IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 CRL.A.No. 884 of 2002() ----------------------- CC.115/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, CHALAKUDY .................... APPELLANT(S): COMPLAINANT ------------------------- MARY CHACKO, CHULLIVEETIL, KARAYAMPARAMBU, KARUKUTTY VILLAGE, ALWAYE TALUK BY ADV. SRI.K.R.KURUP RESPONDENT(S): ACCUSED ---------------------- JOY S/O. LONAPPAN, PALIYAKKARA HOUSE, KODAKARA VILLAGE, PERAMBRA PUBLIC PROSECUTOR SRI.TEK CHAND SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.Appeal.No.884 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of August, 2009 JUDGMENT Challenge in this appeal by the complainant is to the judgment of Judicial First Class Magistrate, Chalakudy in C.C.No.115/1999 dated 12th April, 2002 acquitting the respondent/accused finding him not guilty of the charge under Section 279 and 304(A) of IPC. 2. The appellant/complainant filed a complaint before the trial court alleging that on August 3, 1996 at Perumbi near Koratty while her husband was cycling along the side of National Highway, he was knocked down by a lorry bearing Reg.No.KL- 7-G-9279 driven by accused causing serious injuries to him, that he succumbed to the injuries sustained by him while undergoing treatment in the hospital and that the accident occurred due to the rash and negligent driving of the lorry by the accused which is an offence punishable under Section 279 and 304(A) of IPC . It is further alleged that though complaint was preferred to the Police, they have referred the case. Crl.Appeal.No.884/02 2 3. On receipt of the complaint, the trial court recorded the sworn statement of the complainant. The accused on appearance before the trial court pleaded not guilty to a charge under Section 279, 304(A) of IPC. PWs 1 to 7 were examined by the complainant. When questioned under Section 313 of Cr.P.C. by the lower court, the accused submitted that at the time of alleged accident, his lorry was at Vazhikkadavu check post . No defence evidence was adduced. 4. On an appreciation of evidence, the trial court found that complainant has failed to establish the identity of the driver of the lorry involved in the accident and acquitted the accused finding him not guilty of the offences charged against him. The complainant has challenged the said judgment in this appeal. Special leave was granted by order dated 2/8/2002 in Crl.M.C.No.7024/2002. 5. Arguing the appeal, the learned counsel for the appellant submitted that PW3 and PW4 , the independent eye witnesses to the incident have identified the accused as the driver of the offending lorry and that therefore the lower court should have believed their evidence and convicted the accused. The learned counsel for the respondent supporting the judgment argued that police has referred the case and Crl.Appeal.No.884/02 3 that therefore the lower court is justified in acquitting the accused. 6. The main question which arises for consideration is whether the finding of the trial court that the accused is not guilty of the offence alleged against him and acquitting him can be sustained ? 7. Before the trial court PW1 to 7 were examined on the side of the complainant . PW1 is the wife of the deceased . She is not an eye witness to the incident. PW2 is the brother of PW1. He testified that while he along with the accused was cycling along the side of the road, a lorry bearing Regn. No. KL- 7-G-9279 came at a high speed far behind and knocked the deceased down and that he saw the number plate of the lorry in the street light and in the light of the vehicle passing by. PW3 is also an eye witness to the incident. He has sworn that while he was standing on the side of the road talking to his friend, he witnessed the accident, that after knocking down the deceased, the lorry slowed down and the driver peeped through the door, that the number of lorry is KL- 7-G-9279 and that the accused was the driver. PW4 is another eye witness to the incident. He has also testified that he witnessed the accident and he identified the accused as the driver of the offending lorry. PW5 is the person who gave the FI statement - Crl.Appeal.No.884/02 4 Ext.P1 to the police. He is not an eye witness to the incident. PW6 is a witness to the inquest report. PW7 is the S.I. of police of Koratty Police Station who investigated the police case and referred the case. He would say that though he seized the offending vehicle and that on investigation it was found that the same was not involved in the accident. 8. The lower court disbelieved the evidence of PW3 and PW4 that they identified the accused when he peeped through the door of the lorry after the accident as it is impossible to identify a person in the night whom they had no prior acquaintance. But PW2 to PW4 categorically identified the vehicle. Admittedly they have no enemity towards accused to testify against him. In the light of convincing swearing of PW2 to PW4, I feel that the lower court went wrong in disbelieving them merely on the ground that in the night they could not have identified the accused. Therefore, I am of the view that the finding of lower court that they were testifying falsely to help the complainant cannot be sustained. I feel that the impugned judgment is unreasonable. That being so, the impugned judgment of lower court acquitting the accused has to be set aside. Crl.Appeal.No.884/02 5 9. The counsel for respondent/accused submitted that the alleged offending vehicle was at the time of accident at Vazhikadavu Check post and an opportunity should be granted to him to prove the same by remanding the case to the lower court. His request appears to be reasonable which is also not opposed by the counsel for the appellant. In the result, the appeal is allowed by way of remand. The judgment of lower court acquitting the accused is set aside. The case is remanded to lower court for fresh disposal on the basis of the evidence already on record and further evidence, which the parties may adduce, if any. Both the parties are at liberty to adduce further evidence, if any, before lower court. The lower court shall dispose of the case as early as possible, but not later than six months from the date of receipt of copy of this judgment. Parties shall appear before trial court on 07/09/2009. Send the records to lower court within a week. P.Q.BARKATH ALI JUDGE sv. Crl.Appeal.No.884/02 6