IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 Crl.Rev.Pet.No. 1983 of 2009() -------------------------------------------- CRA.NO.653/2007 OF ADDL.SESSIONS COURT,ADHOC I,PALAKKAD. C.C.NO.243/2004 OF JUDICIAL FIRST CLASS MAGISTRATE COURT III, PALAKKAD. ---------- REVISION PETITIONER/APPELLANT:ACCUSED: ---------------------------------------------------------------------- ARAVINDAKSHAN, S/O.AYYAPPAN, AGED 42 YEARS, KUNNAMKADU HOUSE, VALLIKKODE, PUDUPARIYARAM, PALAKKAD DISTRICT. BY ADV. MR.RAJESH SIVARAMANKUTTY RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE: --------------------------------------------------------------------------------------- STATE OF KERALA BY SI OF POLICE, HEMAMBIKA NAGAR POLICE STATION,(CRIME NO.142/2004) BY PUBLIC PROSECUTOR, HIGH COURT OF KERAKA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.1983 of 2009C --------------------------------------- Dated this 08th day of July 2009 ORDER For alleged rash and negligent driving so as to endanger human life resulting in hurt/grievous hurt to many of the passengers in the vehicles involved, petitioner faced trial in the court of learned Judicial First Class Magistrate-III, Palakkad for offences punishable under Sec.279, 337 and 338 of the Penal Code (for short, “the Code”). According to the prosecution, petitioner was driving the offending bus from Cherupulassery to Palakkad on 13-07-04 and at 2.30 p.m when that bus reached the place of occurrence, on account of its rash and negligent driving it hit the jeep which came from the opposite side. The bus capsized into the adjoining paddy field. Passengers in both the vehicles suffered hurt/grievous hurt. Learned magistrate found petitioner guilty of offences punishable under Sec.279,337 of the Code. He was sentenced to undergo simple imprisonment for three months each. He was acquitted of the charge under Sec.338 of the Code. Crl.R.P.No.1983 of 2009 2 Learned Additional Sessions Judge who heard the appeal confirmed conviction for offences under Sec.279 and 337 of the Code, but modified the sentence as imprisonment for two months each. Aggrieved, petitioner has come up in revision. It is contended by learned counsel that there is no evidence to show that accident was due to the rashness or negligence of petitioner. It is also contended by learned counsel that all the relevant documents were proved through the investigating officer and not through the witnesses concerned. 2. Though prosecution examined PWs.1 to 15 to prove the accident, many of them did not support it fully. They only stated that while they were travelling in the vehicles involved the vehicles collided causing hurt to them. They could not, or did not, identify petitioner as driver of the offending bus. They did not also attribute rashness or negligence on the driver of the bus. PW5, driver of the jeep, himself an injured supported the prosecution. He stated that petitioner was driving the offending bus at excessive speed, that bus came from the opposite side, overtook a lorry going Crl.R.P.No.1983 of 2009 3 ahead and hit the jeep he was driving. According to PW3, rashness and negligence of petitioner caused the accident. PW.12, conductor of the bus stated that petitioner was driving the bus at the time of accident. There is sufficient evidence to show that at the time of accident petitioner was driving the offending bus. 3. Crucial question for decision is whether prosecution has established that accident was due to the rashness or negligence of petitioner. 'Rashness' involves recklessness. It means a hasty, impetous act without due consideration or regard for consequences. Straight, J, said in Empress of India V Idu Beg (ICR (1881) 3 Allahabad 776 that, “.. I may remark that criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality has in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or Crl.R.P.No.1983 of 2009 4 failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted...” Negligence in that conduct which a reasonable man placed in similar circumstances would avoid on the ground that it involved injury to the life and property of himself or others. It is a breach of duty imposed by law. 'Negligence' in its legal acceptance includes omissions as well as commissions. A reference to Secs. 279, 337, 338 and 304A of the Code would show that legislature was fully aware of the distinction between “rashness” and “negligence” that if referred to those words disjunctively making rash or negligent act punishable. In cases involving motor accidents prosecution has to prove rashness or negligence on the part of the driver of the offending vehicle. It is not necessary that witnesses should say that accident was caused due to rashness or negligence. It is not Crl.R.P.No.1983 of 2009 5 for witnesses to decide what was the cause of the accident. That is the responsibility of the court concerned to decide on the materials supplied by the prosecution. What the witnesses are expected to state is facts from which the court could come to the conclusion that there was rashness or negligence on the part of the driver of the offending vehicle. In this case except PW.5, none of the prosecution witnesses referred to any fact or material from which the court could come to the conclusion that there was rashness or negligence on petitioner. 4. So far as evidence of PW.5 is concerned, it is true that he stated that the bus driven by petitioner came from the opposite side at excessive speed overtaking a lorry and hit the jeep. Ext.P2, mahazar for scene of occurrence does not show that there was any tyre mark at the place of the accident. It is seen from that mahazar that both vehicles suffered serious damage on its front side indicating that there was a forceful hit . But in deciding whether there was rashness or negligence the place of accident plays an important role. In Ext.P2, the mahazar lie of the road at the place Crl.R.P.No.1983 of 2009 6 of accident is given as east-west. The tar portion has width of 8metres. Accident spot is shown as 5.50metres south of northern tar end. Ext.P2 indicates that accident has occurred within the southern half of the tar portion. Unfortunately there is no evidence in this case, oral or documentary to show the direction in which the vehicles came. The final report does not say about the direction in which the vehicles came. None of PWs.1 to 15 stated about the direction in which the vehicles came. It is true that in Ext.P2 the lie of the vehicles after the accident is stated. Jeep driven by PW.5 was seen facing towards west while the bus driven by petitioner was seen facing towards east. The lie of the vehicles after the accident by itself cannot indicate the direction in which the vehicles came. Result is that there is no evidence indicating the direction in which the vehicles came and as such it is not possible to say on whose wrong side the accident has occurred. 5. In cases involving motor accidents the mahazar for scene of accident and the sketch if any, prepared basing on such mahazar play an important role to fix the place of accident. If the Crl.R.P.No.1983 of 2009 7 accident has occurred on the wrong side of the offending vehicle that is prima facie evidence of rashness or negligence. The officer investigating the case should specifically state in the mahazar for place of accident the lie and direction of the road and specify the accident spot. The law officers conducting prosecution should bring out from the witnesses to the accident the lie and direction of the road at the place of accident and the direction in which the vehicle/vehicles involved in the accident came at the relevant time. It will be ideal if the officer who prepared or proves the mahazar speaks to the accident spot, and the lie and direction of the road at the place of accident. Even if the police officer has not specifically stated that, once the mahazar is properly proved without objection it is possible for the court to rely on the recitals in that document as to what the police officer saw at the spot of accident. The officers investigating the case, the Law Officers conducting the prosecution and the magistrates conducting the trial of the cases should alert themselves about this all important matter. Lack of alertness in the matter can lead to unmerrited acquittals in accident Crl.R.P.No.1983 of 2009 8 cases which would only help spiraling of motor accidents. In this case it is not possible to say which of the vehicles has gone over to its wrong side because the witnesses have not spoken the direction in which the vehicles came. If the jeep driven by PW.5 has gone to its wrong side and hit the bus, it is not possible to say that rashness and negligence was on the part of the petitioner. 6. It is distressing to see that all the relevant documents including wound certificates and the reports of the Motor Vehicle Inspector concerning vehicles involved are marked through the Investigating Officer. He was not competent to prove those documents. Either, those documents if not disputed by the defence should have been marked as provided under Sec.294 of the Code of criminal procedure or by examining the witnesses concerned. Prosecution has the bounden responsibility to prove that accident was not referable to mechanical defect the vehicles/vehicles involved. Defence must also get the opportunity to cross examine the witness who prepared the relevant documents and introduced into evidence for the prosecution. Mere markings of the document Crl.R.P.No.1983 of 2009 9 would not amount to proof of its contents. On going through the records and hearing learned counsel for petitioner and the learned public prosecutor I am of the view that the courts below were not correct in holding petitioner guilty of rash and negligent driving in the absence of appropriate evidence in that regard. This revision succeeds. Conviction and sentence of petitioner are set aside. He is acquitted of the charges found against him. THOMAS P JOSEPH, JUDGE Sbna/