AI Structured Summary
Not yet generated for this judgment
Judgment
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.