IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 Crl.Rev.Pet.No. 423 of 2002() ----------------------------- CRA.236/1994 of SESSIONS COURT, MANJERI CC.166/1994 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... REVN. PETITIONER/APPELLANT AND ACCUSED: --------------------------------------------------- NANATH SULAIMAN S/OKUNHIMOHAMMED, OORAKAM,MDELMURI,MALAPPURAM DISTRICT BY ADV. SRI.BABU S. NAIR RESPONDENTS/RESPONDENTS/COMPLAINANT: --------------------------------------------------- 1. THE STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM,KOCHI-31 2. THE SUB INSPECTOR OF POLICE, VENGARA POLICE STATION,MALAPPURAM DISTRICT R1 & R2 BY PUBLIC PROSECUTOR, SRI.AMJED ALI. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.423 of 2002 ---------------------------------------- Dated this the 16th day of March 2009 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Sections 279 and 338 I.P.C. The petitioner has been convicted and sentenced to undergo S.I for a period of six months and one year respectively. Sentences were directed to run concurrently. 2. The crux of the allegations is that on 26/12/1993, when PW1, a boy aged about 12 years was proceeding on his bicycle from south towards north along with the public road, a pick up van driven by the petitioner herein came in the opposite direction in a rash and negligent manner at an excessive speed. As a result of such rashness, negligence and excessive speed, the van driven by the petitioner hit against the bicycle in which PW1 was travelling. Consequently, the victim/PW1 suffered injuries including a grievous injury/fracture. 3. The investigation commenced on the basis of an F.I.S lodged by PW1 on 27/12/1993 when he was undergoing treatment at the hospital. Investigation was completed with the final report submitted by PW9. Cognizance was taken. The Crl.R.P.No.423/002 2 accused denied the offence alleged against him and thereupon PWs 1 to 9 were examined and Exts.P1 to P6 were marked. 4. The accused, in the course of the trial and when examined under Section 313 Cr.P.C, took up the stand that he was absolutely innocent. He was not driving the vehicle, it was suggested at a certain stage. Simultaneously, the contention was taken that PW1 was negligent. There was a pillion on the bicycle. Seeing the pick up van coming in the opposite direction, that child had jumped out from the bicycle. PW1 had lost control of the vehicle and had fallen and suffered injuries. The accused examined a witness as DW1. PW1 is the injured. PWs 2 and 3 are the occurrence witnesses. PWs 1 to 3 supported the prosecution case. PW1 proved Ext.P1 F.I.S also. PW4 is the doctor who examined PW1 and issued Ext.P2 wound certificate. PWs 5 and 6 are attestors to Ext.P3 scene mahazer. PW7 is the attestor to Ext.P4 which is the body mahazer of the vehicle driven by the petitioner. PW8 is the Head Constable who registered the F.I.R, Ext.P5. PW9 conducted the investigation and filed the final report. Ext.P6 is the report of the Motor Vehicles Inspector who was not examined in court. In Ext.P6, there is no damage seen on the vehicle. 5. The accused examined DW1 as a witness on his side. According to him, the accused was driving the vehicle at the Crl.R.P.No.423/002 3 relevant time; but the accident occurred on account of the negligence of PW1 who lost control of the vehicle when the pillion jumped out of the bicycle. 6. The courts below concurrently came to the conclusion that the prosecution has succeeded in establishing all the elements of the offences punishable under Sections 279 and 338 I.P.C. Accordingly they proceeded to pass the impugned concurrent judgments. 7. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent findings, the learned counsel for the petitioner submits that the courts below erred totally in placing reliance on the oral evidence of PWs 1 to 3. On an assessment of broad probabilities in this case, the learned Magistrate must have come to the conclusion that there was no rashness or negligence on the part of the petitioner and that there was in fact no impact between the two vehicles. PW1 had fallen down from his vehicle when the pillion jumped out of the bicycle and PW1 lost control of the bicycle seeing the pick up van coming in the opposite direction. 8. I am not satisfied that the evidence of DW1 can be relied on. The court below have rejected his testimony. I find nothing wrong in the approach made by the court below. It is significant Crl.R.P.No.423/002 4 that DW1's name did not figure at all during the cross-examination of PWs 1 to 9. 9. Negligence is the breach of the duty to take care. Rashness is the callous disregard of the possible consequence to one's reckless act which such person is conscious of. 10. Rashness and negligence is alleged against the petitioner on two grounds. First of all, it is contended that the vehicle had travelled through the wrong side of the road and the incident had taken place. Secondly it is contended that the evidence of PW1 suggests that the petitioner was talking to some other person in the vehicle when the accident took place. 11. The learned counsel for the petitioner on the other hand submits that the learned Magistrate erred grossly in not giving due attention to the contention that there was no impact between the two vehicles and the accident took place only when PW1 lost control of the bicycle when the pillion jumped out of the bicycle seeing the pick up van. 12. In support of this contention, the learned counsel for the petitioner first of all points out that the investigating officer has not chosen to identify and locate the precise spot of impact. Road/scene of the occurrence has a width 330 cm only. There is a road margin east having a breadth of 150 cms and west having a Crl.R.P.No.423/002 5 breadth of 130 cms. Neither the bicycle nor the pick up van had any damage suffered by it. In the scene mahazer, the precise point of impact is not located at all. Of course, there are blood stains on the western side of the road and that is relied on by the prosecution. The learned counsel for the accused submits that the mere fact that blood stains were found on the western road margin, cannot lightly lead a prudent mind to the conclusion that the impact took place there. Even if the victim were taken to the road margin after the incident, blood marks there are perfectly possible. The learned counsel for the petitioner argues with the help of the scene mahazer that in the scene mahazer, the prosecution is not able to point out the precise point of impact. 13. I agree with the learned counsel for the petitioner that the precise point of impact is not located in the scene mahazer. Both vehicles admittedly did not suffer any damage. A reading of Ext.P5 F.I.S shows that the 12 year old PW1 was riding a bicycle along the public road for the purpose of filling air in the foot ball which he was carrying with him. The probability of the presence a pillion rider in the bicycle is high in the circumstance of the case. 14. Having considered all the relevant circumstances, though I agree with the court below that the evidence of DW1 deserves to be rejected, I find force in the submission of the learned Crl.R.P.No.423/002 6 counsel for the petitioner that in the absence of precise location of the spot of impact on the tar road having a total width of 3.30 ms and in the total absence of any damage seen on the two vehicles, the version of the accused is more probable and that, at any rate, the benefit of doubt deserves to be conceded. In the totality of circumstances, I am persuaded to agree with the learned counsel for the petitioner. I am satisfied that the petitioner deserves to be exonerated of the allegations raised against him. 15. In the result, a) This revision petition is allowed in part. b) The impugned verdict of guilty, conviction and sentence of the petitioner are set aside. c) The revision petitioner is found entitled to the benefit of doubt and is consequently found not guilty and acquitted. (R.BASANT, JUDGE) jsr Crl.R.P.No.423/002 7 Crl.R.P.No.423/002 8 R.BASANT, J Crl.M.A.Nos.21 & 65 of 2008 in Crl.R.P.No.765 of 2007 ORDER 17th DAY OF JANUARY 2008