IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 Crl.Rev.Pet.No. 2081 of 2009() ------------------------------ CRA.186/2005 of ADDL.SESSIONS COURT, FAST TRACK-III (ADHOC), MANJERI CC.403/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, MANJERI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- BAPPU, S/O. SUMAN, PALLI HOUSE, NEAR CHEMMANIYUR JUMA-AT PALLI, MELATTUR, MALAPPURAM DIST. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S)/RESPONDENTS/ COMPLAINANT & STATE ----------------------------- 1. THE SUB INSPECTOR OF POLICE, KARUVARAMKUNDU. 2. THE STATE OF KERALA, REP. BYHTHE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2081 of 2009 -------------------------------------- Dated this the 30th day of July, 2009. ORDER In an unfortunate accident involving a bus allegedly driven by the petitioner and a jeep driven by PW2, three students lost their lives and a few others suffered hurt or grievous hurt as found by the courts below. It was also found that petitioner was driving the offending bus at the relevant time in a rash or negligent manner so as to endanger human life. Petitioner was found guilty, convicted and sentenced to undergo imprisonment for various periods under Sections 279, 337, 338 and 304A of the Indian Penal Code. He was acquitted of the charges under the Motor Vehicles Act. His challenge to the conviction and sentence did not appeal to the learned Additional Sessions Judge, Fast Track Court No.III (Adhoc), Manjeri. In this revision petitioner contends that he was not driving the offending vehicle at the relevant time and hence his conviction and sentence may be set aside. 2. The accident occurred on 19.4.2003 at about 6 p.m. The bus was going towards Perinthalmanna side and as per the prosecution version it hit the jeep driven by PW2 which came from the opposite side and three students traveling in the jeep died and a few others suffered hurt/grievous hurt. Ext.P6 is the mahazar for scene of occurrence prepared by PW29, the investigating officer. Ext.P11 is the sketch for scene of occurrence prepared by the Village Crl.R.P.No.2081/2009 2 Officer. As per Exts.P6 and P11, lie of the road at the place of accident is north-south. The tar portion has width of five metres. Spot of accident is shown as 1.20 metres east of the western tar end, ie. the wrong side of the bus which was proceeding towards Perinthalmanna side. From the above evidence, though the witnesses for the prosecution did not support it courts below found that the bus has gone to its wrong side and hit the jeep. Exts.P26, P27 and evidence of PW27 show that accident was not due to mechanical defect of the bus. Based on the above evidence courts below found, rightly, that the accident was the result of rashness or negligence of driver of the bus. 3. Then the question arose whether petitioner was driving the offending bus at the relevant time. When questioned under Section 313 of the Code of Criminal Procedure he denied that he was driving the bus. According to him, one Nazar who had no valid driving licence was at the wheels and to avoid consequences of driving without licence and causing accident Nazar was kept out and petitioner was implicated in the case. I have gone through the records and find that none of the prosecution witnesses stated that petitioner was driving the offending bus at the relevant time. PWs 2, 6 to 13, 17, 21 and 22 though examined by prosecution to prove the accident pleaded ignorance whether petitioner was driving the bus at the relevant time. 4. What remained is the evidence of PW18, conductor of the bus. He was examined to prove Ext.P8, trip sheet of the bus claimed to be prepared by him. That trip sheet was seized by PW29, investigating officer as per Ext.P9, mahazar on 22.4.2003. (Accident was on 19.4.2003). PW18 stated that he had Crl.R.P.No.2081/2009 3 produced Ext.P8 on the date of mahazar, Ext.P9 (22.4.2003). Ext.P8(a) is the relevant entry in Ext.P8 on 19.4.2003 where there is reference to petitioner as driver of the offending vehicle. His licence/badge number are given in Ext.P8 (a). PW18 stated that he used to prepare trip sheet and maintain it properly. In chief examination he stated that he has written in Ext.P8(a) that at the relevant time bus was driven by one Babu whom he identified as the petitioner. In cross examination he stated that it is correct to say that petitioner was not driving the bus at the time of accident and claimed that he wrote Ext.P8(a) as demanded by the police. In re-examination on behalf of prosecution, the witness stated that he had given a statement to the police that petitioner was driving the bus. His further version is that his statement in chief examination that petitioner was driving the bus at the time of accident is correct. But in further cross examination on behalf of petitioner with permission, the witness again changed sides and said that at the time of accident Nazar was also in the bus. Nazar also used to drive that bus. When he saw Nazar was at the wheels (at the relevant time). It was put to him whether he knew exactly who was driving the bus at the relevant time as he was on the rear side of the bus. He stated that he was on the rear side. He also gave positive answer when it was suggested to him that Ext.P8(a) was so written to help Nazar. Court stepped into the scene. Learned magistrate asked why he wrote Ext.P8(a) to help Nazar. His answer was that driving licence of Nazar had not been renewed (at the relevant time). To the question whether his statement in the court is true, witness answered in affirmative. (It is not clear which of the different statements of PW18 was referred to as true in answer to Crl.R.P.No.2081/2009 4 the question put by the court). There was re-examination with the permission of the court. Then PW18 stated that it was petitioner who was driving the bus and that he unknowingly made the statement in the court otherwise. Thus, it is seen that PW18 has no consistent version as to who exactly was driving the bus. If Ext.P8(a) could have been accepted as true, that could have been taken into account. Unfortunately, Ext.P8 comes into scene only on 22.4.2003 though accident occurred on 19.4.2003. It is not as if before 22.4.2003 the officer who conducted investigation had not inspected the bus. Though separate body mahazar was not prepared, he has inspected the bus even as on the date of accident as seen from Ext.P6, mahazar for scene of occurrence. PW29, investigating officer has no case that at that time he searched for the trip sheet of the bus. PW29 should have searched for the trip sheet then. PW29 agreed that the trip sheet ought to have been kept in the vehicle itself. But to the question whether he had seen the trip sheet in the bus at the time of preparing Ext.P6, mahazar for scene of occurrence the answer was that he does not know. Was PW29 truthful in that statement? It is also interesting to note that PW29 did not enquire whether petitioner had a valid licence to drive the vehicle at the relevant time. 5. In so far as there is no evidence that the trip sheet was available in the bus on the date of accident and it emerged into the scene only on 22.4.2003, possibility of the relevant entries in Ext.P8(a) being made at any time after the accident cannot be ruled out. Evidence of PW18 suggests that. Evidence of PW18 shows that possibility of Nazar (who had no driving licence) Crl.R.P.No.2081/2009 5 driving the vehicle cannot be ruled out. If so, to avoid legal consequences on the owner of the bus due to the driver having no licence petitioner who had a licence being implicated cannot be ruled out. 6. Yet another case of motor accident goes into acquittal due to lack of proper investigation by the officer concerned at the appropriate time. Another case involving death of three students and hurt/grievous hurt to a few others ends in acquittal. Credit for that must go to the officer who conducted investigation in this case. I am aware, the illegality or irregularity or even in the lack of interestedness shown by he investigating officer in the course of investigation shall not lead to an unmerited acquittal. But in the circumstances proved in the case, no implicit reliance can be made on the evidence of PW18 and Ext.P8(a) particularly as none of the occurrence witnesses stated that petitioner was driving the offending bus at the relevant time. Petitioner therefore is entitled to the benefit of doubt. Resultantly, this revision petition succeeds. Conviction and sentence imposed on petitioner are set aside and he is acquitted of the charges against him. THOMAS P.JOSEPH, Judge. cks