Arulandam and Another vs State

T.S. Arunachalam, J.—The first petitioner was the conductor and the second petitioner was the driver of Thillai Natarajan'' bus, which was

plying between Chidambaram and Kattumannarkoil. They were tried in C.C. No. 226 of 1982, on the file of the Judicial First Class Magistrate,

Chidambaram, for an offence u/s 304-A, Indian Penal Code on the allegation that on 5.2.1982 at or about 10.15 p.m. opposite to Lalpettai High

School, while Natarajan (the deceased) was alighting from the front exit gate of the bus, the 1st petitioner gave the whistle for starting of the bus,

on which the 2nd petitioner took off the bus from the bus-stop, during the course of which the deceased, who was halfway in the process of getting

down from the bus, fell underneath, resulting in the bus running over him, leading to his death. The trial court found the petitioners guilty as charged

and sentenced each one of them to undergo rigorous imprisonment for three months and to pay a fine of Rs. 300/- each, in default to undergo

rigorous imprisonment for two more months.

Aggrieved thereby, the petitioners filed C.A No. 8 of 1984 on the file of the Additional Sessions Judge, South Arcot at Cuddalore. The

appellate court affirmed the findings of the trial Magistrate and dismissed the appeal. The correctness of the judgment of both courts below is

challenged in this revision.

Mr. R. Raghupathy, learned counsel appearing for the petitioners, contends that on the medical evidence, the conviction of the petitioners cannot

be sustained and the defence case was absolutely probabilised. Per contra, Mr. AS. Chakravarthy, learned Government Advocate, would submit

that even discarding the medical evidence, it was possible to hold that the bus must have run over the victim and in that light interference is not

needed in this revision.

I have carefully considered the rival contentions. PWs 1 and 2 are the eye-witnesses to the occurrence. PW 1 was a passenger in the bus. He

got down from the rear side of the bus, which entrance was intended for passengers getting in. The victim Natarajan was getting out of the bus

from the front entrance of the bus. According to PW 1 after he got down from the bus, the 1st petitioner whistled and the 2nd petitioner took off

the bus from the bus-stop and in that process, the victim who had not got down fully from the bus fell down and consequently was run over by the

bus. PW 2 was a passer-by and he has definitely stated in cross-examination that he was not aware as to how the victim sustained injuries. He did

not even notice whether there was any injury at all on Natarajan. He was also specific that only after hearing some noise he ran over to the scene

and found that the victim was injured. Naturally PW 2 cannot be an eye-witness to the incident. Therefore, his evidence does not help the

prosecution. If the evidence of the sole eye-witness PW 1 has to be accepted, it may be necessary on the peculiar facts of the case to seek for

some corroboration, so as to lend assurance to his version. That corroboration is not available, but on the contrary the medical evidence

completely shatters the prosecution case. Fourteen injuries were noticed by the Medical Officer, PW 3, on the victim, out of which few of them

were abrasions. Of course, the Medical Officer had noticed fracture of bones in the chest and back. But he (PW 3) has offered a definite opinion

that all the injuries were possible by the dashing of a bus. He has further stated that those injuries were possible on a man falling down and rolling

on the ground. When he was cross-examined, he affirmed with a certainty that the injuries noticed by him on the victim were not due to running

over by bus. He had also not noticed any tyre marks on the body of the deceased. Both PWs 1 and 2 admit that the bus had stopped at the

Lalpettai Bus Stop for about five minutes. They are also specific that only two passengers got down from the bus and one was PW 1 and the other

was the victim Natarajan. If the bus had stopped for about five minutes at the bus-stop, it would be unnatural to expect the victim not having

alighted within that time. PW 1 who got down from the bus through the rear entrance would not have been really in a position to notice the

incident, that too at night time and in all probability, he must have turned towards that direction only after he had heard the sound. If the medical

evidence corroborates the version of PW 1 there may be some basis to accept his evidence. In view of the contradictory nature of ocular

testimony and the medical evidence, it will not be safe to base the conviction of the petitioners on the evidence of PW 1 alone. It is not as though

the petitioners have not come out with a specific defence. It is their case that the victim had suddenly jumped out of the bus and in that process he

sustained injuries. It is also their case that as soon as they heard the noise the 2nd petitioner stopped the bus and then found the victim lying down

with injuries. Even from the prosecution case it is clear that the bus had stopped within 10 feet from the bus-stop. All these factors coupled with

the medical evidence probabilise the possibility of the victim attempting to get out of the bus, after the bus had started to move away from the bus-

stop and therefore, it is not possible to hold, on the peculiar facts and circumstances of the case, that the defence version does not project another

mode in which this incident could have taken place and more so when the medical evidence supports such a possibility.

Usually this court does not interfere on pure questions of fact, in revision. However, the exercise of revisional power cannot be barred when

miscarriage of justice is patent. The trial Magistrate, while conceding the possibility of the medical evidence supporting the defence version, held

that it supported the prosecution as well. However, the appellate judge, on pure surmises contrary to the medical evidence, has found that the

injuries must have been due to running over by the bus. The medical evidence may have to be tested as any other piece of evidence, but in cases of

this nature when the ocular evidence and the medical evidence do not tally, the courts will have to look for some circumstances to lend assurance

to the oral evidence. There are no circumstances available on record to indicate positively that the occurrence could have taken place only as put

forth by the prosecution. I am unable to find any rashness or negligence on the part of the petitioners for this inevitable accident could have

occurred as put forth by the petitioners as well. This is not a usual case of hitting of a motor vehicle, because of over-speed or otherwise where

one can safely presume rashness or negligence.

On the totality of the materials placed before this court, it will be absolutely unsafe to convict the petitioners. Therefore, they are certainly

entitled to the benefit of doubt. Hence, the convictions and sentences imposed on the petitioners are set aside and they are acquitted.

Consequently, this revision is allowed. If the fine amount has already been paid by the petitioners, the same shall be returned to the petitioners.