IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 Crl.Rev.Pet.No. 151 of 2008(D) ------------------------------ CRA.509/2005 of ADDL. SESSIONS COURT (ADHOC-I), THRISSUR CC.866/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------- ABDUL RAHIMAN, S/O.MOOSA MASTER, OLAVANNA, KOZHIKODE 54. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS/COMPLAINANT & STATE: ---------------------------------- 1. S.I. OF POLICE, TRAFFIC, TRICHUR. 2. STATE OF KERALA, REP; BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P. RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 151 OF 2008 ------------------------------------------ Dated this the 30th day of September, 2008 O R D E R Petitioner was concurrently convicted and sentenced for the offence under section 279, 337 and 338 of Indian Penal Code. Prosecution case is that on 23.7.2002 at about 4 a.m. petitioner was driving KSRTC bus from east to west, in a rash and negligent manner so as to endanger human life and by such driving hit on autorikshaw KL.8H-4327, which was driven by PW4 along with Koorkkanchery-Thrissur public road from south to north at Chettiyangadi, Thrissur and caused grievous hurt to PWs 1 to 3 and thereby committed offences under section 279, 337 and 338 of IPC. 2. Petitioner pleaded not guilty. Prosecution examined PW4, driver of the autorikshaw, PWs 1 to 3 the injured passengers of the autorikshaw and PW5, an eyewitness and PW7 attester to Ext.P3 and P4 mahazars respectively of the K.S.R.T.C. bus and autorikshaw and PW6 the attesting witness to Ext.P2 scene mahazar and PW8 Assistant Motor Vehicle Inspector, who CRRP 151/08 2 prepared Ext.P6 certificate on examining KSRTC bus and Ext.P7 report on inspecting the autorikshaw and PWs 9 and 10, the Doctors, who treated PWs 1 to 3 and PW11 the investigating officer and PW12, the Additional Sub Inspector, who verified and laid the charge and on that evidence convicted petitioner for the offence under section 279, 337 and 338 of IPC. Petitioner was sentenced to simple imprisonment for six months each for the offence under section 279 and 338 of IPC. No separate sentence was awarded for the offence under section 337. He was also disqualified from holding a driving licence for one year under section 20 of Motor Vehicle Act. Petitioner challenged the conviction and sentence before Sessions Court, Thrissur in Crl. Appeal 509 of 2005. The learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this petition. 3. Revision petitioner contended that Courts below did not properly appreciate the evidence and though a petition was filed to recall PW1 for cross-examination, it was not allowed and petitioner was denied opportunity to cross-examine PW1. It was CRRP 151/08 3 also contended that there is material contradictions in the evidence and in any case there is no evidence to prove the offences and therefore conviction and sentence are not sustainable. 4. Learned counsel appearing for petitioner and learned public prosecutor were heard. 5. Ext.P2 scene mahazar shows that the incident was on the junction where four roads meet. The autorikshaw driven by PW4 was proceeding from south to north. KSRTC bus driven by petitioner was proceeding from east to west. There is a traffic island at the road junction. The scene of occurrence was 5.20 metres to the south-west point from the south western corner of the traffic island and 7.4 metres to the east of the south western road margin. Though petitioner at the time of evidence disputed his identity as the driver of the bus, when questioned under section 313 of Cr.P.C. the identity was admitted. PW5 the Conductor of KSRTC bus, though declared hostile to the prosecution, identified petitioner as the driver of the KSRTC bus. He was not cross-examined. The Courts below on the evidence rightly found that petitioner was the driver of KSRTC CRRP 151/08 4 bus KL.15-4340, which was proceeding through Thrissur- Chettiyangadi public road from east to west at about 4 a.m. on 23.7.2002. 6. The evidence of PWs 1 to 3, passengers of autorikshaw, and PW4, the driver of autorikshaw, establish that PW4 was driving the autorikshaw KL.8H-4327 with PWs 1 to 3 as passengers, from south to north on that day at about 4 a.m. and the KSRTC bus hit on the autorikshaw and PWs 1 to 3 sustained injuries. The evidence of PW10, Senior Lecturer in Orthopaedics, Medical College Hospital, Thrissur establish that he examined PW4 and prepared Ext.P9 wound certificate at 9 a.m. and noted contusion on the right capillary region of PW4. The evidence of PW9, the Senior Lecturer in Orthopaedics, Medical College Hospital, Thrissur establish that at 3.30 a.m. the Doctor examined PW1 and prepared Ext.P8 wound certificate and PW1 sustained fracture of right femur and the alleged cause of injury was at 3.30 a.m. on 23.7.2002 when the bus hit the autorikshaw. Evidence therefore establishes that PW1 sustained grievous hurt and PW4 simple hurt. 7. The crucial question is whether there is evidence to CRRP 151/08 5 prove that the incident occurred due to rash and negligent driving of K.S.R.T.C.bus by petitioner. The learned Magistrate and learned Sessions Judge found that evidence establish that the incident occurred due to rash and negligent driving of KSRTC bus. Reliance was placed on Exts.P3 and P4 reports prepared by PW8 the Motor Vehicle Inspector after inspection of KSRTC bus and the autorikshaw. It was found that from the nature of the damages caused to the autorikshaw, the incident could have caused only when the bus which came from east hit on the right side of the autorikshaw. Ext.P2 scene mahazar shows that the exact point at which the bus hit autorikshaw was 5.20 metre to the south westeren corner of the traffic island which is 7.4 metres to the north east of the western road margin. It is clear that the autorikshaw which was proceeding from the south had proceeded towards the north and had turned to the west when the incident occurred. Necessarily the bus from the east had also proceeded towards the west through the south of the traffic island. Though learned Magistrate has relied on the inspection report submitted by PW8 and found from the nature of the damages that it could only be due to the negligent CRRP 151/08 6 driving of the bus, it is seen from Ext.P4, the report on inspection of autorikshaw that damage was not only on the right side of the autorikshaw, but also on the front. The front glass as well as the front right indicator were broken. From Ext.P4 alone it cannot conclusively be found that the bus hit on the right side of the driver’s seat of the autorikshaw. If the autorikshaw had hit on the right on the bus with its front side the damage could be caused. Evidence of PW8 the Motor Vehicle Inspector shows that when he was specifically asked whether the damages noted to the autorikshaw could be caused if the autorikshaw had hit the bus, PW8 agreed with the suggestion. Unfortunately this aspect was omitted to be taken note of by the learned Magistrate and the learned Sessions Judge. Though PW1, the injured, was not cross-examined, his evidence does not show that KSRTC bus was coming in high speed or that the incident was caused due to the negligent driving of the KSRTC bus. The chief examination is only that he could not identify the driver of the bus and the incident was caused due to rash and negligent driving with speed. He did not depose that rash and negligent driving was on the part of the driver of the KSRTC bus. He had only stated that CRRP 151/08 7 bus had come from the side and hit on the autorikshaw. Therefore learned Sessions Judge was not correct in holding that evidence of PW1 shows that petitioner was driving KSRTC bus rashly or in high speed. Evidence of PW2 shows that when he was cross-examined with regard to the speed of the bus, he did not give any answer. When he was specifically asked whether being a junction the bus cannot proceed with speed, PW2 did not give any answer. The evidence of PW3 also did not establish that petitioner was driving the bus rashly or negligently. PW4 the driver of the autorikshaw, in fact turned hostile and deposed that he cannot say that whether the incident was caused due to any rash and negligent driving of the bus. PW5 the Conductor of bus also did not support the prosecution and deposed that the autorikshaw was coming in high speed and not the bus. In the light of these evidence, it cannot conclusively be held that the incident occurred due to the rash and negligent driving of the bus by the petitioner. In such circumstances conviction of the petitioner for the offence under section 279, 337 and 338 of IPC is not sustainable. As it is possible that the incident could have happened even if the KSRTC bus was not being driven rashly or CRRP 151/08 8 negligently, petitioner in any event is entitled to the benefit of doubt. In such circumstances the petitioner is entitled to an order of acquittal. Revision is allowed. The conviction of the petitioner by learned Magistrate as confirmed by the learned Sessions Judge and the sentence awarded are set aside. Petitioner is found not guilty of the offences. He is acquitted. The bail bond executed by him stands discharged. M. SASIDHARAN NAMBIAR, JUDGE Okb/-