Alexander Stephen v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **THURSDAY, THE 13TH DAY OF SEPTEMBER 2012/22ND BHADRA 1934** **Crl.Rev.Pet.No. 515 of 2007 (D) ------------------------------CRA.17/2003 of SESSIONS COURT,KOLLAM CC.271/1996 of C.J.M.,KOLLAM** REVISION PETITIONER(S)/APPELLANT/ACCUSED: ---------------------------------------- ALEXANDER STEPHEN, S/O. STEPHEN, AMAL NIVAS, THEKKEVILA MUNDAKKAL, KOLLAM. BY ADV. SRI.C.RAJENDRAN RESPONDENT/RESPONDENT/COMPLAINANT: ----------------------------------STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE KOLLAM EAST POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI. BIJU MEENATTOOR - PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: acd ## **S. SIRI JAGAN, J.** ------------------------------------------- ## Crl.R.P. No.515 of 2007 ---------------------------------------------Dated this the 13[th] day of September, 2012 ## **ORDER** The accused in Calendar Case No.271/1996 before the Chief Judicial Magistrate, Kollam is the petitioner herein. The prosecution was under Sections 279 and 304 A of Indian Penal Code. The prosecution case was as follows: Petitioner, the driver of a police bus bearing registration No.KRC 4385 drove the said bus in reverse in a rash and negligent manner through the open space in between the mess hall and the barrack, within the compound of the Armed Reserve Camp situated on the southern side of N.H.47 and while so its rear side hit on one Mohan Kumar a Police Constable attached to that AR Camp at about 6.20 p.m. on 1-7-1995 and both tyres on the left side of the bus run over his body resulting in is death on the way to the District Hospital, Kollam, which death was due to the rash and negligent driving of the bus bearing registration No.KRC 4385 by the accused. He thereby committed offences Crl. R.P.No.515/07 2 punishable under Sections 279 and 304A of the Indian Penal Code. 2. The Chief Judicial Magistrate found the petitioner guilty and sentenced him to rigorous imprisonment for three months and was directed to pay a fine of Rs.1000/- (Rupees one thousand only) for the offence under Section 279 of the Indian Penal Code and rigorous imprisonment for a period of one year and fine of Rs.5,000/- (Rupees five thousand only) for the offence under Section 304A of IPC. The petitioner filed Criminal Appeal No.17/2003 before the Sessions Judge, Kollam. The Sessions Judge confirmed the conviction and sentence on the petitioner. The petitioner is challenging the judgments of the lower courts. 3. The contention of the petitioner is that there is absolutely no evidence on record to prove that the petitioner was rash and negligent in driving the bus in question. According to him, none of the three eye witnesses, who were examined for proving the guilt of the petitioner, stated that the petitioner was rash and negligent in driving the bus. The learned counsel for the petitioner submits that even going by the narration of the events by the witnesses, it cannot be Crl. R.P.No.515/07 3 found with any amount of certainty that the petitioner was guilty of rashness and negligence in driving the bus. He also points out several discrepancies in the depositions of the eye witnesses namely, PW2, PW3 and PW4, which would cast serious doubts as to whether they witnessed the incident at all. The learned counsel for the petitioner would, therefore, submit that the prosecution has palpably failed to prove the guilt of the petitioner beyond a reasonable doubt and in any event, the petitioner is eminently entitled to the benefit of doubt in view of the circumstances explained by him. 4. The learned Public Prosecutor would contend that this is an eminently fit case where the doctrine of _res ipsa loquitur_ should apply. He points out that, the incident occurred within the premises of the A.R. Camp and not in a public road. Admittedly, the bus was being driven in between buildings. The A.R. Camp houses plenty of Policemen. Therefore, naturally, any driver, who drives the vehicles inside the A.R. Camp, especially when he is reversing the vehicle should expect a policeman at any time and should drive the vehicle with the special diligence and care required of circumstances. He points out that, insofar as the space 4 Crl. R.P.No.515/07 between the buildings is very narrow, the petitioner should have exercised care and caution which he has not done and therefore, the circumstances speak for itself to the effect that the accident occurred, only because of the rash and negligent driving of the bus by petitioner. Therefore, he would argue in support of the judgments of the courts below. 5. I have considered the rival contentions in detail. 6. The prosecution sought to prove the guilt of the petitioner through three eye witnesses, PW2, PW3 and PW4. All of them are Police Constables in the A.R. Camp. All of them claimed that they had witnessed the accident. The scene of occurrence is in the space between the mess hall and the barrack. The mess hall is on the western side of the barrack. All the witnesses uniformly stated that, at the time when the accident occurred, they were standing under a mango tree on the eastern side of the barrack. In fact, the scene mahazar does not speak about any mango tree at the place of occurrence. If the witnesses were standing on the eastern side of the barrack, then their vision of the happenings on the space between the barrack and the mess hall would be obstructed by the barrack itself. As such, I wonder how these Crl. R.P.No.515/07 5 witnesses can witness the incident standing under a mango tree on the eastern side of the barrack. In fact I am left to wonder whether witnesses were deliberately stating so as to help the accused. Apart from the same, none of the eye witnesses categorically stated that the accident occurred because of the rash and negligent driving of the bus by the petitioner. In fact, their evidence is very perfunctory. One of the witnesses would say that the deceased Mohan Kumar came out of the mess hall, after the petitioner started the bus and he came under the bus behind it. One of the three eye witnesses specifically say that Mohan Kumar came suddenly out of the mess hall and came under the bus. In the decision of _**S.N. Hussain**_ v. _**State of Andhra Pradesh**_ [AIR 1972 SC 685], it has been specifically stated in paragraph 4 as follows: “............To presume negligence once an accident takes place resulting in death or injury to passengers or pedestrians is not correct in law. Not only must there be evidence of rashness or negligence acceptable to the court there must be proof that the rash or negligent act of the accused was the proximate cause of the death and that there must be a direct nexus between the death of a person and the rash or negligent act of the accused.” Therefore, it was the primary duty of the prosecution to prove that the rash and negligent act of the petitioner was the Crl. R.P.No.515/07 6 proximate cause of the death and that there must be a direct nexus between the death of a person and the rash and negligent act of the petitioner. On a reading of the depositions of the three witnesses, I could not find any such proof of rash and negligent act on the part of the petitioner as a proximate cause of the death of Mohan Kumar. Therefore, I am of opinion that the prosecution has not succeeded in proving the guilt of the petitioner beyond any reasonable doubt. In any event, I am convinced that the petitioner is entitled to the benefit of doubt. 7. In the above circumstances, the judgments of the courts below are set aside. The petitioner is acquitted of the offences charged against him in C.C.No.271/1996 of the Chief Judicial Magistrate, Kollam. His bail bond is cancelled. The Cr.R.P. is allowed as above. ## **S. SIRI JAGAN, JUDGE** acd Crl. R.P.No.515/07 7 Crl. R.P.No.515/07 8