IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 Crl.Rev.Pet.No. 1605 of 2002(B) ------------------------------ CRA.219/1997 of ADDL.SESSIONS COURT, THALASSERY CC.847/1992 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... REVN. PETITIONER : ACCUSED/APPELLANT: --------------------------------------- HEMAJAN, S/O. KUNHIRAMAN, AGED 33 YEARS, RESIDING AT AROLI, PAPPINISSERY, KANNUR. BY ADV. SRI.M.RAMESH CHANDER SRI.V.TEKCHAND RESPONDENTS : RESPONDENT/COMPLAINANT: -------------------------------------- 1. SUB INSPECTOR OF POLICE, VALAPATTANAM POLICE STATION. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.1605 of 2002 ---------------------------------------- Dated this the 5th day of August 2009 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence imposed on the petitioner/accused under Sections 279,337,338 and 304A I.P.C. A sentence of S.I for a period of three months, six months and two years were imposed for the offences punishable under Sections 279,338 and 304A I.P.C. Though there was finding of guilty and conviction under Section 337 I.P.C, no separate sentence was imposed. 2. The crux of the allegations against the petitioner is that at about 2.25 p.m on 13/7/1990, he drove a bus, a stage carriage No.KRN 1078, from South towards North along the Cannanore - Thaliparamba highway in a rash and negligent manner and as a result of such rashness and negligence, his vehicle hit against another bus, stage carriage No.KLX 3517 belonging to the K.S.R.T.C, which was coming in the opposite direction from north to south. Several people suffered injuries, simple and grievous. Three injured persons succumbed to the injuries including the driver of a bus KLX-3517. Crl.R.P.No.1605/02 2 3. The crime was registered on the basis of Ext.P1 complaint lodged by PW3, the conductor of the K.S.R.T.C bus. Investigation was conducted and after completion of investigation, PW37 filed charge sheet against the petitioner/accused. The accused appeared before the learned Magistrate. He denied the offences alleged against him. Thereupon, the prosecution examined Pws 1 to 39 and proved Exts.P1 to P17. In the course of cross-examination of prosecution witnesses and when examined under Section 313 Cr.P.C, the accused denied all the circumstances relied on by the prosecution and which were put to him. He examined himself as a defence witness as DW1. In the witness box, he asserted on oath that the accident did not take place on account of any rashness or negligence on his part; but the accident occurred only because the deceased driver of the K.S.R.T.C bus had made an imprudent, negligent and rash attempt to suddenly overtake an autorickshaw which was proceeding in front and in that attempt, the K.S.R.T.C bus driver had taken his vehicle rashly and negligently to the wrong side of the road, that is the right hand side of the K.S.R.T.C bus. Despite of all efforts taken by the revision petitioner/accused, he could not avoid the head of Crl.R.P.No.1605/02 3 collision and accordingly right front side of the K.S.R.T.C bus had hit against the right front side of his bus. According to the petitioner, he was not driving his vehicle in any rash and negligent manner or at an excessive speed. The boot was on the other leg and the accident occurred in spite of all the efforts made by the petitioner to save the accident, contended the petitioner/accused. 4. The courts below concurrently came to the conclusion that the accident had occurred on account of the excessive speed with which the petitioner's vehicle was being driven at the time of the accident. This was culpable and contumacious, held both courts. 5. I have heard the arguments of the learned counsel for the petitioner and the learned Public Prosecutor. The learned counsel for the petitioner assails the impugned order on the following grounds: i) The courts below erred concurrently in coming to the conclusion that there was any rashness or negligence on the part of the accused. ii) At any rate, the courts below ought to have held that the allegations, even if accepted in toto, only indicate that the Crl.R.P.No.1605/02 4 petitioner's vehicle was proceeding along the road at a high speed. This could not, in the circumstances of the case, have been validly reckoned as evidence of rashness and negligence. iii) The sentence imposed is, at any rate, excessive. 6. Ground Nos. (i) and (ii) : As many as 39 witnesses were examined and Exts.P1 to P17 were marked. These include witnesses who were travelling in both buses as also persons outside. I do not think it necessary to advert to the specific evidence on various witnesses. Some of them supported the prosecution in full. Some of them supported the prosecution in part. Some of them turned hostile to the prosecution completely. Even if the entire evidence of the prosecution witnesses including the hostile witnesses were taken into account, the only relevant circumstance appearing in evidence is that the petitioner's vehicle was being driven at a fast pace. Witnesses have used different adjectives to describe the speed of the vehicle. Except speed, there is no specific circumstance introduced in evidence by the prosecution against the petitioner. 7. It will only be apposite straight away to refer to the scene of the crime. Witnesses may lie, but circumstances are crucial. In the appreciation of evidence in any prosecution for a Crl.R.P.No.1605/02 5 traffic offence, the scene of the occurrence must be closely and carefully studied. We get a clear description of the scene of the crime from Ext.P9 scene mahazer. A sketch of the scene of the occurrence is available in Ext.P10 site plan; but it is very evident that Ext.P10 cannot afford this court any valid or relevant input. But the details available in Ext.P9 can help the court to plot the scene of the crime with fair an amount of exactitude and accuracy. 8. The road at the scene of the crime is a sector of the national highway. There was a river bridge on the north. At the scene of the crime, for a distance of about 1 Km, the road is broad and straight. The width of the road, as per the scene mahazer, is 7.10 meters (tarred portion) with road margins on the east (2.40 Mtrs.) and west (2.30 Mtrs.). For 300 Mtrs. north of the spot of impact, the road is straight with clear vision. There is no gradient and the road runs on a level surface. 700 Mtrs. south of the spot of occurrence also the road is straight, broad and at level surface. The petitioner's vehicle was being driven from south towards north. The K.S.R.T.C bus involved in the accident driven by one of the deceased was coming from north towards south. Admittedly, in front of the K.S.R.T.C bus, a Crl.R.P.No.1605/02 6 Goods Autorickshaw was proceeding. 9. There can be no semblance of doubt that on this broad road, if the two vehicles had kept to their respective correct sides and proceeded, whatever be the speed, there could not have been any accident. Both the vehicles were available at the scene of the crime. The two buses were jammed after the impact. The autorickshaw was also available on the left hand side of the K.S.R.T.C bus. The front right side of both buses were badly damaged. The damage found on the two buses clearly shows that the momentum of impact was great. The autorickshaw was available on the eastern road margin. It was available at a distance of 75 cms. to the east of the front left tyre of the K.S.R.T.C bus. We have tell tale indications from the damage noted on the K.S.R.T.C bus and the autorickshaw that the left hand side of the K.S.R.T.C bus had hit against the right hand side of the goods autorickshaw and the goods autorickshaw had been deflected further to its left hand side. The bus driven by the petitioner has a length of 8.75 Mtrs. and the width of 2.40 Mtrs.. The K.S.R.T.C bus had a width of 2.35 Mtrs. and a length of 9.35 Mtrs.. After the impact, the spot is located at a distance of 2.60 Mtrs. to the west of the eastern kerb of the Crl.R.P.No.1605/02 7 tarred road. The petitioner's vehicle was found on the road facing north east. Its rear right tyre was found on the western kerb of the tarred road. Its rear left tyre was found at a distance of 55 cms west of the western kerb of the tarred road. Its front right tyre was found at a distance of 2.85 Mtrs. west of the eastern kerb and the front left tyre was found at a distance of 3.15 Mtrs east of the western kerb of the tarred road. The K.S.R.T.C bus, on the contrary, was found facing south east with its front left tyre touching the eastern kerb of the tarred road. Its rear left wheel was at a distance of 1.65 Mtrs west of the eastern kerb whereas its right rear tyre was found at a distance of 3.30 Mtrs east of the western kerb. The learned counsel has helped me to plot the scene of occurrence clearly on the basis of the inputs available in Ext.P9 scene mahazer though, as stated earlier, Ext.P10 site plan does not afford any satisfactory clue. 10. It will not be inapposite straight away to refer to the basic rule of the road in India that all vehicles must keep to their left. Rules 2 of the Rules of the Road Regulations, 1989 incorporate this basic rule of the road in the following words. Crl.R.P.No.1605/02 8 2. Keep Left-- The driver of a motor vehicle shall drive the vehicle at close to the left side of the road as may be expedient and shall allow all traffic which is proceeding in the opposite direction to pass on his right hand side. 11. Both the vehicles - one driven by the petitioner as also the K.S.R.T.C bus driven by the deceased were hence bound to observe this basic rule of the road. 12. These rules also specify the manner in which overtaking has to take place. The rule is framed in the following words. 6. Overtaking prohibited in certain cases-- The driver of a motor vehicle shall not pass a vehicle travelling in the same directions as himself: (a) If his passing is likely to cause inconvenience or danger to other traffic proceeding in any direction; (b) If he is near a point, a bend or corner or a hill or other obstruction of any kind that renders the road ahead not clearly visible; (c) If he knows that the driver who is following him has begun to overtake him; (d) If the driver ahead of him has not signalled that he may be overtaken. 13. I have adverted to these Rules only to appreciate the argument of the learned counsel for the petitioner that even if the entire allegations were accepted in toto, the boot must be held to be on the other foot and the petitioner cannot be held to Crl.R.P.No.1605/02 9 be guilty of any indiscretion, negligence or rashness. At any rate, it would be unkind and harsh to allege that the petitioner was responsible for the accident, contends the learned counsel for the petitioner. 14. A vehicle overtaking another vehicle may certainly have to trespass into its wrong side of the road. The road in the instant case has a width of 7.10 Mtrs. The imaginary midline (nothing is there to show that the midline was marked at the scene) runs at a distance 3.55 Mtrs. from either kerb. This clearly shows that both the vehicles could have stuck to their respective side and proceeded onward without causing any obstruction or hindrance to the other. 15. At such a place, if one of the drivers wanted to overtake another vehicle proceeding in front, he certainly has the duty to be careful and cautious. He has to ensure that he overtakes only when it is safe to overtake. He must ensure that his conduct of straying over to the right hand side in an attempt to overtake another vehicle proceeding in the front does not, in any way, obstruct or hinder traffic flowing in the opposite direction. The negligence is the breach of a duty to take care and rashness is the gross disregard of the unwholesome Crl.R.P.No.1605/02 10 consequences which the person is aware are likely to result. A driver, taking his vehicle to the wrong side of the road in such a manner as is likely to obstruct the flow of traffic in the opposite direction, must certainly show proper care and caution to ensue that he does it safely and does not obstruct the traffic proceeding in the opposite direction in the legitimate space available for them. 16. There is no dispute in this case and it is admitted that the goods autorickshaw was proceeding in front of the K.S.R.T.C bus. There is no dispute that the K.S.R.T.C. bus was attempting to overtake the said autorickshaw. There is no dispute that, at that relevant time, the bus driven by the petitioner was coming in the opposite direction. The driver of the K.S.R.T.C bus must have zealously ensure that he attempted to overtake only when the road was clear and there was sufficient clearance for him to go to his right hand side of the road in an attempt to overtake the autorickshaw. 17. We have indications available about the height of the bus as also the autorickshaw. The autorickshaw was proceeding in front and the driver of the K.S.R.T.C. bus must certainly have been in a position to see the autorickshaw proceeding in front as Crl.R.P.No.1605/02 11 also the vehicle driven by the petitioner coming in the opposite direction. There is no possibility that the driver of the K.S.R.T.C. bus would not have seen and observed the vehicle of the petitioner coming in the opposite direction. 18. Precedents galore to suggest that the mere fact that the person was driving his vehicle at a good pace is not, ipso facto, evidence of contumacious and culpable negligence. Of course, he should not break the speed limits prescribed on the road and must anticipate eventualities. At any ate, we have no satisfactory indications available to suggest that the petitioner was driving his vehicle at such a pace as to conclude that any speed limit was broken or such driving by itself amounted to imprudent, negligent or rash act. A perusal of the scene of the crime must suggests eloquently that the road was straight, clear, and level with clear visibility for a total length of about 1 Km. At such a place, speed on the subjective opinion and evidence of the witnesses cannot, by itself, be held to amount to culpable rashness or negligence. 19. The learned Public Prosecutor contends that the overtaking was already over. It is very difficult to accept this contention. The F.I.S Ext.P1 clearly shows that the autorickshaw Crl.R.P.No.1605/02 12 was proceeding on the left hand side of the K.S.R.T.C. bus when the impact took place. This must clearly indicate that the K.S.R.T.C was in the process of overtaking and had not completed the overtaking. We have more convincing indications to this effect from the scene mahazer. It is seen that damage was found on account of the impact between the left hand side of the K.S.R.T.C bus and the right hand side of the goods autorickshaw. This clearly suggests that the K.S.R.T.C. bus had attempted to swerve suddenly to the left and in that process, the right hand side of the autorickshaw had come into contact with the left hand side of the K.S.R.T.C. bus throwing the autorickshaw to the left hand side as a result of the impact. 20. If we go by the rear left and right tyre of the bus driven by the petitioner, the bus driven by the petitioner can, by no stretch of imagination, be said to be on the wrong side of the road. As already indicated, the rear right tyre was on the western road margin whereas the rear left was situated at a distance of 55 cms west of the western kerb. Of course, it is seen that the front right hand side of the bus had crossed the imaginary midline and the front right tyre was at a distance of 2.85 Mtrs. west of the eastern kerb. This suggests that the front Crl.R.P.No.1605/02 13 right hand side of the bus, after the impact, was at a distance of 70 cms to the right (east) of the imaginary midline. To that extent, the vehicle had deflected to the right. If similar standards were applied to the K.S.R.T.C bus, it can be seen that its rear left hand tyre was at 1.6 Mtrs. west of the eastern kerb and the rear right wheel of the bus was at a distance of 3.30 Mtrs. east of the western kerb. 21. It must be seen that both vehicles were seen in the jammed position at the scene of the crime. There is force in the contention of the learned counsel for the petitioner that the K.S.R.T.C bus, which was taken negligently to the right hand side (western side of the rod), must have attempted to quickly go back to its side on seeing the petitioner's bus coming in the opposite direction. In that situation, it would be idle to assume that the buses were found at the point of impact after the accident. I find merit in the contention of the learned counsel for the appellant that some deflection to the eastern side can safely be assumed as a result of the impact going by the position of the vehicle and the undisputed evidence that is available. In these circumstances, the mere fact that the point of impact is located 2.60 Mtrs. west of the eastern kerb or the fact that the right Crl.R.P.No.1605/02 14 front tyre of the petitioner's bus was found at a distance of 2.85 Mtrs. west of the eastern kerb are not at all sufficient to conclude that the petitioner was driving his vehicle along the wrong side of the road. The prosecution or its witnesses do not have such a specific case or allegation. The conclusion appears to be inevitable that the short deflection to the right hand (eastern) side must have taken place only on account of the momentum of the impact. It would be absolutely irrational and puerile to come to the conclusion that the petitioner's bus was driven along the right side of the imaginary midline. More importantly, it must be noted that no one has a case that the bus of the petitioner was coming along the right (wrong) side of the road. No witness had raised such a complaint at all. 22. The learned counsel for the petitioner submits that the unfortunate consequence of the accident had made the courts below blind to the acceptability of the stand taken by the petitioner as also the bold assertions made by him on oath as a defence witness in the witness stand. 23. The learned Public Prosecutor submits that the road was broad enough for both buses as also the autorickshaw to proceed safely and simultaneously along the road. This Crl.R.P.No.1605/02 15 contention is built by taking note of the width of the three vehicles and the width of the road. Vehicles were not in a stationary position at the time of impact and it would be, according to me, idle to assume that vehicles going fast along the road could have simultaneously proceeded along the road going by the width of the three vehicles and the total width of the road. 24. The nature of the damage found on the vehicle as also the totality of the inputs suggest that the petitioner's vehicle must have been driven at a fast pace. Except that allegation, I find no indication of any negligence on the part of the petitioner. In the given circumstances, speed by itself cannot be reckoned as satisfactory indication of culpable negligence, I agree. 25. To sum up, the conclusion appears to be inevitable that the immediate cause of the accident was the gross negligence or the error of judgment on the part of the deceased driver of the K.S.R.T.C bus, who took his vehicle to the right hand side of the road suddenly in an attempt to overtake the autorickshaw which was proceeding in front without taking note of the petitioner's bus, which was coming in speed in the opposite direction. Merely because the accident had taken place and unfortunate consequences had ensued, criminal courts Crl.R.P.No.1605/02 16 would not be justified in readily inferring culpable responsibility for the drivers. 26. I am, in these circumstances, satisfied that the more prudent, correct and just course that has to be followed in the facts and circumstances of the given case is to concede to the petitioner the benefit of doubt which is aroused in the mind of the court on the basis of the totality of inputs about the responsibility of the petitioner of culpable negligence/rashness. I unhesitatingly concede to the petitioner the benefit of such doubt. 27. In the result, a) This Crl.R.P is allowed. b) The concurrent verdict of guilty, conviction and sentence imposed on the petitioner under Sections 279, 337, 308 and 304A I.P.C are set aside. c) The petitioner is found entitled to the benefit of doubt is consequently found not guilty and acquitted. (R.BASANT, JUDGE) jsr Crl.R.P.No.1605/02 17 R.BASANT, J Crl.R.P.No.1605 of 2002 ORDER 5th DAY OF AUGUST 2009 Crl.R.P.No.1605/02 18