THAIVALAPPIL SURESHAN S/. KRISHNAN Vs STATE (S.I.OF POLICE,EDAKAD)

The revision petitioner herein challenges the

conviction and sentence against him under Sections 279

and 304-A I.P.C in C.C 123/1993 of the Additional Chief

Judicial Magistrate Court, Thalassery. He faced prosecution

on the allegation that at about 9.30 a.m on 7.1.1993, he

drove the Bus No.KRN-3639 rashly and negligently so as to

endanger human life along the Kannur-Thalassery Public

Road at Muzhappilangad, as a result of which, it hit down a

boy standing at the side of the road waiting for his

autorickshaw to go to school, and at the spot of accident

itself, the boy died due to the injuries sustained.

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 thirteen witnesses in the trial court

and proved Exts.P1 to P8 documents. When examined

under Section 313 Cr.P.C, the accused denied the

incriminating circumstances and projected a defence that

the unfortunate accident in fact occurred when the small

boy carelessly crossed the road at the place of accident. He

did not adduce any evidence in defence.

On an appreciation of the evidence, the learned

Magistrate found the accused guilty. On conviction he was

sentenced to undergo simple imprisonment for two months,

and to pay a fine of 1000/- under Section 279 I.P.C, and to

undergo simple imprisonment for three months and to pay a

fine of 3000/- under Section 304-A I.P.C. Aggrieved by the

judgment of conviction, the accused approached the Court

of Session, Thalassery with Crl.A 240/1996. In appeal, the

learned Additional Session Judge (Adhoc-I), Thalassery

confirmed the conviction and sentence, and accordingly

dismissed the appeal by judgment dated 24.9.2002.

The contention raised by the revision petitioner is

that there is no legal evidence to convict him, and that

without proper and legal evidence proving the offences

beyond reasonable doubt, the courts below wrongly

convicted him. Of the 13 witnesses examined in the trial

court, PW1 to PW3 are the material witnesses. Of them,

PW2 turned hostile. PW1 and PW3 gave evidence on the

factual aspects. PW1 is an autorickshaw driver. His case is

that the bus happened to hit down the boy when the bus

driver rashly overtook his autorickshaw. However, in cross-

examination, he stated that he had not actually seen the

driver of the bus, and when the defence made a suggestion

that the accident occurred when the boy carelessly crossed

the road, he could not deny the suggestion. He said that he

cannot definitely say whether the boy had crossed the road

or not. PW3 ,the other eye-witness also could not identify

the driver of the vehicle involved. In examination-in-chief,

he stated that the accident occurred due to the rash and

negligent driving of the bus driver. But his cross-

examination shows that he could not definitely say whether

the boy had crossed the road. Regarding the identity of the

bus driver also, he stated that he had not clearly seen the

driver. PW3 admitted that the exact spot of accident is on

the tarred road and not on the un-tarred portion.

It was submitted by the learned counsel that

failure on the part of the Police Officer to prepare a scene

mahazar is fatal to the prosecution case. Though there is no

specific scene mahazar, the description of the scene of the

incident is very much there as part of the inquest report.

This report shows that the exact spot of accident is 1.5

metres to the tarred road from the eastern road margin. The

witnesses are consistent that the boy was standing at the

eastern side of the road, and there is reason to believe that

he was about to cross the road at that time. The fact that

the body of the boy was seen lying on the tarred road, 1.5

metres from the road margin gives a probability in the

defence case that the accident occurred when the boy

crossed the road. When such a suspicion is there, it would

be inappropriate and unjust to convict the accused under

Section 304-A I.P.C.

PW1 and PW3 are not definite regarding the

identity of the bus driver. When cross-examined by the

defence, they practically admitted the defence version that

the accident probably occurred when the boy crossed the

road. In the absence of proper and satisfactory evidence

proving that the accused was in fact the driver of the vehicle

at that time, or that the accident occurred solely due to his

rashness and negligence, the conviction under Section 304A

I.P.C cannot be sustained.

In the result, this revision petition is allowed. The

revision petitioner is found not guilty of the offence alleged

against him under Sections 279 and 304-A I.P.C Act, and he

is acquitted of these offences in revision. Accordingly, the

conviction and sentence against him in CC 123/1993 of the

court below and confirmed in appeal will stand set aside

and the revision petitioner will stand released from

prosecution.