Aravindakshan v. The Sub Inspector of Police, Mananthavady

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY, THE 18TH DAY OF NOVEMBER 2014/27TH KARTHIKA, 1936** ## **Crl.Rev.Pet.No. 1656 of 2003 (C)** **---------------------------------** **AGAINST THE JUDGMENT IN CRL.APPEAL NO.142/2002 of ADDL. SESSIONS COURT (ADHOC), KALPETTA DATED 18-06-2003.** **AGAINST THE JUDGMENT IN CC 199/2001 of J.M.F.C.-II, MANANTHAVADY DATED 10-09-2002.** ## **REVISION PETITIONER/APPELLANT/ACCUSED :** **------------------------------------------------------------------** **ARAVINDAKSHAN, S/O PADMAVATHI, AGED 43 YEARS, THOOMBARAPPALLI VEEDU, KOTTAPPADI AMSOM, PUTHOORVAYAL.** **BY ADV. SRI.SUNNY MATHEW.** ## **RESPONDENT/RESPONDENT/COMPLAINANT :** **----------------------------------------------------------------** **THE SUB INSPECTOR OF POLICE, MANANTHAVADY, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **amk** **A.HARIPRASAD, J. -----------------------------------------------Crl.R.P No.1656 of 2003 -----------------------------------------------Dated this the 18[th] day of November, 2014.** ## **O R D E R** Concurrent findings of guilt by the courts below that the revision petitioner had committed offences under Sections 279 and 304A I.P.C is the reason for this Criminal Revision Petition. 2. Prosecution case, in brief is that on 17-01-1995 at about 4.30 p.m., the accused/revision petitioner drove bus bearing registration No. KL 12/2284 in a rash and negligent manner so as to endanger human life through Mananthavady - Panamaram public road. When the bus reached at Koyileri, it knocked down a boy aged 16 years, who was standing with a bicycle on the side of road. As a result of grievous injuries sustained in the accident, the boy was pronounced 'dead' in the hospital. At the time of trial, ten witnesses were examined and six documents were marked by the prosecution. There was no defence evidence. 3. Heard the learned counsel for the revision petitioner **Crl.R.P No.1656 of 2003 2** and the learned Public Prosecutor. 4. Learned counsel for the revision petitioner submitted that this is a case wherein no evidence adduced by the prosecution to establish the contentious issue that the revision petitioner was driving the offending vehicle at the material time. According to him, the courts below entered a moral conviction without regard to the lack of evidence in this case. It is further submitted that complete perversity in appreciation of evidence resulted in miscarriage of justice. This Court exercising its revisional jurisdictional can interfere with the concurrent findings of the trial court and the first appellate court only if it is established that the sentence or order is either illegal, incorrect or improper. 5. Ext.P1 is the first information statement (F.I.S). PW1 gave F.I.S. He narrated the incident by stating that the driver of the offending bus drove it in a rash and negligent manner and he **Crl.R.P No.1656 of 2003 3** was solely responsible for the accident. Going by the evidence adduced in this case, it is seen that the unfortunate victim of the accident was standing by the side of a public road with a bicycle. Due to excessive speed and reckless driving, the bus knocked him down causing fatal injuries. In Ext.P1, the first informant has stated that he came to know that one 'Aravindakshan' was driving the bus. But the crucial aspect is that when he was examined as PW1, he did not say that the accused in the dock was the driver at the material time. Instead, he deposed in chief examination itself that he was unaware who drove the vehicle at the material time. It is alarming to note the shabby manner of prosecution of the case that this witness was not even declared hostile and sought permission of the court for cross examination. 6. This is the case with other witnesses too examined on the side of the prosecution. Learned Public Prosecutor relied on **Crl.R.P No.1656 of 2003 4** the testimonies of PW's 7 and 8 to contend that identity of the accused was revealed through these witnesses. PW7 was possessing the bus on the basis of an agreement at the material time. According to him, he had entrusted one 'Aravindakshan' to ply the bus. There was no attempt by the prosecutor to elicit that the said Aravindakshan is the accused and he was the same person in the accused dock. In cross examination, this particular witness stated that he did not know who drove the vehicle at the time of accident. PW8 is the yet another witness, who stated that the revision petitioner used to work in the bus as driver. But this witness also did not state that the accused/revision petitioner was the driver who caused the accident. In the absence of any evidence for fixing the identity of the driver, I find it extremely difficult to agree with the courts below that he is guilty of the alleged offences. 7. This is a classic example of shabby and slipshod **Crl.R.P No.1656 of 2003 5** investigation and still more shabby and callous prosecution. The offending vehicle is a bus. The provisions in the Motor Vehicles Act and the Kerala Motor Vehicle Rules thereunder would show the mandatory requirements regarding the registers to be maintained for plying a stage carriage on the road. Rule 153A of the Kerala Motor Vehicles Rules is one of such provisions, which says that the permit holder is bound to furnish details of persons employed in its stage carriage. There are documents which can be easily found out by the Investigating Officer if he had shown some sense of responsibility and commitment. That apart, neither the Motor vehicle Inspector nor anybody connected with the regulation of motor vehicles was examined to show that the revision petitioner was the driver responsible for the accident. The perfunctory prosecution of the case before the trial court is an added misfortune. 8. This Court, speaking through Chettur Sankaran Nair, **Crl.R.P No.1656 of 2003 6** ## J., in _**Krishnankutty v. State of Kerala (1988 (1) KLT 401)**_ held as follows : _“ Moral conviction can be no proof for legal evidence. However gruesome a crime be, guilt can be found only on proof according to law. An important ingredient of an offence of this kind is the identity of the accused. Evidence should be available from the trip sheet of the vehicle, from the owner of the vehicle, if the owner himself is not the driver, and from several other circumstance. It does not take uncommon skill to unearth such material.”_ 9. Learned Public Prosecutor placed reliance on the decision of the Himachal Pradesh High Court in _**Satham Singh v. State of H.P.(2014 K.H.C 2818)**_ . Facts in the said decision is totally different from the facts in this case. On going through the facts in _**Satham's**_ case (supra), it can be seen that there was enough evidence to fix the identity of the accused who was **Crl.R.P No.1656 of 2003 7** responsible for the road accident. In this case, there is absolutely no evidence to hold so. 10. Learned Public Prosecutor further relied on a decision of the Apex Court in _**State of Punjab v. Balwinder Singh and Others ((2012)2 SCC 182),**_ wherein the Supreme Court considered the seriousness of the offence under Section 304 A I.P.C and stressed the need to give proper punishment in such cases. But the principle can be followed only if it was established in this case that the revision petitioner drove the vehicle at the time and he caused the accident. In the absence of any reliable evidence, I am of the considered view that the conviction entered by the courts below are legally unsustainable and therefore the revision petition is to be allowed to meet the ends of justice. In the result, the revision petition is allowed. Conviction of the revision petitioner/accused under Sections 279 and 304A **Crl.R.P No.1656 of 2003 8** I.P.C is set aside. The revision petitioner shall be set free forthwith, if not wanted in any other case. His bail bond shall stand cancelled. All pending interlocutory applications will stand dismissed. **Sd/-** **A.HARIPRASAD, JUDGE.** amk //True copy// P.A to Judge