Varghese S/o Devassy v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 18TH JANUARY 2008 / 28TH POUSHA 1929 Crl.Rev.Pet.No. 1272 of 2004() -----------------------------CRA.490/1999 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR ST.1170/1991 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHALAKUDY .................... REVN. PETITIONER: APPELLANT/ACCUSED: ---------------------------------------------- VARGHESE, S/O. DEVASSY, MANAKKAKODI HOUSE, ALWAY VILLAGE, CHUNANGAMVELI DESOM. BY ADV. SRI.P.VIJAYA BHANU SRI.TONY MATHEW RESPONDENT: RESPONDENT/COMPLAINANT: ------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MOHAMMED. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = Crl.R.P.1272 of 2004-D = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 18[th ] day of January, 2008. O R D E R 1.The petitioner stands convicted for offences punishable under Sections 279, 337, 338 and 304 (A) of IPC. He was sentenced by the court of first instance to undergo rigorous imprisonment for different periods, the longest of which was for six months and such sentences were directed to run concurrently. Fine was also imposed, with default sentence. No separate sentence was awarded under Section 279 IPC and he was disqualified for holding any driving licence for a period of one year under Section 17 of the Motor Vehicles Act. The Court of Session confirmed the conviction and sentence in appeal. Hence, this revision. CRRP1272/2004 -: 2 :- 2.The allegation against the accused is that on 243-1990, he drove a KSRTC bus from south to north along the Ernakulam-Thrissur N.H.Road at excessive speed and in a rash and negligent manner so as to endanger human life and that at about 8.15 a.m. while he attempted to manoeuvre by overtaking a lorry which was proceeding in the same direction along the western side of that road, the bus hit against a jeep KLM-5346 which was proceeding from north to south along the eastern side of the road as a result of which, three passengers in the jeep fell down and were run over by the bus and they died. The driver of the jeep also succumbed to his injuries on his way to hospital. Another injured passenger in the jeep, died on 26-3-1990. Seven other passengers in the jeep sustained grievous injuries, of whom five were examined. - 3.The first informant P.W.1, who was cited as an occurrence witness, turned hostile to the CRRP1272/2004 -: 3 :- prosecution, though he identified the accused. P.Ws. 2 to 6 were passengers in the jeep and had sustained injuries. They were cited to prove the occurrence. P.W.7 cited, as a witness to the occurrence, was given up by the prosecution. P.Ws.8 and 11 cited as witnesses to the occurrence, were declared hostile to the prosecution. P.W.12 was also examined as a witness to the occurrence. P.W.14 is the conductor of the bus who spoke that the accused drove the bus at that point of time. P.W.20 identified the accused and was cited as a witness to the occurrence. 4.The net result of the evidence of the occurrence witnesses in the context of Ext.P17 scene mahazar is that the road (N.H.) at the scene of occurrence is a straight one along north-south, with a width of 7 meters. The jeep was proceeding from north to south and the bus driven by the accused was proceeding from south to north. The situs of impact is identified as 4.8 meters CRRP1272/2004 -: 4 :- towards east from the western extremity of the road. Obviously, this is within the eastern half of the road which has a total width of 7 meters. The case of the prosecution is that a lorry was proceeding through the western end of the road, from south to north and the bus driven by the accused was overtaking that lorry. Obviously, therefore, it is not a case where the accused was driving through the right hand side of the road leaving the left hand side for passage of other vehicles other than one which was being overtaken. The jeep was proceeding from north to south and the evidence appears to be that it was coming through the correct side. As a result of the impact, the passengers sitting in the rear portion of the jeep were thrown out through its right side and they fell on the road. One of the crucial aspects is that the scene mahazar would show that the impact was not head-on, but between the right front corner of the bus and the right front corner of the jeep. But as is apparent from the scene mahazar which is prepared at 2 CRRP1272/2004 -: 5 :- p.m. after the incident at 8.15 a.m., the jeep continued to be lying without any further identity as to whether it is within or outside the road margin. It is also nobody's case that as a result of the impact, the jeep was thrown out of the road margin. In so far as the question regarding the distance through which the bus had travelled after the impact is concerned, the testimonies of different witnesses vary between 6 feet to 15 meters. Being a National Highway and since the scene mahazar is prepared at 2 p.m., it is not the case of the prosecution or available in the depositions of the prosecution witnesses that the bus and the jeep were not moved out of the scene of occurrence, at least, to remove the bodies of the dead and also to remove those who sustained injuries in the incident. At the time of preparation of the scene mahazar at 2 p.m., the bus was parked 150 meters away from the scene of impact, while the jeep was about 100 meters towards south of the situs of impact, lying southward facing east. Under such circumstances, CRRP1272/2004 -: 6 :- while it may not be possible to accept the version of the accused in his 313 statement denying of having driven the vehicle, the materials in the case, at the best, would show only that the vehicle was driven by the accused and at the time of impact, he was attempting to overtake another heavy vehicle. In so far as the question of speed is concerned, though different versions are attempted to be given by the prosecution witnesses who were travelling in the jeep, it is quite apparent that their versions cannot be believed. The version of P.W.12 regarding excessive speed cannot be the sole material to hold that the accused had driven the vehicle in a rash and negligent manner because the mere fact that a vehicle was driven with speed is no ground to hold that there was rash and negligent driving. Though the doctrine of res ipsa loquitor may, in some cases, aid a conclusion in cases where the impact had followed driving at high speed, it is not safe to apply such a principle on the facts of the case in CRRP1272/2004 -: 7 :- hand, particularly when the impact, as already noticed, is between the right front corner of the bus and the right front corner of the jeep. Obviously, therefore, the suggestion, though made during the cross examination of the witnesses that the jeep was also overtaking yet another vehicle proceeding from north to south, cannot be ignored. 5.It has also to be noted that on the basis of the materials on record, while the accused was questioned under Section 313 Cr.P.C., no question of rash and negligent driving was put to him. All that he was questioned, regarding the ingredients of the offence, was only as to the attributions made by some witnesses that he had been driving the vehicle at a high speed. The learned counsel for the petitioner, in this context, cited the decision of the Apex Court in Kanhai Mishra v. State of Bihar [(2001) 3 SCC 451], to urge that without such an aspect being put to the accused while he was questioned under CRRP1272/2004 -: 8 :- Section 313, it is illegal to sustain the order of conviction. - 6.On the basis of the materials, there was no legal evidence to hold that the bus was driven for 150 meters after the impact and the findings to that effect by the Courts below are essentially, based on no evidence. If that be so, the conviction cannot be sustained merely because it is a case where five persons died as a result of the incident. In the absence of legal evidence to prove the allegation of rash and negligent driving to invite criminal liability, the impugned order of conviction and sentence is illegal and unsustainable. - 7.For the aforesaid reasons, the revision petitioner, accused ought to have been acquitted, at any rate, giving him the benefit of doubt. - 8.In the result, the impugned order of conviction and sentence are set aside and the revision CRRP1272/2004 -: 9 :- petition is allowed acquitting the accused. Bail bonds shall stand cancelled. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/