IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1983 of 2009()
1. ARAVINDAKSHAN, S/O.AYYAPPAN, AGED 42
... Petitioner
Vs
1. STATE OF KERALA BY SI OF POLICE,
... Respondent
For Petitioner :SRI.RAJESH SIVARAMANKUTTY
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :08/07/2009
O R D E R
THOMAS P JOSEPH, J
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Crl.R.P.No.1983 of 2009C
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Dated this 08th day of July 2009
ORDER
For alleged rash and negligent driving so as to endanger
human life resulting in hurt/grievous hurt to many of the
passengers in the vehicles involved, petitioner faced trial in the
court of learned Judicial First Class Magistrate-III, Palakkad for
offences punishable under Sec.279, 337 and 338 of the Penal Code
(for short, “the Code”). According to the prosecution, petitioner
was driving the offending bus from Cherupulassery to Palakkad on
13-07-04 and at 2.30 p.m when that bus reached the place of
occurrence, on account of its rash and negligent driving it hit the
jeep which came from the opposite side. The bus capsized into the
adjoining paddy field. Passengers in both the vehicles suffered
hurt/grievous hurt. Learned magistrate found petitioner guilty of
offences punishable under Sec.279,337 of the Code. He was
sentenced to undergo simple imprisonment for three months each.
He was acquitted of the charge under Sec.338 of the Code.
Crl.R.P.No.1983 of 2009 2
Learned Additional Sessions Judge who heard the appeal
confirmed conviction for offences under Sec.279 and 337 of the
Code, but modified the sentence as imprisonment for two months
each. Aggrieved, petitioner has come up in revision. It is
contended by learned counsel that there is no evidence to show that
accident was due to the rashness or negligence of petitioner. It is
also contended by learned counsel that all the relevant documents
were proved through the investigating officer and not through the
witnesses concerned.
2. Though prosecution examined PWs.1 to 15 to prove the
accident, many of them did not support it fully. They only stated
that while they were travelling in the vehicles involved the vehicles
collided causing hurt to them. They could not, or did not, identify
petitioner as driver of the offending bus. They did not also
attribute rashness or negligence on the driver of the bus. PW5,
driver of the jeep, himself an injured supported the prosecution.
He stated that petitioner was driving the offending bus at excessive
speed, that bus came from the opposite side, overtook a lorry going
Crl.R.P.No.1983 of 2009 3
ahead and hit the jeep he was driving. According to PW3, rashness
and negligence of petitioner caused the accident. PW.12,
conductor of the bus stated that petitioner was driving the bus at
the time of accident. There is sufficient evidence to show that at
the time of accident petitioner was driving the offending bus.
3. Crucial question for decision is whether prosecution has
established that accident was due to the rashness or negligence of
petitioner. ‘Rashness’ involves recklessness. It means a hasty,
impetous act without due consideration or regard for
consequences. Straight, J, said in Empress of India V Idu Beg
(ICR (1881) 3 Allahabad 776 that,
“.. I may remark that criminal rashness is
hazarding a dangerous or wanton act with
the knowledge that it is so, and that it may
cause injury, but without intention to cause
injury, or knowledge that it will probably be
caused. The criminality has in running the
risk of doing such an act with recklessness or
indifference as to the consequences. Criminal
negligence is the gross and culpable neglect or
Crl.R.P.No.1983 of 2009 4
failure to exercise that reasonable and proper
care and precaution to guard against injury either
to the public generally or to an individual in
particular, which, having regard to all the
circumstances out of which the charge has
arisen, it was the imperative duty of the
accused person to have adopted…”
Negligence in that conduct which a reasonable man placed in
similar circumstances would avoid on the ground that it involved
injury to the life and property of himself or others. It is a breach of
duty imposed by law. ‘Negligence’ in its legal acceptance includes
omissions as well as commissions. A reference to Secs. 279, 337,
338 and 304A of the Code would show that legislature was fully
aware of the distinction between “rashness” and “negligence” that
if referred to those words disjunctively making rash or negligent
act punishable. In cases involving motor accidents prosecution has
to prove rashness or negligence on the part of the driver of the
offending vehicle. It is not necessary that witnesses should say
that accident was caused due to rashness or negligence. It is not
Crl.R.P.No.1983 of 2009 5
for witnesses to decide what was the cause of the accident. That is
the responsibility of the court concerned to decide on the materials
supplied by the prosecution. What the witnesses are expected to
state is facts from which the court could come to the conclusion
that there was rashness or negligence on the part of the driver of
the offending vehicle. In this case except PW.5, none of the
prosecution witnesses referred to any fact or material from which
the court could come to the conclusion that there was rashness or
negligence on petitioner.
4. So far as evidence of PW.5 is concerned, it is true that
he stated that the bus driven by petitioner came from the opposite
side at excessive speed overtaking a lorry and hit the jeep. Ext.P2,
mahazar for scene of occurrence does not show that there was any
tyre mark at the place of the accident. It is seen from that mahazar
that both vehicles suffered serious damage on its front side
indicating that there was a forceful hit . But in deciding whether
there was rashness or negligence the place of accident plays an
important role. In Ext.P2, the mahazar lie of the road at the place
Crl.R.P.No.1983 of 2009 6
of accident is given as east-west. The tar portion has width of
8metres. Accident spot is shown as 5.50metres south of northern
tar end. Ext.P2 indicates that accident has occurred within the
southern half of the tar portion. Unfortunately there is no evidence
in this case, oral or documentary to show the direction in which the
vehicles came. The final report does not say about the direction in
which the vehicles came. None of PWs.1 to 15 stated about the
direction in which the vehicles came. It is true that in Ext.P2 the
lie of the vehicles after the accident is stated. Jeep driven by PW.5
was seen facing towards west while the bus driven by petitioner
was seen facing towards east. The lie of the vehicles after the
accident by itself cannot indicate the direction in which the
vehicles came. Result is that there is no evidence indicating the
direction in which the vehicles came and as such it is not possible
to say on whose wrong side the accident has occurred.
5. In cases involving motor accidents the mahazar for
scene of accident and the sketch if any, prepared basing on such
mahazar play an important role to fix the place of accident. If the
Crl.R.P.No.1983 of 2009 7
accident has occurred on the wrong side of the offending vehicle
that is prima facie evidence of rashness or negligence. The officer
investigating the case should specifically state in the mahazar for
place of accident the lie and direction of the road and specify the
accident spot. The law officers conducting prosecution should
bring out from the witnesses to the accident the lie and direction of
the road at the place of accident and the direction in which the
vehicle/vehicles involved in the accident came at the relevant time.
It will be ideal if the officer who prepared or proves the mahazar
speaks to the accident spot, and the lie and direction of the road at
the place of accident. Even if the police officer has not specifically
stated that, once the mahazar is properly proved without objection
it is possible for the court to rely on the recitals in that document
as to what the police officer saw at the spot of accident. The
officers investigating the case, the Law Officers conducting the
prosecution and the magistrates conducting the trial of the cases
should alert themselves about this all important matter. Lack of
alertness in the matter can lead to unmerrited acquittals in accident
Crl.R.P.No.1983 of 2009 8
cases which would only help spiraling of motor accidents. In this
case it is not possible to say which of the vehicles has gone over to
its wrong side because the witnesses have not spoken the direction
in which the vehicles came. If the jeep driven by PW.5 has gone to
its wrong side and hit the bus, it is not possible to say that rashness
and negligence was on the part of the petitioner.
6. It is distressing to see that all the relevant documents
including wound certificates and the reports of the Motor Vehicle
Inspector concerning vehicles involved are marked through the
Investigating Officer. He was not competent to prove those
documents. Either, those documents if not disputed by the defence
should have been marked as provided under Sec.294 of the Code
of criminal procedure or by examining the witnesses concerned.
Prosecution has the bounden responsibility to prove that accident
was not referable to mechanical defect the vehicles/vehicles
involved. Defence must also get the opportunity to cross examine
the witness who prepared the relevant documents and introduced
into evidence for the prosecution. Mere markings of the document
Crl.R.P.No.1983 of 2009 9
would not amount to proof of its contents. On going through the
records and hearing learned counsel for petitioner and the learned
public prosecutor I am of the view that the courts below were not
correct in holding petitioner guilty of rash and negligent driving in
the absence of appropriate evidence in that regard.
This revision succeeds. Conviction and sentence of petitioner
are set aside. He is acquitted of the charges found against him.
THOMAS P JOSEPH, JUDGE
Sbna/