IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 24TH FEBRUARY 2009 / 5TH PHALGUNA 1930 Crl.Rev.Pet.No. 519 of 2001(A) -------------------------------------- CRA.370/1999 of ADDL.SESSIONS COURT-II, KOZHIKODE CC.814/1997 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PERAMBRA .................... REVN. PETITIONER/APPELLANT/ACCUSED : ---------------------------------------------------- K.J. JOSEPH, S/O.JOHN, KUNAMPALLIL HOUSE, MUTHUKAD, PERUVANNAMOOZHI BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENT/RESPONDENT/COMPLAINANT : ------------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SRI.T.K.VIPINDAS THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 519 of 2001(A) ORDER ON CRL.M.P.NO.2494 OF 2001 IN CRL.R.P.NO.519 OF 2001 DISMISSED 24.02.2009 SD/- P.S.GOPINATHAN, JUDGE -TRUE COPY- P.A. TO JUDGE P.S.GOPINATHAN, J. -------------------------------- Crl.R.P. No.519 OF 2001 -------------------------------- Dated this the 24th day of February, 2009 O R D E R Revision petitioner is the accused in C.C.No.814/1997 on the file of the Judicial Magistrate of First Class-II, Perambra. PW8, the Sub Inspector of Police filed a charge sheet against the revision petitioner before the learned Magistrate alleging offences under Sections 279 and 337 I.P.C. with an allegation that at 9.45 a.m. on 25.09.1995 the revision petitioner drove a stage carriage bus bearing registration No.KL/11A 6969 from north to south along Kuttiadi-Perambra public road in a negligent manner at over speed and at Kattumannil, it hit against a motor cycle bearing registration No.KRN 5848 ridden by PW1 with PW2 on the pillion and as a result, PWs 1 and 2 sustained simple injuries and both vehicles sustained damage. 2. The law was put in motion by Ext.P1, F.I.Statement given by PW2. On the basis of Ext.P1, a case was registered as crime No.249/95 by PW8. The investigation was taken over by PW7. After investigation, PW8 filed the charge sheet. Crl.R.P.No.519 of 2001 2 3. When the revision petitioner appeared before the trial court, the copies of the charge sheet and connected records were furnished and the particulars of offence were read over and explained, to which he pleaded not guilty. Thereafter, he was sent for trial. On the side of the prosecution, PWs 1 to 8 were examined and Exts.P1 to P8 were marked. After closing the evidence, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure. He denied the incriminating evidence. No defence evidence was adduced. 4. The learned Magistrate on appraisal of the evidence, arrived a conclusion of guilty. Consequently, the revision petitioner was convicted for offences under Sections 279 and 337 I.P.C. and sentenced to simple imprisonment for 3 months each with a direction to suffer the sentence concurrently. Aggrieved by the conviction and sentence, the revision petitioner preferred Crl.Appeal No.370/1999. The learned Sessions Judge concurred with the finding of the learned Magistrate, but sentence was reduced to simple imprisonment for one month. Crl.R.P.No.519 of 2001 3 5. Challenging the legality, correctness and propriety of the above conviction and sentence, this revision petition was preferred. 6. The point that arises for consideration is:- Whether the impugned judgment is vitiated by any error, illegality or impropriety. 7. The point :- The allegation that the revision petitioner was the driver of the bus at the time of accident is not now challenged. It is proved by Ext.P8, trip sheet and the testimony of PWs 2 and 3 that the revision petitioner was the driver of the bus. That part of finding is absolutely in tune with the evidence on record. 8. PWs 1 and 2 had deposed that they sustained injuries. PW5, the Doctor, who treated PWs 1 and 2 had deposed that PWs 1 and 2 had sustained simple injuries. Exts.P3 and P4, the wound certificates would corroborate the testimony of PW5. 9. PW6, the Asst. Motor Vehicle Inspector had proved his reports, Exts.P5 and P6. Exts.P5 and P6 would show that the bus has sustained no damage. Whereas the motor cycle Crl.R.P.No.519 of 2001 4 sustained damages and that the vehicles had no mechanical defect. So the evidence of PW6 would show that the mechanical defect is not the cause of the accident. Whereas due to the accident, motor cycle sustained damages. 10. The question then comes is whether the accident occurred either due to the over speed or due to the negligent driving of the revision petitioner. PWs1 and 2 had deposed that the bus was driven at over speed, PW3 also had corroborated. But, in cross examination, they could not state as to what was the speed in which the vehicle was driven. Ext.P2 is the scene mahazar. It would show that at the time when PW7 inspected the spot, the bus was stopped at the margin of the road on the eastern side. Whereas, the motor cycle was lying along the western side of the road. Both vehicles were at the proper side. Neither Ext.P2 nor any oral evidence brought on record did show as to what exactly the spot of occurrence or whether the bus was driven ahead after hitting. There is no mention about any tyre mark. So necessarily it has to be inferred that bus was stopped at the spot itself. Ext.P2 also shows that the accident occurred at a Crl.R.P.No.519 of 2001 5 curve. However, the absence of tyre mark and absence of evidence to arrive a conclusion that the bus was driven to the wrong side of the road, it could not be concluded that the bus was driven either at over speed or driven along the wrong side. 11. PWs 1 and 2 had attributed no negligence whereas they specified the over speed of the bus as the cause of accident. On the other hand, PW3 had deposed that the bus was driven negligently. No doubt, the opinion of PW3 is a layman's opinion. In a prosecution, the negligence alleged against the driver has to be examined with reference to the manner in which the accident occurred, the lie of the vehicle and the part of the road at which the vehicles hit. Here in this case, going through Ext.P2 scene mahazar, it is difficult to arrive a conclusion as to which part of the road the accident occurred. There is nothing to show that the bus was driven to the wrong side or at high speed. What was the permitted speed is also not known. However, the absence of the tyre mark and the fact that the bus was stopped at the spot are indications that the vehicle was driven at a controllable speed. Crl.R.P.No.519 of 2001 6 No negligence could be attributed against the driver so long as there is nothing to indicate that the bus was driven to wrong side. A reading of the judgment of the learned Magistrate would show that in fact, he had arrived a conclusion that the revision petitioner drove the bus in a rash and negligent manner. The prosecution itself has no case that the bus was driven rashly. Neither any of the witnesses had also stated so. Paragraph 13 of the appellate judgment would show that the learned Sessions Judge had arrived a finding that the revision petitioner was driving rashly at over speed. In fact, the finding of the learned Sessions Judge that the bus was driven rashly is not supported by any evidence or even allegation. The prosecution allegation is only negligence. But there is no finding by the appellate court that the revision petitioner has driven negligently. There is no material to conclude that the revision petitioner was either rash or negligent. Such being the materials on record, I find that the conclusion of guilty arrived by the trial court as well as by the appellate court is without supporting evidence and hence, not sustainable. Revision petitioner is entitled to an order of acquittal. Point Crl.R.P.No.519 of 2001 7 found accordingly. In the result, the revision petition is allowed. The conviction and sentence under challenge are set aside. The bail bond if any, executed by him shall stand cancelled and he would be set at liberty. P.S.GOPINATHAN, JUDGE pac