SALIM vs STATE OF KERALA

The revision petitioner herein challenges the conviction and sentence against him under Sections 279 and 304(A) of the Indian Penal Code in

C.C.No. 200 of 1997 of the Judicial First Class Magistrate Court-I, Chengannur. He faced prosecution in the court below on the allegation that at

about 8.45 a.m. on 28.01.1996 he drove the tempo van No.KL-4/B-302 rashly and negligently at the Kollakkadavu- Mavelikkara road junction

in such a way as to endanger human life, the vehicle hit down an old lady at the road junction due to the said rashness and negligence, and she died

within no time due to the fatal injury sustained in the accident. The Police registered the crime on the First Information Statement given by the

granddaughter of the deceased lady. After investigation, the Police submitted final report in court.

The accused appeared before the learned Magistrate, and pleaded not guilty when the substance of the accusation was read over and explained

to him. The prosecution examined 11 witnesses, and proved Exts.P1 to P8 documents in the trial court.

The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C.. He did not adduce any evidence in defence.

On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo simple imprisonment

for three months, and to pay a fine of Rs.1,000/- under Section 279 IPC, and to undergo simple imprisonment for one year, and to pay a fine of

Rs.3,000/- under Section 304(A) IPC.

Aggrieved by the judgment of conviction dated 08.12.2000, the accused approached the Court of Session, Mavelikkara, with Crl.A.No. 328

of 2000. In appeal, the learned Additional Sessions Judge-II, Mavelikkara, confirmed the conviction and sentence, and accordingly dismissed the

appeal. Now the accused has come up in revision before this Court, challenging the legality and propriety of the conviction and sentence.

On hearing both sides, and on a perusal of the materials, including the evidence given by the material witnesses examined as PW1 to PW3, I

find that there is something suspicious regarding the prosecution allegations. PW1 is the first informant, and she is the granddaughter of the

deceased. PW2 and PW3 claimed to have witnessed the accident. As regards the identity of the accused, I find that there is no consistency in

between the witnesses. PW1 stated that she identified the driver wearing a green shirt, whereas, PW2 and PW3 would say that they saw the driver

wearing a Khaki shirt. All are consistent on one aspect that the unfortunate accident occurred just when the tempo van driver took a turn at the

road junction to the southern side. He came from west to east, and at the road junction, he turned right. There the road lies north-south. Evidence

shows that the deceased lady fell at the margin of the road. PW1 stated that she fell at a gutter, but evidence shows that there is no such gutter at

the side of the road. Anyway, it is a fact proved by evidence that the deceased lady fell at the side of the road when knocked down by the tempo

van.

Nobody has got a case that the vehicle had gone off the road to the untarred portion, or that the lady was knocked down at the untarred

portion. Nobody actually explains where exactly is the spot of accident; whether it is on the tarred road, or on the untarred road. All the witnesses

have stated during cross examination that the deceased lady and PW1 had crossed the road just before she was hit down by the tempo van. It is

here the defence raised by the accused assumes importance that the unfortunate accident occurred only because the old lady and PW1 carelessly

crossed the road at the place of accident. I find some substance in the plea raised by the accused.

Though PW1 to PW3 supported the prosecution, they did not properly explain what is the rashness or negligence stated by them. PW1 stated

that her grandmother happened to be knocked down only because the accused did not properly negotiate the junction. That by itself cannot be an

act of rashness. Her evidence also shows that she and her grandmother had crossed the road at the place of accident, and just then the

grandmother was knocked down by the tempo van. As discussed above, three things are very important. One is that the accident occurred on the

tarred road, the second is that after being hit down, the lady fell at the road margin, and the third is that nobody has got a case that the vehicle had

gone off the road, or that the lady was hit down at the untarred portion of the road. All the witnesses have practically admitted that the lady had

crossed the road along with PW1 just before she was hit down by the tempo van. All these aspects taken together will lead to an inference that the

unfortunate accident probably occurred when the lady, along with PW1, carelessly crossed the road at the place of incident. This is the defence

raised by the accused also. In the absence of proper, convincing and satisfactory evidence to prove that the accident actually occurred due to the

sole rashness and negligence on the part of the driver of the vehicle, he cannot be found guilty or convicted. I find that things are suspicious. In such

a circumstance when things are doubtful, I feel it appropriate to give the benefit of this doubt to the accused. For a conviction, the evidence

adduced by the prosecution must be satisfactory and convincing, and it must prove the case beyond reasonable doubt.

In the result, this revision petition is allowed. The revision petitioner is found not guilty of the offences under Sections 279 and 304(A) IPC, and

accordingly, he is acquitted of the said offences in revision. The conviction and sentence against the revision petitioner in C.C. No. 200 of 1997 of

the trial court, confirmed in appeal by the Court of Session, Mavelikkara, in Crl.A.No. 328 of 2000, will stand set aside.