IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932 Crl.Rev.Pet.No. 1288 of 2003() ------------------------------ CC.227/1993 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR CRA.52/2000 of SESSIONS COURT, MANJERI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- C.R.GEORGE, S/O. RAPHEL, CHIRAYATH VEEDU, THRIKKUMPURAM, KOTTAPADI, GURUVAYUR. BY ADV. SRI.RAJIT SRI.RANJIT BABU RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE: ---------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.1288 OF 2003 --------------------------------------------- Dated 15th July, 2010 O R D E R Petitioner was convicted and sentenced for the offence under Sections 279, 337 and 338 of Indian Penal Code by Judicial First Class Magistrate, Tirur in C.C.227/1993. Though petitioner challenged the conviction and sentence before Sessions court, Manjeri in Crl.A.52/2000, learned Sessions Judge on re-appreciation of the evidence confirmed the conviction and sentence and dismissed the appeal. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the petitioner and learned public prosecutor were heard. Learned counsel CRRP 1288/03 2 argued that courts below did not properly appreciate the evidence and in spite of the fact that the bus driven by the petitioner capsized and defence case is that there was mechanical defect. Ext.P25 report of A.M.V.I was marked through the investigating officer, without examination of the A.M.V.I and therefore, there is no evidence to prove that there is no mechanical defect for the vehicle and as prosecution did not establish that there was no mechanical defect, the conviction is not sustainable. 3. Petitioner was driving the bus KL-8-3245 along Kottakkal-Puthenathani National Highway on 18/12/1992. Admittedly, bus was proceeding from south to north and at Athirumada the bus capsized on the western side of the road. It is also admitted case that Pws.1 to 18, 21, 27 and 31 sustained grievous CRRP 1288/03 3 hurt or hurt. Out of the prosecution witnesses, only Pws.7,22, 27 and 31 supported the prosecution case and the other witnesses including the injured turned hostile. Learned Magistrate relied on their evidence and found that incident occurred only due to the negligent driving of the bus, as it was found that there was no mechanical defect. Before the learned Sessions Judge it was argued that for the non examination of A.M.V.I Ext.P25 report should not have been relied on. Learned Sessions Judge agreed with the petitioner that without examination of A.M.V.I, Ext.P25 cannot be admitted in evidence. But learned Sessions Judge finding that petitioner has no case, at the time of the trial, including when he was questioned under Section 313 of Code of Criminal Procedure, that there was mechanical defect, held that non examination of A.M.V.I in CRRP 1288/03 4 such circumstances is not fatal as evidence of Pws.7, 22, 27 and 31 show that petitioner was driving the vehicle recklessly and in over speed. 4. The question is whether the bus capsized due to any mechanical defect or due to the negligent driving. Ext.P25 shows that A,.M.V.I on testing the bus found that there was no mechanical defect. But the question is whether without examination of A.M.V.I and without calling upon the accused to admit or deny Ext.P25 by filing a petition, as provided under Section 294 of Code of Criminal Procedure, Ext.P25 could be relied on. Learned Magistrate found that summons was served and in spite of non bailable warrant issued, witness was not made available and therefore, report was admitted in evidence. As rightly found by the learned Sessions Judge without examination CRRP 1288/03 5 of the A.M.V.I and granting opportunity to the petitioner to cross examine the A.M.V.I on the correctness of his findings in Ext.P25 report, the report cannot be relied on. That finding is correct. If that be the case, there is no evidence to prove that there was no mechanical defect to the vehicle. 5. Though learned Sessions Judge found that petitioner had no case of a mechanical defect even at that stage of his questioning by the court, the questions put to the petitioner with the answers under Section 313 of Code of Criminal Procedure proves otherwise. It is seen that there was no proper questioning under Section 313 of Code of Criminal Procedure. Even though Pws.7,22,26 and 31 had given evidence against the petitioner, which were made use of by the learned Magistrate to convict the petitioner, their evidence was not put to the CRRP 1288/03 6 petitioner specifically, when petitioner was questioned under Section 313 of Code of Criminal Procedure, which the Magistrate in law is bound to do. Only five questions were put to the accused. First question was whether accused heard the evidence tendered by the witnesses. Accused answered affirmatively. Second question was that witnesses have stated that on 18/12/1992 bus driven by the petitioner hit on a wall and capsized causing grievous hurt to the witnesses as spoken by them and whether he has got anything to say. Petitioner answered that it is not correct. Third question was it is due to your negligence the incident was caused, what have to say. The answer was it is not correct. Fourth question was whether the accused has anything more to say. Petitioner answered in the negative and then added that the accident was due to CRRP 1288/03 7 mechanical defect. Last question was whether he has any evidence, petitioner said no. 7. It is absolutely clear that evidence of Pws.7,22,27 and 31 were not put to the petitioner. Without putting those evidence tendered by said witnesses, learned Magistrate in law cannot use them against him. The Magistrate should have specifically put the evidence tendered by Pws.7,22,26 and 31 granting opportunity to the accused to explain the evidence as provided under Section 313 of Code of Criminal Procedure. It is clear that there was no proper questioning under Section 313 of Code of Criminal Procedure. Proceeding paper shows that summons was issued to A.M.V.I who was CW46 and he did not appear and non bailable warrant was issued. It is not clear whether that summons was served or not. Even though Assistant Public Prosecutor did not give CRRP 1288/03 8 up the witness, learned Magistrate of his own closed the evidence. In such circumstances, it is necessary to direct the learned Magistrate to examine the A.M.V.I (CW46) and thereafter question the petitioner properly as provided under Section 313 of Code of Criminal Procedure making it clear that evidence of Pws.7,22, 26, and 31, which are to be used as against the petitioner, shall be put to the petitioner affording an opportunity to him to explain. Conviction is therefore set aside. Revision is allowed. Conviction of the petitioner for the offences under Sections 279, 337 and 338 of Indian Penal Code in C.C.227/1993 by Judicial First Class Magistrate, Tirur as confirmed by Sessions Judge, Manjeri in Crl.A.52/2000 is set aside. C.C.227/1993 is remanded to Judicial First Class Magistrate, Tirur. Judicial First Class CRRP 1288/03 9 Magistrate, Tirur is directed to issue a non bailable warrant to CW46 and examine the witness if he is available for examination and if not, permit the prosecution to prove Ext.P25 report by other legal means and thereafter question the petitioner under Section 313 of Code of Criminal Procedure, afresh in the light of the observations made earlier and dispose the case afresh. Petitioner is directed to appear before Judicial First Class Magistrate, Tirur on 30/8/2010. Send back the lower courts records immediately. M.SASIDHARAN NAMBIAR, JUDGE. uj.