Chinnaian vs State, by Inspector of Police (Rural) Vellore, N.A.A. District

Rengasamy, J.—This revision is against the conviction and sentence imposed by the learned II Additional Sessions Judge, North Arcot

Ambedkar District at Vellore in C.A.No.206/91 confirming the order of conviction passed by the learned Judicial Magistrate No. 5, Vellore, in

C.C. No. 198/88 for the offence u/s 304-A Indian Penal Code to pay a fine of Rs.3,000 and in default to undergo simple imprisonment for six

months.

The road accident had taken place on 12.5.88 at 11.00 am in Pallikonda-Vellore Road between Kilometres 99/2 and 99/4. When the

deceased Ramasamy was proceeding in the said road from west to east in his cycle, the bus driven by the revision petitioner from behind the cycle,

dashed against the cyclist and killed him on the spot and the bus also ran amuck after the accident towards the northern side, deviating from the

main road. Two witnesses viz. P.Ws.1 and 2 have spoken about the accident. Both of them have spoken that when the deceased was riding his

cycle from west to east on the left-hand side of the road, the bus had hit against him. But the evidence of P.W. I was commented very much by the

Learned Counsel for the revision petitioner on the ground that though he was in his land close to the place of accident, he has admitted that he was

cutting grass when the accident had taken place and only after hearing the noise, he turned his eyes to the direction of the accident. According to

the Learned Counsel Mr. Gopinath, appearing for the revision petitioner, when P.W. I admits that he happened to see the accident only after

hearing the noise, he might not have seen where the cyclist was on the road at the time of the accident, and how the bus had hit against him. This

argument is acceptable in view of the fact that P.W. I had turned his eyes to the place of the accident only after the accident had taken place. But

the evidence of P.W. 2 cannot be in any way discredited. P.W. 2 was driving his bullock cart near the place of accident in the same direction in the

same road and according to him only few minutes before the occurrence, while overtaking his bullock-cart, the deceased talked to him as they are

known to each other,- and when the deceased was going ahead about 20'' away on the mud portion of the road, the bus which was proceeding

behind him, hit against the cyclist as the bus gave way for a lorry which came from the opposite direction. It appears that the coming of the lorry

from the opposite direction is not stated in his Section 161 statement. But he has affirmed that the deceased was on the mud portion of the road

when he was hit by the bus. This evidence of P.W. 2 is corroborated by the photographs taken in the place of accident. The photo shows that the

cycle of the deceased is lying partly in the mud portion and partly in the that portion. If really the deceased was in the road in the central portion of

the road or on the wrong side, the cycle cannot be found partly on the mud portion of the road on the northern side. The driver of the bus had lost

control of the bus and it ran down from the road about 30'' northern side of the road. Therefore, it is very clear that the deceased had been on his

proper side, that is on the mud portion on the northern side of the road but somehow the bus had hit against the cyclist and had also run away

deviating from the road. But unfortunately from the evidence of P.W. 2 alone, I am unable to hold that there was no mechanical failure in the bus. It

is true that the Motor Vehicle Inspector''s Report Ex. P-8 has been marked in this case but the Learned Counsel appearing for the revision

petitioner Mr. Gopinath, contended that this report of the Motor Vehicle''s Inspector has not been proved in the manner required by law. The

author of this report, namely, the Motor Vehicles Inspector was not examined but his report has been marked through the Investigating Officer

P.W. 4, who has simply stated that he received the information of the Motor Vehicles Inspector. The Learned Counsel Mr. Gopinath argued that

u/s 294 Code of Criminal Procedure, the formal proof of certain documents need not be by examining the author of the document but the

prosecution ought to have filed a list of such documents calling upon the accused either to admit or deny the genuineness of such documents and

only when the accused has not denied the genuineness and admitted the documents, the same could have been received in evidence without

examining the witness connected with the document but in this case as this was not followed, Ex. P-8 is inadmissible in evidence and the contents

therein are not proved and therefore, it has to be taken that there is no evidence before the Court to hold that there was no mechanical failure in the

bus. He also relies upon a decision of the Full Bench of the Allahabad High Court in Saddiq v. State (1981 CLJ 379) wherein the Allahabad High

Court has held that a document to be received without proof of the documents, shall be mentioned in the list and the opposite party or his pleader

shall be called upon to admit or deny the genuineness of such document u/s 294 Code of Criminal Procedure and only by such process, the

document can be received in evidence. In this case, this procedure was not followed and P.W. 4, the investigating Officer, who is not connected

with the contents of this document, has simply produced it and the same has been received though it was not objected by the accused.

The learned Government Advocate (Criminal side) contended that the accused did not object at the time of marking Ex. P-8 that it is not

admissible in evidence and neither in the trial court nor in the Appellate Court, the evidentiary value of Ex. P-8 was not argued and therefore, at

this stage, the revision petitioner is not entitled to urge this point in the revisional Court. For the reason that the accused did not object for marking

the document, it cannot be argued that an inadmissible document can be admitted in evidence without being proved in the manner known to law.

As Section 294 of Code of Criminal procedure prescribes the mode by which the document can be received in evidence without examining the

witness, unless this provision was complied with, the document, received, even if there was no objection from the side of the accused, it has to be

held that the marking of the document in evidence is contrary to law and this question of law can be raised at any time, even if it was not raised in

the trial court or appellate court. As Ex. P-8 is not proved, there is no evidence before the Court to accept that the vehicle had no mechanical

defect at the time of accident. When such proof is wanting in this case, even though the evidence of P.W. 2 is acceptable, the accused cannot be

found guilty to convict him for the offence u/s 304-A Indian Penal Code. Therefore, the revision has to be allowed.

In the result, setting aside the order of conviction, the revision petitioner is acquitted.