Rajendran s/o Damodaran Nair v. The Sub Inspector of Police, Atholi Police Station and State of Kerala

## C R IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR FRIDAY, THE 23RD DAY OF SEPTEMBER 2016/1ST ASWINA, 1938 Crl.Rev.Pet.No. 671 of 2009 ( ) -------------------------------Crl.A 255/2007 of ADDL.DISTRICT COURT (ADHOC), KOZHIKODE CC 1138/2004 of J.M.F.C.-I,KOYILANDY REVN. PETITIONER /APPELLANT/ACCUSED.: ----------------------------------------------------------- RAJENDRAN,S/O.DAMODARAN NAIR, KALLANIKAL, CHERUKAD AMSOM, DESOM, CHERUKAD. ## BY ADV. SRI.T.G.RAJENDRAN ## RESPONDENTS/COMPLAINANT & STATE.: ------------------------------------------------------- 1. THE SUB INSPECTOR OF POLICE, ATHOLI POLICE STATION. 2. STATE OF KERALA REPRESETNED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. PUBLIC PROSECUTOR, SHRI C K PRASAD THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **C.R.** ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.R.P. No.671 of 2009 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of September 2016 ## O R D E R The petitioner was concurrently found guilty by the courts below under Sections 279 and 304A I.P.C. 2. The prosecution case is that on 26.8.2004 at 7 a.m., the revision petitioner drove a bus bearing Reg.No. KL11/R-2235 along Pavangad-Ulliyeri public road, in a rash and negligent manner so as to endanger human life and when it reached near the Police Station, Atholi, it hit against a pedestrian, Muhammed Irshad, who was walking along the western road margin and as a consequence, Crl.R.P.671/2009 **==> picture [20 x 9] intentionally omitted <==** Muhammed Irshad sustained grievous injuries and he succumbed to the injuries on 28.8.2004. 3. Before the trial court, PW1 to PW10 were examined and Exts.P1 to P11 were marked for the prosecution. No evidence was adduced from the side of the revision petitioner. 4. Heard. 5. PW2 is the only occurrence witness examined by the prosecution to prove the occurrence. PW2 stated about the incident in tune with the prosecution case. However, PW2 did not identify the driver of the vehicle. PW2 stated that he could not identify the driver who was driving the vehicle at the relevant time. However, the court below relied on Ext.P8 trip sheet to hold that the revision Crl.R.P.671/2009 : 3 : petitioner was the driver of the bus at the relevant time. 6. The learned counsel for the revision petitioner has contended that since there is no legal evidence to prove that the revision petitioner was driving the bus at the relevant time, the revision petitioner is entitled to benefit of doubt. Per contra, the learned Public Prosecutor has contended that Ext.P8 trip sheet coupled with the evidence of PW10 would prove the identity of the revision petitioner as the driver of the vehicle at the relevant time and in the said circumstances, the contention of the defence cannot be sustained. 7. The evidence on record would show that the identity of the revision petitioner could not be proved through the evidence of PW2, who was the sole eye Crl.R.P.671/2009 : 4 : witness examined in this case. Ext.P8 is a loose sheet of the trip sheet book seized by PW10 on 26.8.2004, which was heavily relied on by the court below to prove the identity of the revision petitioner. 8.Now the question to be considered is as to whether the evidence of PW10 and Ext.P8 are sufficient to prove the identity of the revision petitioner as the driver of the vehicle at the relevant time. PW10 stated that Ext.P8 was seized by him from the bus. Section 59 of the Indian Evidence Act provides that all facts, except the contents of documents may be proved by oral evidence. Section 61 of the Evidence Act provides that the contents of documents may be proved either by primary or by secondary evidence. Section 62 of the Evidence Act provides that primary Crl.R.P.671/2009 : 5 : evidence means the document itself produced for the inspection of the court. A conjoint reading of Sections 61 and 62 would make it clear that the contents of a document may be proved by the production of the document itself. 9. This court in Vijayachandran v. Superintendent of Police [2008(3) KLT 307] held that if a party seeks to prove the contents of a document, he has to produce the document itself and he cannot be permitted to give oral evidence relating to the contents of the document without producing the document because contents may be proved only by production of the documents as laid down in Sections 61 and 62 of the Evidence Act. 10. In Judah v. Isolyne Bose (AIR 1945 PC 174), a letter and two telegrams were tendered in evidence and it Crl.R.P.671/2009 : 6 : was observed that the contents of the letter and the telegram were not the evidence of the facts stated therein. The question in that case was whether the testatrix was so seriously ill as would result in impairment of her testamentary capacity. To substantiate the degree of illness, a letter and two telegrams written by a nurse were tendered in evidence. The question was whether in the absence of any independent evidence about the testamentary capacity of the testatrix, the contents of the letter could be utilised to prove want of testamentary capacity. In the said circumstances, the Privy Council observed that the fact that a letter and two telegrams were sent by itself would not prove the truth of the contents of the letter. Crl.R.P.671/2009 : 7 : 11. The Honourable Apex Court in Ramji Dayawala and sons (P) Ltd v. Invest Import (AIR 1981 SC 2085) relied on the decision on Judah (supra) and held that the mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document and if the truth of the facts stated in a document is in issue, the mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The Apex Court further held in Ramji Dayawala (supra) that the truth or otherwise of the facts or contents stated in a document would have to be proved by admissible evidence. i.e, by the evidence of those persons who can vouchsafe for the truth of the facts in issue. [See also State of Bihar v. Crl.R.P.671/2009 : 8 : Radhaa Krishna Singh [AIR 1983 SC 684], Narbada Devi Gupta v. Birendra Kumar Jaiswal and another (2003 KHC 1695: AIR 2004 SC 175), Oriental Insurance Co.Ltd. v. Premlata Shukla and others [2007 KHC 7843 : 2007(13) SCC 476], Dharmarajan and others v. Valliammal and others (2008 KHC 4395 : AIR 2008 SC 850), Madan Mohan Singh and others v. Rajni Kant and another (AIR 2010 SC 2933) and Joseph John Peter Sandy v. Veronica Thomas Rajkumar and another (AIR 2013 SC 2028 : 2013 KHC 4185)]. 12. Now coming to the case in hand, Ext.P8 had been proved by the production of the same before the court through PW10, the Investigating Officer in this case. However, proving the contents of Ext.P8 is different from Crl.R.P.671/2009 : 9 : proving the truthfulness of the contents. Even though the mere production of Ext.P8 proves its contents, it would not prove the probative value or the truth of the same. The truth of the contents in Ext.P8 could not be proved as nobody, including the conductor of the bus, who could have been in a position to vouchsafe for the truth of the facts in issue, was examined to prove the same. What is proved by the production of Ext.P8 is that there is a recital in Ext.P8 to the effect that the revision petitioner was the driver of the bus at the relevant time. However, whether the said recital in Ext.P8 was correct or not, had to be proved by examining the conductor of the bus, who was the custodian of the said document. Since the truth of the contents in Ext.P8 was not proved in accordance with law, Crl.R.P.671/2009 **==> picture [26 x 9] intentionally omitted <==** Ext.P8 cannot be taken to hold that the revision petitioner was the driver of the bus at the relevant time. 13. It is also to be noted that the trip sheet book as such was not seized by the Police. It is true that the trip sheet is a statutory document to be maintained by the conductor of the bus and when there is no conductor, it has to be kept by the driver of the bus. Rule 224 of the Kerala Motor Vehicles Rules, 1988 deals with the trip sheet, which provides that the conductor, or where there is no conductor, the driver of every public service vehicle shall maintain trip sheets in duplicate in Form “TSS” and “TSC”, as the case may be, in English or in Malayalam. It is further provided in Rule 224 of the said Rules that the Form, “TSS” or “TSC” shall be maintained in bound books each Crl.R.P.671/2009 **==> picture [25 x 9] intentionally omitted <==** containing not more than thirty-one serially numbered pages in duplicate so that each book may last for one full calendar month. It is clear from Rule 224 of the Rules that the trip sheet must be in the form of a bound book having thirty one pages serially numbered. Therefore, PW10 should have seized the trip sheet book as such and the loose page, like Ext.P8 cannot be relied on or accepted in lieu of the trip sheet book to hold that the contents therein pertains to the trip conducted by the bus on that particular day. In other words, the loose sheet of trip sheet book cannot be accepted as evidence to prove the identity of the driver. For the said reason also, Ext.P8 cannot be acted upon to prove the identity of the revision petitioner. It is also to be noted that even if the trip sheet book as provided Crl.R.P.671/2009 **==> picture [26 x 9] intentionally omitted <==** under Rule 224 of the Rules had been seized as such, then also that should have been proved by examining the conductor, who prepared the same, as the trip sheet book itself is not a substantive piece of evidence. In this case, the conductor of the bus was not examined to prove the same. However gruesome a crime be, the guilt can be found only on proof according to law. An important ingredient of the offence of this kind is the identity of the revision petitioner as the driver of the bus at the relevant time. In this case, as discussed above, there is no proof of identity from the occular witness examined by the prosecution. Ext.P8 document also cannot be accepted to prove the identity of the revision petitioner. In the said circumstances, it has to be held that the prosecution could Crl.R.P.671/2009 **==> picture [26 x 9] intentionally omitted <==** not establish the identity of the revision petitioner, which is one of the essential ingredients to convict the revision petitioner in a case like this. The above vital aspect was not considered by the courts below while appreciating the evidence. For the said reason, the conviction and sentence passed by the courts below cannot be sustained and consequently, I set aside the same. In the result, this Revision Petition stands allowed, setting aside the conviction and sentence passed by the courts below under Sections 279 and 304A I.P.C. and the revision petitioner is acquitted for the said offence. The bail bond of the revision petitioner stands cancelled and he is set at liberty. ## Sd/- ## **B.SUDHEENDRA KUMAR, JUDGE** _dl/23.9.2016_ _// True Copy //_ _PA to Judge_