IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 Crl.Rev.Pet.No. 1601 of 2002(B) --------------------------------------- CC.566/1997 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VADAKKANCHERY CRA.169/2000 of III ADDL. SESSIONS COURT (ADHOC), THRISSUR .................... REVN. PETITIONER/APPELLANT/ACCUSED : ----------------------------------------------------- SUBRAMANIYAN, S/O. UNNI, VARIATHUPARMBIL HOUSE, KANNIPAYYOOR VILLAGE, THRISSUR DISTRICT. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT/RESPONDENT/COMPLAINANT : ------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE SUB INSPECTOR OF POLICE, KUNNAMKULAM. PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------ CRL. R. P.No.1601 of 2002 -------------------------------- Dated this the 14th day of October, 2008 O R D E R Revision petitioner stands convicted for offences punishable under Sections 279 and 304 A of the Penal Code and sentenced to undergo imprisonment for various periods. Case is that on 9/03/1996 at about 11 A.M. revision petitioner drove lorry along the public road from north to south in a rash and negligent manner so as to endanger human life, that vehicle collided with a car driven by PW5 which came from the opposite side causing hurt to PW5 and fatal injuries to his wife. Courts below found that Revision petitioner was driving the offending lorry at the relevant time in a rash and negligent manner so as to endanger human life and entered conviction. 2. Heard. 3. Perused the records. 4. Counsel for Revision petitioner contents that there is no sufficient evidence to show that Revision petitioner was driving the CRL. R. P.No.1601/ 2002 2 offending vehicle at the relevant time and that at any rate, there is no sufficient evidence to show that the accident was due to the rashness or negligence of revision petitioner. Learned magistrate has illegally relied on documents produced by prosecution though the same were not proved. He pleaded for acquittal of revision petitioner. 5. CWs 2 and 3 cited by the prosecution to prove that alleged accident were not examined. It is seen from the order sheet that on 30/11/1998 CW3 was present but trial was adjourned on the request of counsel for revision petitioner. Thereafter CW3 was not available and no coercive steps are seen taken against CWs 2 and 3. PW5 gave evidence regarding the accident and supported the prosecution. He identified revision petitioner as the driver of the offending lorry. PW2 claimed that lorry belonged to his brother and that revision petitioner was the permanent driver of that vehicle. PW2 got release of that vehicle from the court on executing kychit. He is an attestator in Exhibit P2, mahazar for seizure of the G.V.R. In cross examination he stated he does not know who all are the drivers of that lorry and that he has not seen revision petitioner driving that vehicle. In re- CRL. R. P.No.1601/ 2002 3 examination he stated that there are two drivers for that lorry, including the revision petitioner. PW7 was examined to prove that PW5 sustained injuries. Exhibit P3 is the wound certificate. But the post mortem certificate and inquest report concerning the deceased were not proved. PW7, the Joint R.T.O proved Exhibits P5 and P6 reports regarding the lorry and car involved in the accident. CWs 13 and 14 who conducted investigation were not examined. Mahazar for scene of occurrence(Exhibit P1) was proved though PW1, attestator. The officer who prepared Exhibit P1 was also not examined. 6. Question whether CWs 2 and 3 who are witnesses to the accident should have been examined is certainly a matter within the discretion of the law officer who conducted the prosecution. Non examination of CWs 2 and 3cannot be said to be fatal if the prosecution is satisfied with the evidence of PW5 and other materials. 7. So far as identity of the driver of the lorry is concerned, I find that the GVR said to be produced by the revision petitioner and seized as per Exhibit P2 dated 11/03/1996 was also not proved. Learned Magistrate placed reliance on that GVR to support the version CRL. R. P.No.1601/ 2002 4 of PW5 that revision petitioner was driving the offending lorry. 8. Regarding the death of wife of PW5, post mortem certificate issued by CW8 and the inquest report prepared by the investigating officer were produced in court but those documents were not marked in evidence. It is true that cause of death can be proved even otherwise than by proving a post mortem certificate. But in a case of this nature where post mortem report and inquest report had been produced, it could have been proved and at any rate, learned magistrate was not correct in placing reliance on the documents produced by the prosecution, but not proved in evidence. 9. In a case of this nature, mahazar for place of occurrence has much importance. That document should have been proved through the officer who prepared it and if he is not available for any reason, through another person who could identify his signature. It is not sufficient that without examining the officer who prepared the mahazar, the same is proved through an attestor. Non examination of the officer who prepared the mahazar prejudiced the revision petitioner in the sense that he could not question that officer with regard to the CRL. R. P.No.1601/ 2002 5 statements in the mahazar which were adverse to him. The investigating officers also were not examined. Trial court has not taken coercive steps against CWs 8, 13 and 14. In the circumstance of this case, it was necessary to examine at least CWs 8,13,14 for the reasons I have stated above. Non-examination certainly prejudiced the revision petitioner. But the non examination cannot straight away result in acquittal of the revision petitioner. Giving opportunity to examine witnesses cited for the prosecution when they are not examined, cannot amount to filling up the lacuna as 'lacuna' means the inherent wedge in the prosecution case. In the facts and circumstances stated above, I consider that remand of case is necessary in the ends of justice. Revision petition is therefore allowed in the following lines. 1. Conviction and sentence imposed on the revision petitioner are set aside. 2. Case is remitted to the court of Judicial Magistrate of First class, Vadakkanchery for fresh disposal in the light of observations made above. 3. Revision petitioner shall appear in the trial court on 1/12/208. CRL. R. P.No.1601/ 2002 6 Bail bond is cancelled. Criminal Miscellaneous Petition No.8747 of 2002 shall stand dismissed. THOMAS P. JOSEPH, JUDGE scm