IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 Crl.Rev.Pet.No. 1489 of 2002 ----------------------------------------------- CRA.338/2000 of ADDL. SESSIONS COURT, N.PARAVUR CC.521/1995 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... REVN. PETITIONER/APPELLANT/ACCUSED: BASHEER, S/O. MOIDEEN, KANJIRAPARAMBIL HOUSE, PARAVOOTHARA, N. PARAVUR VILLAGE, PARAVOOR TALUK. BY ADV. SRI.K.A.JALEEL RESPONDENT/RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY (C.I. OF POLICE ALUVA IN CRIME NO.493/94) PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1489 of 2002 -------------------------- ORDER Petitioner, the accused in C.C.No.521/1995 on the file of Judicial First Class Magistrate's Court-I, Aluva, was convicted and sentenced for the offences under Sections 279 and 304(A) of Indian Penal Code. Petitioner challenged the conviction and sentence before Additional Sessions Court, North Paravur in Crl.A.No.338/2000. 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. Prosecution case is that on 25.9.1994 at about 8 a.m., while petitioner was driving Trucker KLM-8544 in a rash and negligent manner so as to endanger human life along Aluva-Paravur Public Road, it hit on Sivan, who was riding a bicycle from west to east along the same road, near YMCA CRRP 1489/02 2 building at Aluva. Sivan sustained serious injuries and was taken to Medical Trust Hospital, from where, PW4, the doctor, examined him and prepared Exhibit P2 wound certificate. The injured died from the hospital. PW11, the doctor, conducted the autopsy and prepared Exhibit P8 postmortem certificate. Getting information from the hospital, PW10, the Head Constable, reached Medical Trust Hospital and finding the injured unconscious and there was no other eye witness to unveil the details of the accident, returned back to the police station and registered the case under Exhibit P5 FIR. PW10 investigated the case. PW14, the Circle Inspector of Police, took over the investigation. He furnished a report incorporating the name of the petitioner as the accused and also the offence under Sections 279 and 338 of Indian Penal Code. After the death of the injured, Exhibit P9 report was submitted incorporating Section 304 (A) of Indian Penal Code also. After completing the investigation PW14 laid the charge. Learned CRRP 1489/02 3 Magistrate took cognizance of the offences. Petitioner pleaded not guilty. 3. Prosecution examined fourteen witnesses and marked nine exhibits. Petitioner did not adduce any evidence. 4. Learned Magistrate, on the evidence, found that deceased Sivan died consequent to the injuries sustained when the bicycle, which he was riding, was hit by a Trucker from behind and the incident occurred only due to the rash and negligent driving of the Trucker. Based on the evidence of PWs 1 and 2, petitioner was found to be the driver. Learned Additional Sessions Judge also accepted the evidence of PWs 1 and 2 and held that identity of the petitioner as the driver of the Trucker was established. Argument of the learned counsel is that evidence do not establish the identity of the petitioner as the driver of the Trucker and therefore, the conviction is not sustainable. 5. In Exhibit P5 FIR, the accused is shown as “a person who could be identified by sight”. The CRRP 1489/02 4 intimation received from the hospital only shows that deceased Sivan was admitted in the hospital and the alleged cause of injury was hit by a Trucker while the injured was riding a bicycle. As per the evidence of PW10 and Exhibit P5 FIR, when PW10 reached the hospital, there was nobody who had seen the incident and therefore, the case was registered under Exhibit P5 FIR stating that accused is known by sight. It is not known how PW10 could, at that point of time, record that driver is known by sight. Whatever it be, evidence of PWs 10 and 14 do not disclose how the name of the petitioner was incorporated. The Circle Inspector incorporated the name of the petitioner, based on a statement of PW7, which was recorded under Section 161 of Code of Criminal Procedure. But, PW7, when examined before the court, turned hostile and deposed that he did not furnish any statement to the police. Though the trial court and the appellate court held that PW2 identified the petitioner as the driver of the Trucker on that CRRP 1489/02 5 day, evidence of PW2, even in chief examination, was that he could not identify the driver on that day, as he had seen him only in darkness. When PW2 was asked whether he could identify the petitioner, he said, he cannot identify. Therefore, the finding of the courts below that PW2 identified the petitioner is against his evidence. 6. What remains is only the evidence of PW1. True, PW1 identified petitioner as the driver of the Trucker from the box. But, PW1 deposed that he did not see the driver after the fateful day and the accused was not shown to him, even, during the investigation. When PW1 was asked whether the accused was having beard when he saw him at the time of the incident, PW1 said, he cannot say. No data was furnished by PW1 to identify the petitioner as the driver. Evidence of PW1 shows that he had no previous acquaintance with the petitioner and had not even seen the petitioner earlier to the date of the incident or thereafter, till he saw the petitioner from the box. In such CRRP 1489/02 6 circumstances, his identification from the box and that too, based on no data, should not have been accepted by the courts below. There is no other evidence to show that petitioner was driving the Trucker on that fateful day. If that be so, conviction of the petitioner for the offences under Sections 279 and 304(A) of Indian Penal Code is illegal, on the failure of the prosecution to prove that petitioner was driving the Trucker on that day. Hence, the conviction can only be set aside. Revision is allowed. Conviction of the petitioner for the offences under Sections 279 and 304(A) of Indian Penal Code in C.C.No.521/1995 by Judicial First Class Magistrate-I, Aluva, as confirmed by Additional Sessions Judge, North Paravur in Crl.A.No.338/2000, is set aside. Petitioner is found not guilty of the offences. He is acquitted. 11th August, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 1489/02 7 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1489 of 2002 -------------------------- ORDER 11th August, 2010