Venugopal v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **FRIDAY, THE 12TH DAY OF OCTOBER 2012/20TH ASWINA 1934** **Crl.Rev.Pet.No. 978 of 2006 ( )** **------------------------------CRA.245/2005 of VI ADDISTION DISTRICT & SESSIONS JUDGE, ERNAKULAM CC.325/1999 of JUDICIAL FIRST CLASS MAGISTRATE,N.PARAVUR ================** **PETITIONER/APPELLANT/ACCUSED:** **----------------------------** **VENUGOPAL, S/O.KUMARAN, ALANGAD VEED, NEAR POST OFFICE, THATHAPILLY KARA KOTTUVALLI VILLAGE.** **BY ADV. SRI.S.RAJEEV** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **---------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA (CRIME NO.121/99 OF NORTH PARAVUR).** **BY ADV. PUBLIC PROSECUTOR SMT.LEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **SD** ## **S. SIRI JAGAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl. Rev. Petition No.978 of 2006** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of October, 2012** ## **O R D E R** The petitioner is the accused in C.C. No.325/1999 before the Judicial First Class Magistrate's Court, North Paravur. He was charge sheeted for offences punishable under Sections 279, 337 and 304 (A) of the IPC. 2. The prosecution case is as follows:- On 14.04.1999 the accused drove a bus bearing registration No.KL7D/4969 in a rash and negligent manner so as to endanger human life through Paravur-Varapuzha public road in the north to south direction. When the vehicle reached the western side of Peruvaram Temple, at about 2 p.m., at the turning 7.56 metres south-east from the electric post having No.PV-73 on the northern side of the said road and 1.2 metres north-east from the telephone post having no number at the southern side of the said road, it hit a motorcycle bearing No.KL-8E/6806 ridden by the deceased, Crl. Rev. Petition No.978 of 2006 **-2-** namely Pradeepkumar, along with CW1 as a pillion rider. As a result of the hit, the deceased and CW1 fell down on the road suffering severe injuries and Pradeepkumar succumbed to the head injuries sustained by him. CW1 also sustained simple injuries in the incident. Thus the accused has committed the offences charged against him. The prosecution examined PWs 1 to 13 and marked Exts.P1 to P7. No MOs were marked. There was no defence evidence as well. 3. After considering the evidence adduced, the Magistrate convicted the petitioner and sentenced him to pay a fine of Rs.1,000/- for the offence under Section 279 with a default sentence of two months' simple imprisonment, fine of Rs.500/- for the offence under Section 337 of the IPC with a default sentence of simple imprisonment for one month and simple imprisonment for one year for the offence under Section 304 (A) of the IPC. The petitioner filed Crl. Appeal No.245/2005 before the District and Sessions Judge, Ernakulam. The Sessions Judge Crl. Rev. Petition No.978 of 2006 **-3-** dismissed the appeal confirming the conviction and sentence passed by the Magistrate. The petitioner is challenging the judgments of the courts below. 4. The petitioner raises several contentions. First is that there is no proper identification of the petitioner as the driver of the offending vehicle at the time of the accident. The so-called independent eye witnesses PWs 1 & 2 turned hostile and did not support the prosecution case claiming that they did not witness the incident as alleged by the prosecution. PW3, the conductor of the bus, also turned hostile. He admitted that he had produced the trip sheet before the police and put the signature in the mahazar prepared for seizure of the trip sheet, which mahazar was marked as Ext.P1. Although he stated that he produced the trip sheet before the police, that trip sheet was not marked in evidence. But the Magistrate relied on the trip sheet, which was not marked in evidence for coming to the conclusion that the petitioner was the driver of the offending vehicle at the time of the accident, which is Crl. Rev. Petition No.978 of 2006 **-4-** unsustainable. The petitioner points out that this aspect has been accepted by the appellate court in paragraph No.6 of the judgment. According to the counsel for the petitioner, in the absence of the trip sheet as an evidence in the case, there is no reliable evidence for identification of the petitioner as the driver of the offending vehicle at the time of the accident. It is pointed out that the only other witness who is claimed to have identified the petitioner as the driver of the offending vehicle at the time of accident is PW5, the pillion rider in the motor cycle. He admitted that he had not seen the driver before the accident and after the accident. He did not also state before the Court that the person standing in the box is the driver, who was driving the offending vehicle. The petitioner relies on the decision of this Court in **Mohammed v. State of Kerala [2002 KHC 969]** and a decision of the High Court of Andhra Pradesh in **Piginaraji Ranga Rao v. State of A.P. [2009 KHC 5762]** for the proposition that without the witness identifying the person available in the box as the Crl. Rev. Petition No.978 of 2006 **-5-** perpetrator of the crime there cannot be any proper identification and that when a witness who had no prior acquaintance with the accused and who had seen the accused for the first time for a few seconds states to the police that he can identify the accused, the investigating officer should have taken steps for holding a test identification parade, which has not been done in this case. The counsel for the petitioner therefore asserts that in this case there is no proper identification of the petitioner as the driver of the offending vehicle at the time of the accident. 5. The second contention of the petitioner is that there is no worthwhile evidence to prove that the accident occurred because of the rashness and negligence in driving the offending vehicle. He points out that the scene mahazar is not only vague, but it has also not been prepared by anybody who has actually seen the accident. The same has been marked through PW10 who admitted while giving evidence that he did not see the accident. He was only the person who took the injured to the hospital and the Crl. Rev. Petition No.978 of 2006 **-6-** motorcycle to the police station. He cannot be a competent witness to point out to the police the seen of occurrence for enabling the police to prepare the scene mahazar, is the contention raised. 6. The third contention raised is that there is nothing to show in the evidence that the bus was coming on the wrong side of the road. On the other hand, according to the learned counsel for the petitioner, there is every possibility that the motor cycle rider was driving the vehicle on the wrong side of the road. He points out that the accident occurred on a sharp curve and there is no indication anywhere in the scene mahazar to the effect that the bus was on the wrong side of the road. In fact there is no clear indication in the scene mahazar as to the exact place of accident. According to the learned counsel for the petitioner, the lower courts placed reliance on the evidence of PW5 and the scene mahazar to come to the conclusion that the accident occurred on account of the rash and negligent driving of the vehicle by the accused. He points Crl. Rev. Petition No.978 of 2006 **-7-** out that the same do not with any amount of certainty prove that the accident occurred because of the rash and negligent driving of the bus. 7. The petitioner raises another contention that, in this case, the investigating officer has not been examined as a witness, which has greatly prejudiced his defence. He points out that PW11, who was the A.S.I. of the police station, had admitted that when the pillion rider, who was examined as PW5, gave statement to the police that he had not stated that the bus came and hit the motorcycle on the wrong side of the road. On the other hand, while giving evidence, PW5 stated that he had stated so to the police. This omission could not be properly brought out in evidence in the absence of the prosecution examining the investigating officer, is the contention raised. Therefore, according to the counsel for the petitioner, the prosecution was not able to prove the guilt of the petitioner beyond a reasonable doubt. In any event, the circumstances pointed out by the petitioner are more than sufficient to give the Crl. Rev. Petition No.978 of 2006 **-8-** petitioner the benefit of doubt in the matter, is the contention raised. 8. In answer, the learned Public Prosecutor would rely heavily on the evidence of PW5. According to the learned Public Prosecutor, as the pillion rider of the motorcycle driven by the deceased, PW5 was the most competent eye witness to give evidence regarding the occurrence. He has categorically stated in his evidence that the accident occurred because of the rashness and negligence in driving the bus by the accused. As far as the trip sheet is concerned, the learned Public Prosecutor would claim that insofar as the person who had produced the trip sheet had marked the mahazar for seizure of the trip sheet that would be sufficient proof of the trip sheet itself. The Public Prosecutor argues that the evidence of CW1 read with the trip sheet abundantly identifies the petitioner as the driver of the offending vehicle at the time of the accident. Regarding the scene mahazar, the Public Prosecutor would contend that it has been prepared by a Crl. Rev. Petition No.978 of 2006 **-9-** person who was available at the scene at the time of accident and he had proved the same. According to the Public Prosecutor, going by the same, it can be seen that the accident could not have occurred but for the rash and negligent driving of the bus. The contention is that CW1's evidence together with the scene mahazar proves beyond any reasonable doubt that it was because of the rash and negligent driving of the vehicle by the petitioner that the accident occurred. 9. Regarding the non-examination of the investigating officer, it is submitted that the prosecution made all efforts to secure his presence for giving evidence. But despite proceedings having been initiated in that regard, his presence could not be secured. The Public Prosecutor argues that it was perfectly open to the petitioner to mark omissions in the statement before the police through PW11 and as such, the petitioner was not in anyway prejudiced by the non-examination of the investigating officer. Crl. Rev. Petition No.978 of 2006 **-10-** 10. I have considered the rival contentions in detail. 11. I am of opinion that this is a fit case wherein the petitioner should get the benefit of doubt on the basis of all the three points raised by the counsel for the petitioner. First of all there is no proper identification of the petitioner as the driver of the offending vehicle at the time of accident. The only person who identified the petitioner as the driver of the offending vehicle at the time of accident is the pillion rider- PW5. In **Mohammed's** case (supra), a learned Judge of this Court has held as follows: 6. Point No. 1.1 have perused the evidence of PWs 1 and 2, who alone are the witnesses to the seizure. PW 2 is actually the seizing official himself. However, neither of these witnesses has specifically identified the person in the dock in the Trial Court as the person from whom seizure was effected. Of course reference was made to the fact that the seizure was effected from the 'accused'. But then who was the particular person? Was he the person in the dock? On these aspects no sufficient light is seen in the depositions recorded. The depositions should either have included a specific endorsement by the Judge that the accused in the dock was identified by the witness or that the answer regarding identification was made pointing towards the accused in the dock or some other indication that the witness has identified the person available in the box as the perpetrator of the crime about which the witness is deposing before court. This is so because it is essential in a criminal trial, that the identity of the person who faces the trial as the perpetrator of the crime is established. For this to be achieved the witnesses Crl. Rev. Petition No.978 of 2006 **-11-** to the transaction in question should specifically certify the identity of the person in the dock as the person available at the scene of occurrence, if at all the prosecution case is that the presence of the accused at the scene of occurrence was witnessed by the particular witness. This aspect was highlighted by this Court in some earlier judgments; but notwithstanding this even special courts which try cases involving very high punishment do not appear to give sufficient attention to this important aspect. The position is hereby reiterated for strict compliance by the subordinate courts.” 12. In this case, PW5 does not specifically point to the person standing in the dock and state that the person standing in the dock was the person who was driving the vehicle at the time of accident. PW5 had not seen the petitioner before the accident. He admitted having not seen him after the accident also. In the decision in **Piginaraji Ranga Rao'** case (supra), a learned Judge of the Andhra Pradesh High Court held as follows: When a witness, who had no prior acquaintance with the accused and who had seen the accused for the first time, for a few seconds, states to the Police that he can identify the accused, the investigating officers should take steps for holding the Test Identification Parade, wherein the given case, the witnesses had considerable time and opportunity to observe the offender, the situation would be different. When the witnesses identified the accused in the Test Identification Parade and also before the Court, then there may not be any doubt to accept the evidence of such witnesses with regard to the identity of the accused and the same establishes the identity of the accused. The Crl. Rev. Petition No.978 of 2006 **-12-** primary object of holding a Test Identification Parade is to enable the witnesses to identify the persons involved in the offence, who were not previously known to them. This servers the purpose of saying the bona fides of the witnesses and when the same corroborates, the testimony in the Court, can we safely accepted. However, each case has to be decided on its own facts and circumstances. Thus, the important factor is, whether the witnesses had an opportunity to see the accused or not.” I am in full agreement with the law laid down in that judgment. Going by that law, this was a very fit case where the police should have conducted test identification parade to identify the driver of the offending vehicle at the time of the accident. Admittedly, the same has not been done. In view of the above circumstances, there is no clear unambiguous identification of the petitioner as the driver of the offending vehicle at the time of accident. 13. Secondly, I am not satisfied that there is clear evidence regarding rash and negligent driving on the part of the petitioner as a cause of the accident. PW5 would claim that the accident occurred because of the rash and negligent driving of the bus by the petitioner. But he admits that the accident occurred in the sharp curve. He Crl. Rev. Petition No.978 of 2006 **-13-** further submits that the accident occurred all of a sudden and on account of the collision he was thrown away from the motorcycle. In addition to that, in cross-examination, he admits that the riders had consumed liquor. Of course he only says that “ÎÆcÉߺîßøáKá..” He did not either say that “¾ÞX ÎÆcÉߺîßøáKá.“ or that “¾BZ ÎÆcÉߺîßøáKá“. The scene mahazar is of no help to decide the question either way. First of all, it was not prepared with the help of a person who had actually seen the accident. Secondly, it does not with any amount of certainty pin point the exact point of accident. The same also does not give any clear indication as to rashness and negligence on the driver of the bus. There is considerable doubt as to because of whose negligence the accident occurred. 14. Apart from that, the non-examination of the investigating officer is a lacuna in the prosecution evidence. It cannot be denied that the defence was denied an opportunity to cross-examine the investigating officer Crl. Rev. Petition No.978 of 2006 **-14-** regarding the omissions as between the evidence in court and the statements before the police by the witnesses. For all the above reasons, I am satisfied that this is a very fit case in which the petitioner should be given the benefit of doubt to acquit him. Accordingly, the judgments of the courts below are set aside. The petitioner is acquitted of the offences charged against him giving him the benefit of doubt. His bail bond is cancelled. The fine amount, if any, deposited by the petitioner shall be refunded to him. The Criminal Revision Petition is allowed as above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/