ORDER
P.R. Shivakumar, J.
1. The petitioner in the criminal revision case was prosecuted before the learned Judicial Magistrate, Kothagiri in C.C. No. 109 of 2001 for the offence punishable under Sections 279 I.P.C., 304A I.P.C. (7 counts), 338 I.P.C. (7 counts) and 337 I.P.C. (3 counts), found guilty, convicted on all charges and sentenced to undergo rigorous imprisonment for a term of one year for the offence under Section 279 IPC, rigorous imprisonment for two years on each count for the offence punishable under Section 304A IPC, rigorous imprisonment for one year on each count of the offence under Section 338 IPC and rigorous imprisonment for six months on each count of the offence under Section 337 IPC. On appeal the learned Sessions Judge, Nilgiris District at Udhagamandalam confirmed the conviction for all the aforesaid offences and the sentence imposed for the offence under Section 337 I.P.C.(3 counts). However, the sentence awarded for the offence under Sections 279 I.P.C. and 338 I.P.C. (7 counts) were reduced from one year rigorous imprisonment to six months rigorous imprisonment on each count and the sentence for the offence under Section 304A I.P.C. (7 counts) was reduced from two years rigorous imprisonment to six months rigorous imprisonment on each count. As against the said judgment confirming the conviction recorded by the trial Court and the modified order of sentence passed by the learned Sessions Judge, the present revision case has been filed under Sections 397 and 401 Cr.P.C.
2. The facts leading to the filing of the criminal revision case, in brief, are as follows:
On 09.10.2001 at about 9.30 a.m. the revision petitioner drove the vehicle (lorry) bearing registration No.TDQ 9856 from Kil-Kothagiri to Bomman Estate Via Sholurmattam. The said lorry had been loaded with building materials viz. sand and bricks, to be used for the construction work of PW2 Palraj that was in progress at Bomman Estate. PW1 and several others were allowed to travel in the said lorry. PW1 was allowed to sit in the cabin and the others were allowed to sit on the sand and brick load. The said lorry had a brief stop at Sholurmattam where PW1 and others had tea in a near by shop. Thereafter, the lorry was moved by the accused/revision petitioner to proceed towards Bomman Estate. But after covering a short distance from there, the accused shouted at the passengers informing them that the vehicle was running out of control as the break system had failed and advising them to jump out and escape. Thereafter, the said lorry hit against the compound wall of St. Antony Church building and on a near by tree and then capsized. Two of the passengers died on the spot and five other passengers succumbed to the injuries either on the way to the hospital or after having been admitted in the hospital. Other passengers sustained grievous as well as simple injuries. PW1, who managed to jump out and escape with minor scratches, lodged the complaint with the police at Sholurmuttam Police Station. Based on the said complaint a case was registered on the file of Sholurmuttam Police Station, in Cr. No. 134 of 2001 for alleged offences under Sections 304A, 338 and 337 IPC. Ex. P18 is the First Information Report prepared in the printed form. PW40, the then Inspector of Police at Kothagiri, conducted investigation and filed a charge sheet alleging commission of offences by the revision petitioner/accused, punishable under Sections 279 I.P.C., 304A I.P.C. (7 counts), 337 I.P.C.(3 counts) and 338 I.P.C. (8 counts). The same was taken on file by the learned Judicial Magistrate, Kothagiri as C.C. No. 109 of 2001. Necessary charges were framed and the revision petitioner/accused pleaded not guilty. As many as 41 witnesses were examined as PW1 to PW41 and 31 documents were marked as Ex. P1 to Ex. P31. Also 7 materials objects were produced on the side of the prosecution.
3. The revision petitioner/accused was questioned under Section 313(1) Cr.P.C. regarding the incriminating materials appearing in the evidence adduced on the side of the prosecution. The revision petitioner/accused stated that such evidence appearing against him were false and once again reiterated that the accident was due to the sudden failure of break system. No witness was examined and no document was marked on the side of the revision petitioner/accused.
4. The learned Judicial Magistrate heard the arguments advanced on either side and on evaluation of the evidence in the light of the arguments advanced, held that the charges framed against the accused were proved beyond reasonable doubt, convicted the revision petitioner/accused for the said offences and imposed the sentences as indicated supra. As against the said conviction and sentence the revision petitioner/accused filed an appeal in Criminal Appeal No. 60 of 2005 before the learned Sessions Judge, Udhagamandalam. The learned Sessions Judge, Nilgiris District, Udhagamandalam, after hearing, confirmed the conviction for all the aforesaid offences and the sentence imposed for the offence under Section 337 I.P.C. (3 counts). However, the sentence awarded for the offence under Section 279 I.P.C, 304A I.P.C. (7 counts) and 338 I.P.C. (7 counts) were reduced as indicated supra. Challenging the judgment of the learned Sessions Judge confirming the conviction recorded by the learned Judicial Magistrate and the sentence awarded by the above said lower appellate Court, the present revision has been filed.
5. Arguments advanced by Mr. N. Anand Venkatesh on behalf of the petitioner and Mr. R. Munniapparaj the learned Government Advocate (Criminal Side) on behalf of the respondent-State were heard and considered by this Court. The materials available on record are also perused.
6. It is a fact not in dispute that the revision petitioner/accused was the driver in charge of the vehicle (lorry) bearing registration No. TDQ 9856 that met with an accident at Sholurmattam on 19.10.2001 at about 09.30 a.m. and that in the accident two persons died on the spot, five more persons died either on the way to the hospital or after having been admitted in the hospital, seven persons sustained grievous injuries and three persons sustained simple injuries. It is also not in dispute that the said lorry hit against the compound wall of St. Antony Church and near by tree and thereafter capsized. The evidence adduced on the prosecution side is so clear that after covering a short distance from the tea stall at Sholurmattam where the passengers were allowed to have tea, the petitioner/accused shouted at the passengers informing that the vehicle was running out of control as the break system had failed and advised them to jump out and escape. It is also not in dispute that the vehicle was running down the slope and hence in case of break failure the driver could not have had control over the vehicle.
7. On the other hand, it is the contention of the learned Government Advocate (Criminal Side) that there was no break failure as contended by the petitioner/accused; that the same was ascertained and certified by the Motor Vehicle Inspector examined as PW30 and that hence the prosecution was able to prove that the accident occurred solely due to the rash and negligent driving of the said vehicle by the petitioner herein/accused. The learned Government Advocate (Criminal Side) has also drawn the attention of this Court to the evidence of PW1 in his chief examination, wherein he had stated that the petitioner/accused drove the vehicle at a high speed with rashness and negligence and thereby caused the accident. Pointing out the above said testimony of PW1 and Ex.P4 – the certificate issued by the Motor Vehicle Inspector and the testimony of the Court Witness CW1-R.Kurunthasalam, the learned Government Advocate (Criminal Side) contended that the said evidence was more than sufficient to establish that there was no break failure and that the accident was due to human error namely, rash and negligent driving of the vehicle by the petitioner/accused.
8. The learned Counsel for the petitioner/accused contended that there were overwhelming evidence through the prosecution witnesses to the effect that the petitioner/accused, besides giving an alert call to the passengers informing them that the vehicle was running out of his control as the break system had failed, made his best efforts to bring the vehicle to a halt to minimise causalities and damage and that the finding of the Motor Vehicle Inspector to the effect that the break tubes carrying oil to the break wheels were found cut would be enough to corroborate the said evidence relied on by the petitioner/accused to show that there was a break failure due to which alone the accident occurred. It is his further contention that the learned Judicial Magistrate should not have taken the job of prosecutor by examining R. Kurunthasalam, Senior Assistant Engineer, as a Court witness (CW1) to arrive at the conclusion that break tubes carrying break oil to the break wheel would have been cut due to the impact and that hence break failure could not have been the cause of the accident. The learned Counsel for the petitioner/accused relied on the admission made by PW30, the Motor Vehicle Inspector as to how the vehicles are to be tested, to find out the effectiveness of the break system and argued that as the vehicle could not be tested on road, the Motor Vehicle Inspector should have at least entered the cabin and pressed the break pedal to see whether the break system was effective.
9. On the other hand, the learned Government Advocate (Criminal Side) representing the State very much relied on the evidence of the expert namely CW1 who would say that in case the break tube carrying oil to the end points were cut before the accident and the driver of the vehicle in an attempt to stop the vehicle applied break, the break oil could have come out and spilled on the ground and that in such circumstances, the quantity of the break oil in its tank would have reduced to some extent and the fact that the break oil in its tank was at correct level would give rise to an inference that the break tube could not have been cut before the accident.
10. No doubt the Motor Vehicle Inspector examined the vehicle and gave his report marked as Ex. P4 opining that no mechanical defect could have led to the accident in question and he also figured and deposed as PW30 in line with his opinion contained in Ex. P4. He has also asserted that the break system was in a good condition and that the accident was not due to any mechanical defect. He has also stated that he came to the conclusion that the break system was in good condition because air was full in the air tank and the break-tube connecting front axis and rear axis was found cut subsequent to the accident. The vehicle involved in the accident was admittedly, having air assisted Hydraulic break system. In the cross examination PW30 has admitted that he could not ascertain at what point of time the break tube was cut. It is also his admission that when a vehicle could not be road tested, the effectiveness of the break system can be ascertained by pressing the break pedal to find out whether the connections were intact and by checking the air tank and the break oil tank. He has also admitted that he did not enter into the cabin to test the effectiveness of the break system by pressing the break pedal and that he simply glanced at the parts of the vehicle found inside the cabin without getting into the same. The opinions of PW30 and CW1 R. Kurunthasalam are based on the fact that the air tank was full and the level of break oil in the tank meant for it was normal. It is their view that if at all the break tubes had been cut before the accident took place and the driver of the vehicle applied the break pedal, break oil would have spilled on the ground causing depletion of oil in the break oil tank. However, But whether any obstruction or disconnection was found in between the foot break pedal and the Hydraulic master cylinder has not been either ascertained or spoken to by the said witnesses. The said fact would have been ascertained provided the Motor Vehicle Inspector entered into the cabin and pressed the break pedal to see how effective the break system was. Having not done so, the Motor Vehicle Inspector has given the certificate to the effect that there was no mechanical defect which lead to the accident on the surmise that the presence of oil in its tank at appropriate level and the presence of air in the air tank at its optimum level would negative the failure of break system. This shows the total non application of mind to the fact that the break system is not totally confined to the air tank, air regulator, break oil tank, break tubes and wheel brake cylinders. Equally important are foot break pedal, break rod and the connecting cable. The effectiveness of the said parts has not been tested at all.
11. In such circumstances, the evidence of the eye witnesses become more important. Almost all the witnesses examined as eyewitnesses to the accident have clearly spoken to the effect that before the vehicle met with the accident by hitting against the church compound wall, the driver of the lorry (accused) sounded an alarm to the passengers saying that the vehicle was running out of his control as the break system had failed and from that movement the vehicle was running down the slope uncontrollably. If at all there was no defect in the break system, was the appellant/accused joking to the passengers that the lorry was running out of his control. No driver would venture to do so. None of the eyewitness examined on the side of the prosecution denied the fact that the appellant/driver was making hectic efforts, after he informed the passengers that the break system had failed, to bring the vehicle to a halt by hitting against a heavy object so as to minimise the causalities. Under such circumstances, this Court is of the considered view that both the Courts below have committed an error in coming to the conclusion that there was no failure of the break system of the vehicle and on the other hand there was rashness and negligence on the part of the appellant/accused. The courts below have completely failed to appreciate the fact that the Motor Vehicle Inspector did not get into the cabin to test the effectiveness of the break system by pressing the pedal. Had it been done, he would have either found that the there was some defect in some part of the break system or at least would have ruled out such a defect with authenticity. As it was not done, both the Courts below should have come to the conclusion that the prosecution failed to prove beyond reasonable doubt that the break system was perfectly intact and that the accident could have occurred solely due to the rash and negligent act on the part of the appellant/accused.
12. The Courts below seem to have been carried away by the fact that the accident resulted in the death of 7 persons, grievous injuries to 7 persons and simple injuries to 3 other persons. But that alone shall not be enough to arrive at a conclusion that the appellant/accused was acting with rashness and negligence in driving the vehicle. The appellant/accused was not prosecuted for overloading or transporting more number of persons in the vehicle meant for goods transportation. It is not the case of the prosecution that the overloading or transporting more number of person was the direct cause of the accident. To convict a person for the offences under Sections 279, 304A 338 and 337 IPC, the prosecution should have proved beyond reasonable doubt that such person had acted in a rash and negligent manner. In this case, the prosecution has failed to prove its case of rash or negligent driving by the petitioner/accused beyond reasonable doubt. It is also not a fit case to apply the mixim res ipso loquitor. It is not expected of the accused person to prove his case of defence beyond reasonable doubt. It shall be enough for him to show that the preponderance of probabilities make two views possible, one in favour of prosecution and the other in favour of the accused. In such cases the second view in favour of the accused should be preferred and it should be concluded that the prosecution has failed to prove the charges beyond reasonable doubt. All the points indicated supra will go to show that the prosecution has failed to establish beyond reasonable doubt that there was no mechanical defect (break failure) and that the rashness or negligence on the part of the accused was the cause of the accident.
13. For the foregoing reasons this Court comes to the conclusion that both the Courts below committed an error in coming to the conclusion that the petitioner/accused was guilty of the offences under Sections 279, 304A (7 counts) 338 (7 counts) and 337 (3 counts) IPC and the same has got to be reversed and set aside. Accordingly this Criminal Revision Case is allowed. The conviction and sentence imposed by the trial Court as modified by the lower appellate Court are set aside. The petitioner/accused is acquitted of all the offences with which he stood charged. The bail bond executed by him shall stand cancelled.