Chacko vs State of Kerala

Justice N.K. Balakrishnan

The petitioner was concurrently held guilty of the offences under sections 279 and 304A of IPC. The petitioner was sentenced to undergo simple imprisonment for six months for the offence punishable u/s 279 of IPC and to undergo simple imprisonment for one and half years for the offence punishable u/s 304A of IPC. The incident took place on 30.4.1997 at about 9.00 a.m. The petitioner was the driver of the K.S.R.T.C. bus. It was proceeding from Edarikkode to Kozhikode, i.e., from east to west. The tar road at that place was having a width of 6.87 metres. A motor cycle, ridden by one of the deceased from west to east, was hit by the K.S.R.T.C. bus and as a result of the same the motor cyclist and pillion rider sustained fatal injuries to which they later succumbed. The prosecution contends that the bus was driven at a very high speed. The place of incident, as per the scene mahazar, was 3.32 metres to the south of the northern edge of the tar road. According to the prosecution the accident occurred solely due to the rash and negligent driving of the bus by the accused.

PWs 1 to 16 were examined and Exhibits P1 to P11 were marked. On the side of the defence, DW1 and DW2 were examined. DW2 is the accused himself. The photographs of the scene of occurrence and of the K.S.R.T.C. bus were marked as Exhibit D1 series. The learned Magistrate accepted the evidence given by PWs 1 and 2 and other circumstances to hold that the bus was driven at high speed and was driven almost along the middle portion of the tar road. The contention raised by the prosecution that the accused did not take reasonable care to avert the accident, by driving the vehicle along the southern side, was also accepted by the trial court. Hence, the petitioner was convicted and sentenced. The learned Additional Sessions Judge, after re-appraisal of the evidence, concurred with the view taken by the trial court.

The learned counsel for the revision petitioner submits that serious prejudice was caused to the defence due to the non-examination of the Investigating Officer. Though, it was stated that the Investigating Officer could not be found out to be examined, no other officer, who was competent to depose with regard to the investigation conducted by CW21, was examined. PW6- the witness examined to prove the scene mahazar did not fully support the prosecution as he only stated that he had signed the mahazar. He could not state anything about the facts noted in the mahazar. PW13 had conducted part of the investigation. He did not say anything about the scene mahazar. PW16, the other officer, who conducted the latter part of the investigation also did not say anything about the scene mahazar and as such there was practically no evidence worth convincing as to the exact place of incident, the learned counsel submits.

The learned Public Prosecutor submits that since the mahazar-Ext. P3 was marked through PW6; if there was anything to be objected or attacked by the defence that was something to be done when the accused was examined as DW2. According to the learned Public Prosecutor, the accused, who was admittedly driving the K.S.R.T.C. bus, was the best person to state as to whether the bus was proceeding along the southern side/southern half of the road and also as to the reasonable care and diligence taken by him to avert the accident but the courts below proceeded to accept the observations contained in the scene mahazar to hold that the spot of accident is 3.32 metres to the south of the northern edge of the tar road. Since that fact was not deposed to by the Investigating Officer who prepared the scene mahazar, that could not be contradicted and challenged by the defence, the learned counsel submits.

According to the learned counsel, it is the bounden duty of the prosecution to prove by a competent witness as to the exact place of incident and also as to the basis upon which the spot of accident was determined. The learned Public Prosecutor would submit that the evidence given by PWs 1 and 2 is consistent that the bus was driven at high speed and since the accused did not say that he drove the bus along the southern side of the road, the observations made in Ext. P3, the contemporaneous record prepared by the Investigating Officer, should be given due weight.

PWs 1 and 2 did not say that the bus was driven along the middle portion of the road or that there was sufficient space on the left side of the bus so as to take the bus along the left side nor was it stated that it was because the bus was driven almost along the middle line, it happened to hit the motor cycle. According to the learned counsel, it is of paramount importance because DW1- an independent witness and DW2- the accused himself swore before court that the incident happened because the motor cyclist overtook the mini lorry and it was in that process it hit the K.S.R.T.C. bus. The defence witness also should be treated at par with the prosecution witness and simply because DWs1 and 2 were examined on the side of the accused, their evidence cannot be brushed aside as unworthy of acceptance, the learned counsel submits.

All these arguments could have been avoided if the learned Prosecutor, who conducted the case before the trial court, had examined the Investigating Officer or any other Police officer who was competent to speak regarding the scene mahazar, as to how the spot of accident was fixed and also as to whether the Investigating Officer had seen the tyre marks indicating the application of brake and also as to the distance from the spot of accident to the place where the bus was halted or stopped. These aspects would have been of better help to the Court to arrive at a proper finding. Since that police officer was not examined it is not possible for the court to accept the contents of the scene mahazar to fix the criminal liability of the petitioner, the learned counsel submits. There is merit in that submission. But at the same time the contention that since the Investigating Officer was not examined, the verdict of conviction has to be set aside cannot be sustained. The evidence given by PWs 1 and 2 may be of help to the prosecution to prove the rashness or negligence attributed against the petitioner. Since the Investigating Officer or any other police officer competent to speak regarding the scene mahazar was not examined, I find that opportunity has to be given to the prosecution and to the defence to elicit the points required for the proper adjudication of the case. In the result, this Criminal Revision Petition is disposed of as stated below:

Conviction and sentence passed against the petitioner are set aside. The case is remanded to the learned Magistrate so as to enable the prosecution to examine the Investigating Officer or any other police officer competent to speak regarding the same. The accused is also given opportunity to adduce further evidence in the matter. The learned Magistrate will dispose of the case at the earliest, at least, within three months from the date posted for appearance. The accused will appear before the learned Magistrate on 03.12.2012.