Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE N.ANIL KUMAR THURSDAY, THE 06TH DAY OF AUGUST 2020 / 15TH SRAVANA, 1942 AGAINST THE JUDGMENT IN CRL.APEEAL NO. 339/2004 DATED 30-05-2006 OF ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR AGAINST THE JUDGMENT IN CC 1115/2001 DATED 04-06-2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,THRISSUR REVISION PETITIONER/APPELLANT/ACCUSED:
JAYAN S/O.G.RAMAKRISHNAN, GURUSWAMI VILLA, PAMBADY VILLAGE AND DESOM,, TALAPPILLY TALUK. BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.M.REVIKRISHNAN RESPONDENT/COMPLAINANT/STATE: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SR.PUBLIC PROSECUTOR SRI.M.S. BREEZ THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: N.ANIL KUMAR, J -------------------------------------- Crl.R.P. No.3066 of 2006 -------------------------------------- Dated this the 6th day of August, 2020
ORDER
The revision petitioner is the accused in CC No.1115/2001 on the file of the Judicial First Class Magistrate II, Thrissur in which he stood accused of having committed offences punishable under Sections 279, 338 and 304(A) of the Indian Penal Code.
2. By judgment dated 04.06.2004, the learned Judicial First Class
Magistrate-II, Thrissur convicted and sentenced the accused to undergo simple imprisonment for a period of one year for the offence punishable under Section 304(A) of the Indian Penal Code and to undergo simple imprisonment for a period of three months each for the offences punishable under Sections 279 and 338 of IPC. The above sentences were ordered to run concurrently. Consequent to the conviction and sentence, the learned magistrate disqualified the accused from driving all categories of motor vehicles for a period of two years as per Section 20 of the Motor Vehicles Act. Challenging the conviction and sentence, the accused preferred Crl.Appeal No. 339/2004 before the Sessions Court, Thrissur.
The III Additional Sessions Judge (Adhoc) Fast Track Court-1, Thrissur dismissed the appeal by judgment dated 30.05.2006 confirming the conviction and sentence imposed by the trial court . Feeling aggrieved, the accused is before this Court in revision.
3. The prosecution case, in brief, is as hereunder:-
On 04.09.2001 at about 12 noon, the accused drove the KSRTC bus bearing registration No.KL 15 3048 in a rash and negligent manner so as to endanger human life through Thrissur-Ernakulam National Highway on
south north direction and when the offending vehicle reached at Mundupalam junction, the accused suddenly accelerated the vehicle to overtake another bus, which was proceedings in its front and negligently turned the vehicle to the western direction and while so, it hit against a motorcycle bearing registration No. KL8 M 323 and thereby caused the falling of the rider and the pillion rider from the bike and thereafter it dragged the bike ahead and as a result of which PW3 had sustained grievous hurt and the pillion rider, namely, Joshy had succumbed to the injuries sustained to him.
4. During the trial, PW's 1 to 16 were examined and marked Exts.P1 to P12 on the side of the prosecution. On closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) of Cr.P.C.
His defence is one of total denial. However, he stated that PW3, who was the rider of the bike overtook the bus through the left side and the motorcycle hit against a private bus and thereby the rider and the pillion rider sustained hurt.
5. For the occurrence in question, PW1 lodged Ext.P1 FIS before
PW15, who was then working as the Head Constable at Nedumbuzha Police Station on 04.09.2001. On the strength of Ext.P1, PW15 registered Ext.P1(a) FIR for the offences punishable under Sections 279, 338 and 304(A) of IPC. The investigation in this case was conducted by PW12. PW12 prepared Ext.P2 inquest report, Ext.P3 scene mahazar, recorded the statements of the witnesses and filed final report before court. PW12 sent the deadbody of the deceased for postmortem examination.
6. PW3 testified that he had sustained injuries on 04.09.2001 at
12 noon at Mundupalam junction as a result of a motor vehicle accident. He stated that while he was riding the motorcycle carrying his brother-in-law, namely, Joshy as a pillion passenger through Ernakulam-Thrissur from south to north, the KSRTC bus driven by the accused overtook a private bus, which was coming behind the motorcycle and after that the KSRTC bus suddenly turned into the road on the left side and while so, the bus hit against the motorcycle ridden by him. According to him, the bus dragged
the motorcycle for 7 meters towards the west. He also stated that PW3 and his brother-in-law Joshy sustained grievous hurt and they were taken to the hospital. PW3 was initially taken to Thrissur Health Hospital Limited for treatment. Ext.P12 wound certificate would show that PW3 sustained grievous hurt as a result of the accident. PW16, Dr.Joseph T. John, Associate Professor and Deputy Police Surgeon of Medical College, Thrissur conducted postmortem on the body of Joshy on 05.09.2001 and issued Ext.P8 postmortem certificate. Ext.P8 would reveal that the deceased died of abdominal injuries. When PW16 was examined before the court, PW16 opined that the injuries caused on the body of the deceased are likely to be caused in a road traffic accident.
7. Pw3 testified that the accused was the driver who drove the
offending vehicle at the time of the accident. PW5 stated that while he was riding his motorcycle through the Ernakulam-Thrissur road, he saw PW3 lying under the bus bearing registration No.KL 15 3048 at Mundupalam junction. The aforesaid bus was found stopped facing front towards the road running west. He stated that he reached the occurrence place immediately after the accident . He further stated that, after the accident the injured persons were taken to the hospital in a car. According to him, the driver of the KSRTC bus also accompanied him.
8. PW5 stated that on 04.09.2001 at 12 noon while he was riding
his motorcycle along Thrissur-Ernakulam road from north to south he saw a KSRTC bus coming from south to north overtaking another bus and the KSRTC bus abruptly changed its direction to the road towards west. According to him, while so, the KSRTC bus hit against a motorcycle which was going ahead of the bus. He further stated that, he had stopped his motorcycle and moved to the place of occurrence, where he could find two persons lying under the KSRTC bus. He stated that the accident took place as a result of rash and negligent driving on the part of the accused. He also identified the accused before the court.
9. PW1 turned hostile to the prosecution. He resiled from his
earlier statement as contained in Ext.P1. PW2 testified that he did not witness the occurrence. However, he saw two persons lying under the bus. According him, he took the persons, who was lying under the bus to the hospital. However, the injured succumbed to the injuries later.
10. The court below mainly relied on the oral evidence of PWs 3
and 5 and entered a finding that the offending vehicle which was coming through the Thrissur-Ernakulam road from south to north overtook a private bus and after that the offending vehicle suddenly turned into the road towards west and while so, the bus hit against the motorcycle ridden
by PW3 on 04.09.2001 at 12 noon at Mundupalam junction. The trial court as well as the appellate court believed the evidence of PWs 3 and 5 and entered a finding that the accused drove the offending vehicle in a rash and negligent manner so as to endanger human life and as a result of which PW3 and his brother-in-law Joshy sustained injuries and later, Joshy succumbed to the injuries.
11. Ext.P3 scene mahazar was prepared by PE12, the Investigating
Officer in this case. On a perusal of Ext.P3 scene mahazar, the length of the road is stated as 18 meters. It is difficult to fix the length of National Highway as 18 meters. Ext.P3 would show that the occurrence place is at Mundupalam junction. Mundupalam is a place where another road from the eastern side crosses the National Highway and further proceeds towards the west. It is also difficult to hold that the cross road is having a length of 18 meters. PW12 has located tyre marks on the road. The tyre mark is also not correctly described. The tyre mark is noted as 120 Cms west from the occurrence place. However, occurrence place is not stated correctly in Ext.P3. In this connection, it is pertinent to note that scene plan prepared by the Village Officer is not part of the evidence in this case. The Village Officer is not examined as a witness nor is the scene plan prepared by him in accordance with Ext.P3 produced as an exhibit in this
case.
12. PW9, who was the conductor of the bus at the time of
occurrence stated that, when the offending vehicle was changing its direction into the road leading to Sakthan Thamburan bus stand, a motorcycle which was ridden in a rash and negligent manner fell in to a gutter and after that the motorcycle trapped under the bus.
13. PW14, the Assistant Motor Vehicle Inspector, who prepared
Ext.P9 noted the scratch on left side of body paneling at front portion of the bus. When he was examined before court, he stated that the scratch on left side of body paneling indicates that the motorcycle hit on the left portion of the bus.
14. Admittedly, the offending vehicle was coming through the
Thrissur-Ernakulam from south to north direction. According to the prosecution, the offending vehicle overtook a private bus and after that the offending vehicle suddenly turned into the road running towards west. The driver and conductor of the private bus have not been cited as witness for the prosecution. It is the definite case of the prosecution that the accident took place while the offending vehicle was overtaking a private bus and after that the KSRTC bus suddenly turned into the road running towards west. Scratch on the left side of body paneling at front portion of the bus is
an indication that the motorcycle hit on the left side of the bus. Sudden overtaking of the bus at Mundupalam junction towards the west at 12 noon is not an ordinary human probability. In the case on hand, immediately after turning towards the west, the accident had occurred. It presupposes that the motorcycle had been coming towards north through the western side of the road. On being questioned under Section 313 Cr.P.C., the accused contended that the motorcycle rider overtook the private bus through the left side and as a result of which the accident took place at Mundupalam junction when the KSRTC bus was turning towards the west. It is difficult for this Court to believe that the motorcycle rider and the pillion rider were proceeding to north through the National Highway ahead of the private bus. Unless and until the driver of the private bus was examined to prove that the motorcycle involved in the accident was proceeding ahead of the private bus, it is not proper on the part of the court to believe the prosecution version is true to facts. On going through Ext.P3 scene mahazar and other facts and circumstances of the case would indicate that the rider and the pillion rider of the vehicle were instrumental in causing the accident as the motorcycle was proceeding towards the north through the left side overtaking the private bus. Hence, both the trial court and the appellate court went in wrong in appreciating the evidence in
accordance with law.
15. Judged by the above standards, this Court is of the view that the
prosecution has not succeeded in proving the offences under Sections 279, 338 and 304(A) of IPC as against the accused. The rash and negligent driving is not proved. Hence, the accused is certainly entitled to get the benefit of doubt. In the result, the revision petition is allowed. The conviction and
sentence imposed by the trial court as confirmed by the appellate court for the offences punishable under Sections 279, 338 and 304(A) of IPC and the disqualification of the accused from driving all categories of motor vehicles for a period of two years as per Section 20 of the Motor Vehicle Act stand set aside and the accused is acquitted for the aforesaid offences. Cancelling his bail bond, this Court directs that he be set at liberty.
Sd/- N.ANIL KUMAR, JUDGE dlk/06.08.2020