IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 Crl.Rev.Pet.No. 1678 of 2002 ----------------------------------------------- CRA.250/1997 of ADDL. SESSIONS COURT (ADHOC-I), THALASSERY CC.280/1992 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TALIPARAMBA .................... REVN. PETITIONER/APPELANT/ACCUSED: POKKANHI PRAKASHANAN, S/O. KUNHIKRISHNAN, PUTHIYAVEETTIL, PAYAM AMSOM, PERUMBAREMBA DESOM, P.O.IRITTY. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT/RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, (S.I. OF POLICE, IRIKKUR). BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.9021/2002 IN CRRP 1678/2002 DISMISSED 19.7.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1678 of 2002 -------------------------- ORDER Petitioner, the accused in C.C.No.280/1992 on the file of Judicial First Class Magistrate's Court, Taliparamba, was convicted and sentenced for the offences under Sections 279, 337 and 338 of Indian Penal Code. Though petitioner challenged the conviction and sentence before Sessions Court, Thalassery in Crl.A.No.250/1007, learned Additional Sessions Judge, on re-appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Bus KBN-2838 hit on a tree standing on the side of the road at about 8 a.m. on 3.12.1991 and caused hurt and grievous hurt to PWs 1 to 5, 11 and 15. According to prosecution, petitioner was driving the bus rashly and negligently on that day. CRRP 1678/02 2 Petitioner contended that he was not the driver of the bus and he has nothing to do with the incident. Learned Magistrate relied on the evidence of PW16, a police constable, who was one of the passengers of the bus, to fix the identity. Learned counsel argued that when all the other injured witnesses, who were passengers of the bus, did not identify petitioner as the driver of the bus, the solitary unreliable evidence of PW16 should not have been relied on and therefore, the conviction is not sustainable. 4. PWs 2 to 5, 11 and 15 sustained grievous hurt. PWs 6 to 10, 12 to 14, 16 and 17 sustained simple hurt. PWs 18 to 23 and 26 are the doctors and PW24 is the AMVI and PW25 is an attestor to the scene mahazar and Exhibit P27 is a Head Constable who registered the case on the basis of Exhibit P1 F.I. Statement and PW28 is the Head Constable who conducted preliminary investigation and PW29 is the Sub Inspector of Police, who completed the CRRP 1678/02 3 investigation. Except PW16, none identified petitioner as the driver of the bus. PW16 deposed that he was a passenger of the bus and he got into the bus along the rear side door and he was sitting in the middle and he had seen the petitioner driving the bus. Argument of the learned counsel is that PW16 has no case that he had any previous acquaintance with the petitioner or he had seen the petitioner driving the bus on any other day and he did not notice any identification marks to identify the petitioner later and no test identification parade was conducted and hence, identification from the box should not have been accepted. 5. The bus involved in the incident is a stage carriage bus. PW29, the Sub Inspector of Police, who investigated the case or PW28, the Head Constable, who conducted preliminary investigation, did not question the owner of the bus, to find out who was entrusted with the duty of driving the bus on 3.12.1991. The Investigating Officer did not CRRP 1678/02 4 make any attempt to seize the trip sheet which should have shown who was the driver of the bus. The conductor or the cleaner of the bus, who could have disclosed who was driving the bus at the relevant time, was not even cited as a witness. In such circumstances, the question is whether evidence of PW16 alone is sufficient to uphold the identity of the petitioner as the driver, as found by the courts below. 6. If PW16 had a case that he used to travel in that bus and therefore, he had acquaintance with the driver and he had seen petitioner driving the bus while he got into the bus or was seated in the bus, his identification from the box could have been accepted. PW16 has no such case. He had not stated any special reason for him to note or recollect the driver of the bus at that time. Prosecution has also no case that PW16 identified the petitioner at any point of time as the driver of the bus earlier. As rightly pointed out by the CRRP 1678/02 5 learned counsel, from the nature of the damages noted by PW24 in Exhibit P18 report and the nature of the injuries sustained by the passengers when the bus hit on the tree, in the ordinary course, the driver of the bus should also sustain some injury. There is no investigation to find out whether petitioner had sustained any injury or not. In such circumstances, it is unsafe to rely on the evidence of PW16 to hold that it was the petitioner who was driving the bus at the relevant time. From the fact that investigating officer had not taken any pains to serve notice on the owner of the bus to ascertain who was the driver, the failure to get the driver identified by the conductor or the cleaner of the bus in the absence of a case that petitioner sustained any injury in the incident, strengthens the case of the defence that attempt was to save the actual driver who was responsible for the incident by alleging that petitioner was the driver of the bus. In such circumstances, CRRP 1678/02 6 petitioner is entitled to get at least the benefit of reasonable doubt. Therefore, the conviction of the petitioner cannot be sustained. Revision is allowed. Conviction of the petitioner in C.C.No.280/1992 by Judicial First Class Magistrate, Taliparamba, as confirmed by Additional Sessions Judge, Thalassery in Crl.A.No. 250/1997, is set aside. Petitioner is found not guilty of the offences. He is acquitted. The bail bond executed by him stands cancelled. 19th July, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 1678/02 7 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1678 of 2002 -------------------------- ORDER 19th July, 2010