IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 Crl.Rev.Pet.No. 531 of 2001(C) ------------------------------ CRA.645/1999 of ADDL.SESSIONS COURT II, KOZHIKODE CC.148/1997 of JUDL.MAGISTRATE OF FIRST CLASS I, PERAMBRA .................... REVISION PETITIONER/APPELLANT/ACCUSED: ------------------ ANEESH S/O.NARAYANAN, VENGALATH MANNIL, P.O.PERUVANNAMUZHI (VIA) PERAMBRA. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT/RESPONDENT/ COMPLAINANT: ------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR. HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SHRI C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.531 of 2001 -------------------------------------- Dated this the 16th day of September, 2008. ORDER On a charge of driving the jeep rashly and negligently so as to endanger human life and causing hurt to PW1 on 28.12.1996 at about 12.30 p.m., the revision petitioner faced trial in the court of the Judicial First Class Magistrate I, Perambra in C.C.No.148 of 1997 for offences punishable under Sections 279 and 337 of Indian Penal Code. He was found guilty, convicted and sentenced to undergo simple imprisonment and payment of fine. In appeal though the conviction was confirmed, the sentence was modified. The revision petitioner is not satisfied with the reprieve he got from the appellate court and has preferred this Revision Petition. 2. Heard the learned counsel for the revision petitioner and the Public Prosecutor. The point for consideration is whether the concurrent finding entered by the courts below regarding the rash and negligent driving is supported by the evidence on record on that point. 3. The case is that on the relevant day and time the revision petitioner was driving the offending vehicle, a taxi jeep. It hit PW1 who was engaged in tarring work on the road in question. That, PW1 suffered hurt is not disputed before me and is proved by the evidence of PW5, supported by Ext.P3. Crl.R.P.No.531/2001 2 4. PWs 1 to 4 were examined by the prosecution to speak to the alleged rashness and negligence on the part of the revision petitioner. PWs 1, 3 and 4 identified the revision petitioner as the driver of the offending vehicle. I do not find any reason to interfere with the finding of the courts below that revision petitioner was at the wheels of the offending vehicle at the relevant time. 5. So far as the allegation of rashness and negligence is concerned, it is proved that PW1 was engaged in tarring work and though it is not stated about the tarring work in Ext.P5, the mahazar for the scene of occurrence, evidence of PWs 1 to 4 proved that the tarring work was being carried on at the relevant time and they were engaged in tarring work at half width of the road with the vehicles passing through the remaining portion. PW1 would say that while he was engaged in tarring work the jeep came from behind and hit him. That version is repeated by PWs 2 to 4 as well. 6. In a case of this nature, the mahazar prepared by the Investigating Officer concerning the spot of accident is useful for appreciation of the evidence. If the mahazar prepared by the Investigating Officer is not useful either due to vagueness or other reason, the court is not powerless to direct him to prepare one afresh. The defence side also can produce one and prove it in the manner known to law. Going by the evidence of PW7 who prepared Ext.P5, the scene mahazar, he had not identified the accident spot on his own but it was pointed out to him by the witnesses who, PW7 conceded were not witnesses to the accident. In other words, the accident spot as stated in Ext.P5 Crl.R.P.No.531/2001 3 is only hearsay evidence. So far as the statement regarding the accident spot in the scene mahazar is concerned, the Investigating Officer can get three types of information, viz., what the Investigating Officer saw at the spot, the inference he has drawn from what he saw at the spot and the information he collected from the witnesses. The last two types of information contained in the mahazar comes within the mischief of 'hearsay evidence' and hence is not admissible in evidence whereas the first type of information, ie., what the Investigating Officer saw at the spot is admissible in evidence even if it is not so specifically stated by the Investigating Officer in his deposition, but, the document itself is marked in evidence without objection. In the case on hand, the information contained in Ext.P5 regarding the accident spot is the last type of information I have referred to and therefore, is not admissible in evidence. Therefore, Ext.P5 is of no value in the case on hand. 7. There is also yet another inherent weakness for Ext.P5. Though in Ext.P5 the width of the tarred portion of the road at the accident spot is stated as 5.50 metres the accident spot is stated as one metre south of the northern tar end and 1 ½ metres (or, corrected in Ext.P5as 2 ½ metres) north of the southern tar end. Assuming that it is 2 ½ metres , that along with the distance of one metre south of the northern tar end will only bring the total width to 3 ½ metres and not to 5 ½ metres as stated in Ext.P5. Learned counsel for the revision petitioner produced for my perusal the copy of Ext.P5 supplied to the Crl.R.P.No.531/2001 4 revision petitioner wherein the distance to the accident spot from the northern tar end is stated as 2 ½ metres ( and not 1 ½ metres). This material discrepancy is not explained by PW7. 8. Assuming that even in a motor accident case a mahazar for the scene of occurrence is not absolutely necessary if there is reliable oral evidence regarding the accident, then the witnesses to the accident have an obligation to speak about the actual spot where the accident occurred. Such evidence is not coming from PWs 1 to 4. 9. So far as the allegation of rashness and negligence is concerned, there is no acceptable evidence. According to PW1, the accident occurred due to the 'fault' of the revision petitioner, his not explaining what, exactly that 'fault' was. PW2 said that the jeep driver came in an 'arrogant manner', certainly meaning 'recklessly' but he also did not explain what exactly he meant by 'recklessness'. Pws 3 and 4 stated that the jeep came at excessive speed. But then, what is their impression or notion about 'high speed' is not in evidence. Moreover it is not clear whether due to the impact of the hit, the revision petitioner was thrown away from the accident spot. Therefore, the statement of PWs 3 and 4 regarding high speed cannot be acted upon. 10. On going through the evidence what I find is only that the prosecution succeeded in proving that an accident occurred involving the jeep driven by the revision petitioner and that in that accident, PW1 suffered hurt. Crl.R.P.No.531/2001 5 That is much less evidence of culpable rashness or negligence of the revision petitioner. Therefore, the conviction of the revision petitioner cannot stand. Consequently the sentence imposed on him as modified by the learned Sessions Judge is also liable to be set aside. Revision petition therefore, succeeds. The conviction and sentence passed on the revision petitioner are set aside and he is acquitted of the charge against him. Fine if any, deposited will be refunded to the revision petitioner. The bail bond is cancelled. Crl.M.P.No.2548 of 2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.531/2001 6 Thomas P.Joseph, J. Crl.R.P.No.531 of 2001 ORDER 16th September, 2008.