the court would have been in a very comfortable position to conclude about the speed with which the vehicle was going. The materials in this case indicate that the petitioner took charge of the vehicle at Perinthalmanna. He had to reach Kottayam via, Palai. He had passed Palai and had crossed Ettumanoor also. He was only a few kilometres away from Kottayam. From the statement of the accused under S.313 it is seen that the accident took place at one midnight. He reached Palai bus stand at 12 midnight. He started from these at 12.25. He had to reach Kottayam via, Palai. He had passed Palai and had crossed Ettumanoor also. He was only a few kilometres away from Kottayam. From the statement of the accused under S.313 it is seen that the accident took place at one midnight. He reached Palai bus stand at 12 midnight. He started from these at 12.25. The petitioner's counsel has collected materials from the Kerala State Road Transport Corporation regarding the timings. According to him, the distance between Perinthalmanna to Kottayam is 221.7 kms. He took the vehicle from Perinthalmanna at 6 p.m. He was due to arrive at Kottayam at 1.15 a.m. On route, he had to stop at a few stations. The petitioner's learned counsel submitted that since the accident took place at 1 a.m. at a place which was only a few kilometres away from Kottayam where he should reach at 1.15, it has to be presumed that he was going within permissible limits of speed which according to him is 40 kms. per hour. I cannot depend upon these materials which do not find a place in the evidence, though the Public Prosecutor did not venture to contradict the submissions made by the petitioner's counsel on those things. However, I cannot, but observe, that the investigation in the case suffers from a serious omission in not making available to the court this important piece of evidence which would have helped the court to a large extent to find out what really the speed of the vehicle was. In addition to this, the investigation has not supplied materials as to whether at the accident spot, there was light or not. The police officer has not clearly stated whether the electric post at that place in front of the lorry had light on it or not. All that he deposed was that it did not strike him as important. This answer is as evasive as his answer about his omission to mention the existence of the danger light at the extremity of the projecting log of wood. In this context it will be useful to refer to the evidence of P.W. 2, according to whom, a speed above 25 miles per hour would be high speed. This answer is as evasive as his answer about his omission to mention the existence of the danger light at the extremity of the projecting log of wood. In this context it will be useful to refer to the evidence of P.W. 2, according to whom, a speed above 25 miles per hour would be high speed. In the absence of any clear evidence from the prosecution about the speed, the evidence of P.W. 2, the fact that the bus was near its destination and the statement of the accused should together be taken to assume that the bus was coming at a speed of 40 kms. per hour which in the circumstances of the case cannot be said to be high. At night if a bus goes at this speed on a straight road it cannot be said that the speed was high. 6. In this context it is necessary to examine the evidence of the witnesses who deposed that they were able to see the parking light of the lorry at a distance of 200 yards in the case of the Checking Inspector P.W. 3, 60 feet in the case of P.W. 2 and 100 feet is the case of P.W. 1. Persons with even little experience of driving will doubt the correctness of these submissions, especially for the reason that the parking lights which are down below the logs of wood would not be easily visible to those sitting in the bus. I will assume that all the witnesses who deposed in this case were awake at midnight because Kottayam was fast approaching. Some of the witnesses were sitting in the fifth and sixth row in the bus. Their vision has to be through the wind screen in front. I am not in a position to easily accept the evidence of the prosecution witnesses that they were able to see the park light at a distance of 100 feet. All that I say is that this evidence cannot be accepted as reliable. Even conceding that this evidence can be accepted the question still remains as to whether the logs of wood would be visible from this distance. All that I say is that this evidence cannot be accepted as reliable. Even conceding that this evidence can be accepted the question still remains as to whether the logs of wood would be visible from this distance. Here again, the investigation should have been careful to supply materials about the height at which the driver was sitting and the relative height of his position with the height of the lorry and the logs of wood above the platform of the lorry. One cannot lose sight of the important fact that the driver himself was risking his life if he drove the vehicle negligently because he was the man who was in the greatest danger of being smashed by the projecting log of wood if that log of wood was visible to him. It is again common experience that a driver of a vehicle tries to deflect his vehicles to overtake or to pass a vehicle kept stationary on the road in front of him not from a long distance but at a reasonable distance from the vehicle which has stopped. There is no case that the petitioner was sleeping and that he deflected the vehicle right at this spot where the projecting end of the log of wood was. It cannot be said with any certainty that the logs of wood projecting to a distance of 16 feet would be easily visible from moving vehicle with the help of its lights alone. It often happens that the driver who sees the parking light of a lorry manoeuvres his vehicle depending upon that parking light. In the absence of a danger light it cannot be said that the driver was rash and negligent when he attempted to deflect his vehicle at a distance of 16 feet from the rear side of the lorry where the platform is. If the entire case is viewed thus, it will be seen that the prosecution has not succeeded in establishing that the accident took place purely because of the negligence of the driver, beyond reasonable doubt. 7. In this connection, it will be useful to refer to some of the provisions of the Motor Vehicles Act and Rules which impose certain restrictions on drivers of vehicle carrying projecting articles. 7. In this connection, it will be useful to refer to some of the provisions of the Motor Vehicles Act and Rules which impose certain restrictions on drivers of vehicle carrying projecting articles. Under S.81 of the Motor Vehicles Act, no person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to remain at rest on any road in such a position or in such a condition or in such circumstances as to cause or be likely to cause danger, obstruction or undue inconvenience to other users of the road. This restriction should have been respected by the person in charge of the lorry kept stationary on the road. I will have to examine with reference to the Rules whether the driver of the lorry was careful to respect the restrictions imposed on him when he was carrying logs of wood projecting far outside the platform of the lorry. 8. R.395 of the Kerala Motor Vehicle Rules carries the caption 'projecting load-restriction in transport of - (1) Limits of Projection'. The said rule reads: "No person shall drive, and no person shall cause or allow to be driven in any public place any motor vehicle which is loaded in a manner likely to cause danger to any person or in such a manner that the load or any part thereof or anything extends.- (a) laterally beyond the side of the body or beyond a vertical plane in prolongation of the side of the body; (b) to the front beyond the foremost part of the vehicle; (c) to the rear to a distance exceeding one hundred and twenty two centimetres beyond the rear-most part of the vehicle excluding any luggage carrier; and (d) in height by a distance which exceeds three hundred and thirty five centimetres from the surface upon which the motor vehicle rests."� * * * * We are here concerned more with sub-clause (c) since it is the rear portion that is hit by the bus. This rule lays down that the load which a vehicle carries shall not exceed beyond the rear-most part of the vehicle to a distance exceeding 1.22 metres. In this case the projection from the rear-most part is 4.87 metres corresponding to 16 and odd feet. This rule lays down that the load which a vehicle carries shall not exceed beyond the rear-most part of the vehicle to a distance exceeding 1.22 metres. In this case the projection from the rear-most part is 4.87 metres corresponding to 16 and odd feet. This therefore is a clear violation of the requirement of this rule by the driver of the vehicle which was parked on the road. R.395(2) is also relevant, which I read for a proper appreciation of the contentions put forward: "(2) Precaution with goods vehicles.- Clause (c) of sub-rule (1) shall not apply to a goods vehicle when loaded with any pole or other projecting thing so long as- (a) the projecting load falls within the limits of the body of a trailer being drawn by the goods vehicle ; or (b) the distance by which the pole or other thing projects beyond the rear-most point of the vehicle does not exceed one hundred and eighty three centimetres and there is attached to the rear to such pole or other thing in such a way as to be clearly visible from the rear, at all times a red flag of dimensions not less than sixty one centimetres by sixty-one centimetres and at night a lamp in addition to the prescribed lamps of the vehicle, so arranged as to show a red light to the rear. * * * * Under this rule, the requirement under R.395(1)(c) is removed in two cases (1) where the projecting load falls within the body of a trailer and (c) when a red flag of the dimensions given therein is attached to the rear of the projecting material which cannot exceed 1.22 metres and at night in addition to the prescribed lamps of the vehicle another lamp so arranged as to show a red light to the rear. The requirement is made abundantly clear in this rule. The rule requires when there is projection to have a red flag at all times and a lamp at night in addition to the red light fixed to the rear. In this case on my finding that there was no light at the end of the projected log of wood there was violation of this rule. There was further violation since the projection exceeded far more than the permissible 1.22 metres. In this case on my finding that there was no light at the end of the projected log of wood there was violation of this rule. There was further violation since the projection exceeded far more than the permissible 1.22 metres. There is also the further violation of the rule that the red flag which would have been there at all times was also not present. Thus, the driver of the lorry has violated S.81 having kept the vehicle in a dangerous position and has violated R.395(1)(c) and 395(2). 9. The case of the petitioner was strongly put forward by his counsel basing on these violations. The submission made is that the petitioner who was driving at a normal speed would expect other vehicles on the road which are stationary to be kept in conformity with the conditions laid down under the Motor Vehicles Rules. According to him, in the absence of a red light at the rear most part of the log of wood a vehicle at night even with its head lights on will not be in a position to clearly locate the logs of wood. The driver coming from behind need deflect only when he reaches the vehicle ahead of him which is stationary within sufficient limits. In other words, the projection upto 1.22 metres alone having been allowed under the rules, the bus could be deflected at a distance of 2 or 3 metres. It is evident that the petitioner deflected the bus at a distance of about 5 metres because the casualties are to those on the left side of the vehicle and not on the right side: The log of wood projecting got thrust into the glass panes in front of the bus on the left side for the reason that the driver took the turn to overtake the lorry from a distance of about 16 feet. He is not expected to take a turn from any greater distance. From experience, one will not be wrong in saying that in a dark night, a person in a vehicle with head lights on, will not get a clear picture of another vehicle kept at rest ahead of it from a distance. The petitioner's counsel mounted a serious criticism of the evidence of P.Ws. From experience, one will not be wrong in saying that in a dark night, a person in a vehicle with head lights on, will not get a clear picture of another vehicle kept at rest ahead of it from a distance. The petitioner's counsel mounted a serious criticism of the evidence of P.Ws. 1, 2 and 4 to the effect that they could see the rear light of the vehicle from a distance of two hundred yards, 100 feet or 60 feet. According to him, the evidence cannot be accepted without demur. In this case, more so because the rear light would be obstructed from vision because of the projecting log of wood. Because of the projecting logs, the petitioner also would suffer from the same disability of not having a clear vision of the rear side of the lorry. The fixed lights in the rear side of the lorry would not be clearly visible because of the projecting logs of wood. The impact must have been sudden and the logs of wood got thrust into the vehicle not because the petitioner was driving at high speed but because of the projection of the log of wood in the lorry. I find that these submissions are entitled to weight. I am not able to dispel an impression in my mind beyond reasonable doubt that in this case the accident was largely contributed by the negligence of the driver of the lorry in keeping the lorry with logs of wood in the manner it was kept. 10. The conviction and sentence can be supported only if the evidence of the passengers in the bus is accepted in to without testing its correctness from the manner in which the entire case is projected by the petitioner's counsel. I do not think I will be justified in accepting the evidence of the witnesses completely discarding this vital aspect available from the materials on record. The investigation has not been effective in this case in supplying to the court all the necessary materials in a case like this. I am not very much impressed with the evidence of the passengers of the bus when they deposed that they could see the rear lights of the vehicles from a distance at night and also from their evidence that the vehicle was coming at high speed. I am not very much impressed with the evidence of the passengers of the bus when they deposed that they could see the rear lights of the vehicles from a distance at night and also from their evidence that the vehicle was coming at high speed. In the absence of materials about the approximate speed of the vehicle, the benefit of any doubt should necessarily go, in the peculiar circumstances of this case, to the accused. As already indicated neither a flag nor red light necessary under R.395(2) has been seized by the Investigating Officer and produced as material objects. The scene mahazar belies the case of P.W. 4 and P.W. 12 that there was red light. The prosecution has not taken care to bring out the distance from Perintalmanna to Kottayam, the time at which the bus started and the time by which the bus was expected to reach Kottayam. Under these circumstances, I hold that this unfortunate accident took place not because of the rash and negligent driving of the petitioner but because of the negligence of the driver of the lorry at rest in front. The Appellate Court was not justified in holding that by the mere fact that the cleaner of the lorry was thrown on the road it can be assumed that the vehicle was coming at high speed; it need not be so because even if the vehicle was coming at only 20 miles speed the impact would have thrown a person sleeping on the bumper on the road. 11. Learned counsel for the petitioner invited my attention to various authorities in support of his contention that in such cases courts will have to consider whether the accident was the direct result of the driver's negligence or was contributed by the Act of some others. Among the cases cited, the one reported in S. N. Hussain v. State of Andhra Pradesh ( AIR 1972 SC 685 ) is useful as it approximates with the facts of the instant case. In that case the appellant before the Supreme Court who was a bus driver, charged under S.304A and 337 IPC was acquitted by the trial court but was convicted by the High Court in appeal. The Supreme Court in further appeal acquitted him. The facts of the case can be usefully referred to. In that case the appellant before the Supreme Court who was a bus driver, charged under S.304A and 337 IPC was acquitted by the trial court but was convicted by the High Court in appeal. The Supreme Court in further appeal acquitted him. The facts of the case can be usefully referred to. On 1st January, 1966 the bus driven by the accused left Kurnool at about 6.15 a.m. and reached the railway level cross at about 6.30 or 7 a.m. The level crossing is in charge of a gateman and it is the duty of the gateman to close the gate when the train is expected to pass by. At the time when the appellant reached the gate it was open. He crossed the gate when suddenly a goods train dashed against the bus on the rear side with the result that the bus was thrown off causing serious injuries to many and the death of one. The charge against the accused was that he was rash and negligent in crossing the railway track. The Supreme Court set aside the order of conviction and held that on the peculiar facts of the case the driver could not be held guilty of criminal negligence merely because he did not stop at the gate when the road signal situated at some distance away from the crossing wanted him to stop. The Supreme Court acquitted the accused on the ground that the accident took place not directly because of the rash and negligence of the accused before it but because of other contributory factors. It was the duty of the gateman to close the gate. The bus driver could justifiably cross the gate since it was open. Similar is the case on head. If the lorry had been parked conforming to the statutory requirements mentioned above, the impact would not have taken place in the manner it took place in this case. The projecting part of the log of wood entered the left side of the windscreen which means that the right side had already passed away from the log of wood. If the projecting logs of wood had the red flag and red light the driver would have been in a position to see and identify them. The accident therefore was not directly referable to the driving of the accused. 12. If the projecting logs of wood had the red flag and red light the driver would have been in a position to see and identify them. The accident therefore was not directly referable to the driving of the accused. 12. I have given my anxious consideration to the facts and circumstances of this case. In my judgment, the prosecution has not proved beyond reasonable doubt that the accident took place because of the rash and negligent act of the petitioner. I hold that the petitioner is entitled to benefit of doubt. I quash the conviction and sentence entered against the petitioner and allow this Criminal Revision Petition.