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2010 DIGILAW 220 (KER)

Vijayan v. State Of Kerala

2010-03-12

P.S.GOPINATHAN

body2010
Judgment : 1. At 2.15 p.m. on 18.1.1995 at Krishnapuram along Thiruvananthapuram - Nagercoil Road, a KSRTC bus bearing No.P.403 driven by the revision petitioner and a Maruthi car bearing No.KL 01/B 1819 hit against each other. As a result, Daniel, the driver of the car as well as his father Samuel, one of the passenger sustained injuries to which they succumbed. Pw1, the nephew of Samuel and Pw2, the wife of Daniel, who were other passengers in the car had also sustained injuries. Pw3, a relative of the deceased, who was coming in another car, behind the maruthi car, gave Ext.P1 statement on the basis of which, Pw9, a Head Constable attached to Nagercoil Police Station registered a case as Crime No.29/95 for offences under Section 279, 337 and 304A IPC. The investigation was taken over by the Circle Inspector of Police, Neyyattinkara, who after investigation filed final report against the revision petitioner alleging offences under Sec.279, 337, 338 and 304A IPC before the Judicial Magistrate of the First Class-I, Neyyattinkara. 2. The revision petitioner, who appeared before the trial court in response to the process, pleaded not guilty when particulars of the offence were read over and explained to him. Hence he was sent for trial. On the side of the prosecution Pws.1 to 9 were examined and Exts.P1 to P9 were marked. After closing the evidence for prosecution, the revision petitioner was questioned under Sec.313 of the Crl.P.C. He took a plea of total denial. No defence evidence was let in. The learned Magistrate on appraisal of the evidence arrived at a conclusion of guilty. Consequentially, the revision petitioner was convicted for offences under Sec.279, 337, 338 and 304A IPC and sentenced to rigorous imprisonment for six months for offence under Sec.279 IPC and rigorous imprisonment for two years for offence under Sec.304A IPC with order to run the sentences concurrently. No separate sentence was awarded for other offences. The driving licence of the revision petitioner was suspended for a period of one year. Though the revision petitioner preferred Crl.Appeal No.271/2000 before the Sessions Judge, Thiruvananthapuram, he was unsuccessful. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition was filed. 3. The learned counsel for the revision petitioner admitted the occurrence. Though the revision petitioner preferred Crl.Appeal No.271/2000 before the Sessions Judge, Thiruvananthapuram, he was unsuccessful. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition was filed. 3. The learned counsel for the revision petitioner admitted the occurrence. But, he submitted that the accident occurred because of the negligence of the driver of the car and that the revision petitioner was neither negligent nor rash. 4. The identity of the revision petitioner as the driver of the bus was not disputed by the learned counsel for the revision petitioner. On the other hand, it was proved by Ext.P3 reply given by Pw5, an Inspector attached to the KSRTC. Ext.P3 was issued in reply to Ext.P2 notice issued by the investigating officer as to who was the driver of the bus. It was informed by Pw5 that the revision petitioner was the driver of the bus at the time of accident. Neither Ext.P3 nor the evidence of Pw5 on that aspect was disputed. Thus the identity of the revision petitioner as the driver of the offending vehicle was proved beyond the shadow of doubt by the unchallenged testimony of Pw5 supported by Ext.P3. 5. In support of the prosecution allegation, Pws.1 to 4 were examined, of whom Pw4, a passenger in the car and a relative of the deceased didn't support the prosecution. Pw3, the relative who had given evidence supporting the occurrence. A reading of Ext.P1 given by Pw3 would show that he had, in fact, not seen the incident. He reached the spot in another car only after the incident. As per the statement in Ext.P1 when he reached the spot the accident had already occurred. Since he had not stated in Ext.P1 that he had witnessed the occurrence, his evidence in the box as if he had witnessed the incident is not reliable. 6. Pw1, a nephew of deceased Samuel and Pw2, the wife of deceased Daniel, who were passengers in the car had deposed about the collision of vehicles. Pw1 had deposed that the bus was at a high speed. Pw2 has no such case. Speed alone cannot be taken as a criterion to determine negligence. But, both of them had not attributed any negligence or rashness against the revision petitioner. Pw1 had deposed that the bus was at a high speed. Pw2 has no such case. Speed alone cannot be taken as a criterion to determine negligence. But, both of them had not attributed any negligence or rashness against the revision petitioner. Though Pw1, had deposed that the bus was at high speed, it was not mentioned as to what was the speed. High speed deposed by Pw1 is only a layman's observation. So, their evidence is not at all reliable to arrive at a conclusion that the bus was driven by the revision petitioner either rashly or negligently. 7. In road traffic accidents, to determine the negligence or rashness, scene mahazar describing place of occurrence is a very important piece of document. Scene mahazar is prepared mainly to bring on record the width of the road and margin, the portion of the road where the accident occurred, whether the road was straight or bent, whether there is tyre mark indicating application of brake, the distance at which the vehicle could be stopped after applying the brake, the lie of vehicle after accident etc. Often witnesses would not be in a position to give precise evidence regarding the spot of occurrence and other relevant material particulars. At the same time, the scene mahazar could give a picturesque description. In case of head on collision, scene mahazar would enable one to ascertain which vehicle was on the correct side and which was on the wrong side. Width of the road, spot of occurrence, tyre marks, lie of the vehicle etc described in the mahazar would speak volumes than witnesses. Ordinarily, the evidence of witnesses regarding the negligence of the driver wouldn't be better than a layman's opinion. Sometimes the witnesses may lie. When two vehicles are involved, the drivers may attribute negligence against each other. Here in this case, the revision petitioner attributes negligence against the driver of the car as against the prosecution attributing negligence against the revision petitioner. According to the learned counsel for the revision petitioner, the car was driven to the right side of the road and hit against the bus, which was driven along the left side of the road in the opposite direction. When confronted with such disputes, scene mahazar narrating the place of occurrence would enable one to have a better appreciation of the evidence. 8. When confronted with such disputes, scene mahazar narrating the place of occurrence would enable one to have a better appreciation of the evidence. 8. Pw6, the attestor to scene mahazar denied his signature. Hence scene mahazar couldn't be marked through him. Then it would have been marked through the Investigating Officer. It was submitted that since the Investigating Officer didn't turn up despite the process issued, the Investigating Officer was not examined and the evidence was closed without marking the scene mahazar. Learned Government Pleader expressed helplessness. I don't think that the prosecution was helpless in such a situation. The Asst. Public Prosecutor, who conducted the prosecution, should have requested the trial court to issue coercive steps to the investigating officer who didn't respond to the summons. Action against the investigating officer, who failed to appear before the court after receiving summons, was also appropriate. The Asst.Public Prosecutor should have requested the trial court for such steps for procuring the presence of the witnesses and should have been examined. At the same time, it was the duty of the Magistrate, before closing the evidence to see that all material witnesses were examined and the material documents were marked. The Magistrate should not have been a mute spectator expressing helplessness in such situation. He should have exercised the powers vested on him in collecting material evidences. Before closing the evidence the Magistrate should have repeated the process including coercive steps to procure the presence of the Investigating Officer to prove the scene mahazar. For reasons best known to the learned Magistrate, it was not done. The result is that the evidence was closed without marking the relevant document. 9. The reports of inspection issued by the Motor Vehicles Inspector were also not marked. The Motor Vehicle Inspector was not examined. The reports of the Motor Vehicles Inspector were produced by the prosecution to give evidence that the accident was not due to mechanical defect. Closing the evidence without examining the Motor Vehicles Inspector or marking inspection reportssubmitted by him would enable the accused to take a contention that the accident was due to mechanical defect. Hence, it should have been the duty of the Magistrate to mark those relevant documents also. No witness, especially official witnesses shall be allowed to remain away from the court and give a room to the accused to escape from the clutches of law. Hence, it should have been the duty of the Magistrate to mark those relevant documents also. No witness, especially official witnesses shall be allowed to remain away from the court and give a room to the accused to escape from the clutches of law. I cannot appreciate the procedure adopted by the learned Magistrate. The learned Magistrate failed to dispose the case with the seriousness that it deserved. The Magistrate should have borne in mind that the liberty of the revision petitioner is at stake. The learned Magistrate should have taken serious note that closing evidence without recording material evidence often would lead to a situation benefiting the accused. It may entitle him to undeserving acquittal. Here in this case, contrary happened. Without recording material evidence and considering the same, the revision petitioner was convicted and sentenced to suffer rigorous imprisonment upto two years. Personal liberty guaranteed under Article 21 of the Constitution of India is taken away in a casual manner. It is more precarious than undeserving acquittal. I can no way allow to sustain such a conviction and sentence. 10. In the absence of scene mahazar it is rather difficult to come to a conclusion as to whether the car was driven through the left side of the road or whether the revision petitioner was driving through the left side of the road. Being a head on collision, in the event, the revision petitioner was driving through his side and the car was driven to the wrong side and hit on the bus, I am afraid to come to a conclusion that the revision petitioner was rash or negligent in causing the accident. It may not be just and proper to infer negligence or rashness on the part of the revision petitioner for the reason that the other driver is no more. In the absence of oral evidence on the side of Pws.1 and 2 to the effect that the revision petitioner was either rash or negligent and in the absence of scene mahazar, I am unable to support the finding of the courts below. The revision petitioner is entitled to the benefit of doubt. He is entitled to the benefit of not marking the scene mahazar. He is entitled to an order of acquittal In the result, this revision petition is allowed. The revision petitioner is entitled to the benefit of doubt. He is entitled to the benefit of not marking the scene mahazar. He is entitled to an order of acquittal In the result, this revision petition is allowed. While setting aside the conviction and sentence under challenge, the revision petitioner is acquitted and set at liberty. The bail bond, if any, executed by the revision petitioner shall stand cancelled.