IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 Crl.Rev.Pet.No. 402 of 2009() --------------------------------------- AGAINST THE JUDGMENT DATED 12/12/2008 IN CRA.350/2006 OF SESSIONS COURT (ADHOC-I), MANJERI. CC.177/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NILAMBUR .................... PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------- AREEKKAD SHOUKATHALI, S/O. KUNHALANKUTTY, VADAPURAM, NILAMBUR AMSOM, NILAMBUR TALUK. BY ADV. MR.R.SUDEESH KUMAR MR.SUNIL KUMAR A.G RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------------------- STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR MR.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/06/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO. 402 OF 2009 ---------------------------------------- Dated this the 2nd day of June, 2009 ORDER This revision is in challenge of the judgment of learned Additional Sessions Judge (Adhoc-1), Manjeri confirming conviction and sentence imposed on the petitioner for offences punishable under Sections 279, 337 and 304(a) of Indian Penal Code (for short, “the Code”) Case is that on 22.4.1996 at about 2.45 p.m., petitioner drove bus bearing Registration No.KLL-8228 along Pookootumpadam – Nilambur road in a rash and negligent manner so as to endanger human life and at Kottampara that bus hit a telephone post, then an autorickshaw and then rammed into the shop of PW7 resulting in injury to the passengers in the bus and PW7, the owner of the shop. Two of them succumbed to the injuries. Prosecution examined PWs 1 to 21 and proved EXts.P1 to P26. Petitioner examined DW1. Courts below found that petitioner drove the vehicle rashly and negligently so as to endanger human life and that resulted in the accident Crl.R.P.No.402/09 2 involving injury and death. It is contended by learned counsel that identity of the driver of the offending bus is not proved and that at any rate, there is no evidence to show that the accident was due to any rashness or negligence on the part of the petitioner. 2. Prosecution examined PWs 1 to 11 to 10 to prove the accident. Of them, PWs 4 to 6 and 11 are the injured. The fact of their sustaining injuries and the death of two persons is proved by the evidence of PWs 15 and 20 and Exts.P13 to 18 and P23. That finding is not under challenge and I do not find reason to interfere with that as well. 3. PWs 4 to 6 and 11 did not speak to the cause of the accident. They however testified to the accident. PW10 stated that the bus was at high speed. PW7, the owner of the shop stated that while he was sitting in the shop, the bus rammed into his shop. The shop building collapsed. He sustained injury due to the fall of bricks on the head. He identified petitioner as the driver of the offending bus and claimed that the bus was at high speed. He denied that he had told the investigation officer (PW21) that he could not identify the driver of the bus at the relevant time. But the alleged omission was not Crl.R.P.No.402/09 3 brought out through PW21, the investigating officer. PW21 stated that on 2.5.1996, petitioner surrendered in the police station and thereon he was arrested and released on bail. The conductor of the offending bus produced Ext.P25, the trip sheet of the bus which PW21 seized as per Ext.P20. Ext.P25 (a) is the relevant page of trip sheet. Learned Public Prosecutor points out that though in the FIR the offender was described as the driver of the bus without mentioning his name or other details for identification, that the petitioner surrendered at the police station on 2.5.1996 obviously indicated that he was the driver of the bus at the relevant time. It is also submitted that the stand of DW1 would indicate that petitioner was of the driver of that bus. For, DW1 who claimed to have been a passenger in the bus claimed that he knows the bus driver but, when he was asked who the driver was, he kept silence for some time and then claimed that he does not know who the driver was. I am however, not entering into any finding whether petitioner was the driver of the bus since it is seen that the alleged omission or contradiction in the previous statement of PW7 was not brought out through PW21, Investigating Officer and on the Crl.R.P.No.402/09 4 facts of this case, I am of the view that the matter has to go back to the trial court for further evidence. 4. So far as the cause of accident is concerned, it is true that going by Ext.P19 mahazar for scene of occurrence the accident occurred on the extreme wrong side of the bus. But, the prosecution has the responsibility to eliminate mechanical defect of the vehicle being the cause of the accident. It is for that purpose that the vehicle is got checked by the Motor Vehicles Inspector. I find that though the report of the Motor Vehicles Inspector on the vehicle involved was produced in Court, that document was not marked on the side of the prosecution, nor was the Motor Vehicle Inspector examined. I do not think that because no contention regarding mechanical defect was raised or no suggestion was put to any of the prosecution witnesses regarding that, the prosecution is not obliged to prove that the vehicle had no mechanical defect. Prosecution had to prove the report of the Motor Vehicle Inspector in the proper manner, which was not done. In the circumstances, the conviction and sentence of the petitioner cannot be sustained. 5. It is not as if for the said reason, petitioner has to Crl.R.P.No.402/09 5 be acquitted of the charges against him, nor am I inclined to think that giving the prosecution an opportunity to adduce evidence which was produced in Court would amount to filling up any lacuna. 'Lacuna' meant the inherent vedge in the prosecution case and not a slip to prove the document produced, as held by the apex court in Rajendra Prasad V. Narcotic Cell [1999(2) KLT 779]. Hence, it is necessary in the ends of justice to send back the case to the trial Court so that the report of the Motor Vehicle Inspector is proved in evidence in the proper manner. At the same time, petitioner will get an opportunity to recall PW21 for further cross examination. Resultantly, this revision petition is allowed by way of remand. Conviction and sentence on the petitioner are set aside and the case is remanded to the court of learned Judicial First Class Magistrate, Nilambur for further evidence in the manner stated above. Petitioner shall appear in that court on 30.6.2009. THOMAS P. JOSEPH, JUDGE Acd Crl.R.P.No.402/09 6