IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01..07..2009 CORAM THE HONOURABLE MR. JUSTICE G.RAJASURIA CRL.RC.No.173 of 2006 and Crl.M.P.No.944 of 2006 K.K.Mani .. Petitioner vs. The State rep.by the Sub Inspector of Police Thalaivasal Police Station Salem District .. Respondent Criminal Revision filed under Sections 397 and 401 of Cr.P.C., against the judgment dated 17.11.2005 passed by the learned Additional District and Sessions Judge (Fast Track Court No.I),Salem in Criminal Appeal No.58 of 2005 confirming the judgment dated 23.03.2005 passed by the learned Judicial Magistrate No.II, Attur in C.C.No.238 of 2004. For petitioner : Mr.S.Ayyathurai For Respondent : Mr.Hasan Mohammed Jinnah Additional Public Prosecutor O R D E R
Animadverting upon the judgment dated 17.11.2005 passed by the learned Additional District and Sessions Judge (Fast Track Court No.I), Salem in Criminal Appeal No.58 of 2005 confirming the judgment dated 23.03.2005 passed by the learned Judicial Magistrate No.II, Attur in C.C.No.238 of 2004, this criminal revision petition is focussed.
2. A ‘resume’ of facts, which are absolutely necessary and germane for the disposal of this Criminal Revision petition would run thus:
(i) The police laid the police report in terms of Section 173 of Cr.P.C as against the accused for the offences under Sections 279, 337 and 338 of I.P.C. Since the accused pleaded not guilty, trial was conducted.
(ii) On the side of the prosecution, P.Ws.1 to 13 were examined and Exs.P1 to P8 were marked. On defence side, no oral or documentary evidence was adduced. Ultimately, the trial court convicted the accused and imposed sentences as under:
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Offences Sentence imposed Fine amount
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(i) 279 IPC ------ Rs. 250/- (in default to undergo one month simple imprisonment) (ii) 304-A IPC Six months simple Rs. 1,000/- imprisonment (in default to undergo one month simple imprisonment) --------------------------------------------------------------------- The accused preferred appeal before the learned Additional District and Sessions Judge (Fast Track Court No.I), Salem, for nothing to be dismissed. (iii) Being aggrieved by and dissatisfied with the conviction recorded and the sentence imposed by the lower court, this revision is focussed on various grounds, the gist and kernel, the nitty gritty, the pith and marrow of them would run thus: Both the courts below committed error in appreciating the evidence. 3. Heard the learned counsel for the revision petitioner and the learned Additional Public Prosecutor.
4. At this juncture, it is just and necessary to narrate the prosecution version of the incident. As revealed by the police report, on 06.11.2003, at about 9.20 hrs (day time), the accused drove the Government transport corporation bus bearing No.TN-27-N-1302 in a rash and negligent manner along Attur – Kallakurichi Main road from west to east and dashed the cyclist Balachandran, who was at that time riding his bicycle by having his child Arutchelvan as pillion rider so as to leave him at the Tagore Matriculation Higher Secondary School, and caused grievous injuries and other injuries to Balachandran and that the said Balachandran succumbed to his injuries on 12.11.2003 at the hospital.
5. The points for consideration are as to:
(i) Whether both the courts below were perverse in finding the accused guilty of the offences with which, he was charged, without properly appreciating the oral and documentary evidence adduced before it?
(ii) Whether both the courts below were unjustified in convicting the accused in the absence of the Doctor and the Motor Vehicles Inspector having been examined in this case?
Point Nos.1 & 2:
6. Both the points are taken together for discussion as they are inter-linked and inter-woven, inter-connected and entwined with each other.
7. The learned counsel for the revision petitioner would advance and develop his argument by inviting the attention of this court to the various parts of the evidence to the effect that the police cooked up the case as against the accused purely for the purpose of enabling the legal heirs of the deceased to claim maintenance; the occurrence could not have taken place in the manner narrated by the prosecution. P.Ws.6 and 7, Palanivel and Senthilkumar were only mahazar witnesses as per police records, but they, were tutored to depose before the court as eye witnesses. PW1, the father-in-law of the deceased would depose as though the driver after the accident stopped the vehicle and got down and saw the incident, whereupon he sped away with the vehicle; whereas the other alleged witnesses would not speak in a similar manner; the deposition of the alleged eye witnesses are artificial; the non-examination of the doctor to prove the post-mortem certificate would lead to the inference that the cause of death might be due to some other factors other than the accident referred to in this case; the Motor vehicles Inspector was not examined to prove the opinion of the Motor Vehicles Inspector recorded in the report that the accident was not due to any mechanical defect in the vehicle and accordingly he prayed for setting aside the judgment of both the courts below and for acquitting the accused.
8. Whereas the learned Additional Public Prosecutor would argue that the accused was guilty of the offences with which he was charged and that no interference with the judgments of both the courts below are warranted.
9. The deceased Balachandran’s father-in-law lodged the first information report with the police, who registered the case in Crime No.662 of 2003 and investigated into the matter and ultimately laid the police report. P.Ws.1 to 5 are the eye witness to the occurrence and they, as per the findings of both the courts below cogently and convincingly, coherently and clearly, and that too, without any material contradiction narrated the incident before the court.
10. The learned counsel for the revision petitioner would submit that absolutely, there is no finding in the judgments of both the courts below that the accused drove the vehicle in a rash and negligent manner and caused the accident. It is a trite proposition of law that from the evidence available, if it is palpably and pellucidly, glaringly and clearly understandable that there involved rash and negligence on the part of the accused in driving the vehicle and thereby causing the accident, there is no embargo that the same should not be countenanced by the Court. PW1, Poomalai, the person, who lodged the first information report with the police, would in his deposition narrate the incident in support of the prosecution case and he would also state that the bus was driven by the driver speedily and he dashed it as against the said cyclist viz., Balachandran and caused the accident. However, he would add that, soon after the accident the driver stopped the bus and got down from it and thereafter he once again got into the bus and sped away with it from that place. It is also in the evidence of PW1, that from the time of accident Balachandran was in a coma stage. PW1 was cross-examined in a cryptic way and the entire cross examination of PW1 is reproduced here under for ready reference:
VERNACULAR ( TAMIL ) PORTION DELETED
(emphasis supplied)
As such, it is the defence of the accused that while the deceased Balachandran was attempting to cross the road on his cycle, he lost his balance and fell down and sustained injuries. The deposition of PW2 would detail and delineate that the deceased Balachandran was riding his bicycle by having his child as a pillion rider on it from West to East along the said Attur – Kallakurichi road by adhering to his left side; at that time, the said bus driven by the accused was proceeding in the same direction and a lorry was also proceeding in the same direction in front of the said bus; as such, the accused driver attempted to overtake the said lorry, however, he could not complete the overtaking in view of he having seen one other bus coming in the opposite direction and in that process he swerved the bus towards his left side in such a manner that the foot board of the bus dashed as against the cyclist and the accident occurred. The cumulative effect of the deposition of P.Ws.3 to 5 also would be broadly in consonance with the evidence as narrated by PW2.
11. The learned counsel for the accused would submit that the accident could not have occurred in the manner described by the witnesses for the reason that while overtaking the lorry, which was proceeding in front of the said bus, the accused must have crossed the middle of the road and on seeing one other bus coming in the opposite direction he could not have swerved so as to reach the extreme left side of the road and caused the accident and that there was no rash and negligence on the part of the driver and the witnesses also have not spoken about it. However, the arguments advanced by the learned counsel for the revision petitioner cannot be countenanced at all in view of the unrealistic approach involved in the argument. Even as per the very plea of the accused, he was rash and negligent and it is writ large.
12. It is a common or garden principle that while driving a big vehicle like that of a passenger bus, if the driver wants to overtake a lorry proceeding in front of the said bus, the driver should sound or honk the horn giving indication to the driver of the lorry to give way for him to over take. Only after getting hand signal from the lorry driver, the accused ventured to overtake the lorry. But, in this case, it is palpably clear that the driver of the bus did not choose to resort to such a method. Had he resorted to such a procedure, certainly, he would not have unsuccessfully and illegally attempted to overtake the lorry and thereafter on seeing the bus, taken such a retrograde step in swerving the vehicle towards left and in causing the accident. As such, owing to the accused driver’s rash and negligence and also carelessness in driving the bus, he attempted to overtake the lorry and thereafter, on seeing one other bus coming in the opposite direction swerved the bus towards the left and came in violent conduct with the said cyclist and caused the accident. I am at a loss to understand, if this act of the accused is not termed as “rash and negligent” then what else could be termed so.
13. Learned counsel for the accused cited the decision of Hon’ble Apex Court reported in 2001 (2) MWN (Cr.) SC 77 (Mohammed Aynuddina alias Miyam vs. State of Andhra Pradesh) to highlight that the “rash and negligence” should not be presumed. However, the said judgment, is against the accused and not in favour of the accused. An excerpt from it would run thus:
“9. A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still, a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.”
As such, it is clear that the said act of the accused as discussed supra would clearly exemplify and evince that he was rash and negligent in driving the bus and in causing the accident. No father having a child on his cycle and that too, while taking the child to the school would be rash and negligent or careless in allegedly crossing the road as suggested by the accused during cross examination of witnesses. The defence theory is totally antithetical to the preponderance of probabilities. I am fully aware of the fact that the accused is not expected to prove beyond reasonable doubt the defence plea, but once the accused comes forward to put forth a plea, certainly it is subject to comment by the prosecution as well as by the court. Here the defence theory is to the effect that the bus did not even dash the cycle or came in contact with the cycle, but the deceased of his own accord while crossing the road lost his balance and fell down and ultimately died. Such a theory is glaringly and palpably unrealistic that no one could digest it as true. No doubt, the prosecution cannot pick holes in the defence plea and try to achieve success in the litigative battle and it is the duty of the prosecution to prove the case beyond reasonable doubts. Here , in this case, P.Ws.1 to 5 as discussed supra without any embellishment narrated the incident and both the courts below accepted it and believed the version of the witnesses and recorded the conviction warranting no interference by this court.
14. The learned counsel for the accused would submit that the trial court simply assumed as though PW7 is a genuine eye witness when in fact, he was as per police records, a mahazar witness. No doubt, in para No.15 of the judgment of the lower court while describing the eye witnesses P.W.7 was also wrongly referred as one of the eye witnesses but in stricto sensu PW7 even though spoke before the court as though he had seen the incident, he was not an eye witness to the occurrence as per police records. As such the evidence of PW7 should be excluded from consideration. Merely because of that error committed by the lower court, the entire finding of the lower court cannot be looked askance at and on that ground, itself no acquittal can be passed.
15. It is a trite proposition of law that as per the Motor Vehicles Act, whenever an accident occurs involving a Motor vehicle, the driver of the said vehicle should stop the vehicle and he cannot simply go away from the place. But, in this case, the accused left the place of accident by taking the vehicle, which itself is indicative of his guilty conscience.
16. Learned counsel for the revision petitioner would cite the decision of this court reported in 2001 (2) MWN (Cr.249) (Sekar vs. State by Sub Inspector of Police, Ethapur, Salem District) in order to canvass the point, that there should be evidence to prove the rash and negligence on the part of the driver of the vehicle concerned.
17. A bare perusal of the cited decision would reveal that in that case, the court after acquitting the accused under Section 279 of IPC, however curiously, convicted the accused under Section 304 A of IPC and that was found fault with by the High court and pointed out that after acquitting the accused of the offence under section 279 IPC, the lower court should not have convicted the accused under Section 304-A of IPC. But, here the facts are entirely different as it is quite obvious from the above discussion and no more elaboration in this regard is required.
18. The learned counsel for the accused also cited the decision of the Karnataka High Court reported in 2000 Criminal Law Journal 2426 (State of Karnataka vs. Sadanand Parusharam Hosurkar), which is relating to the set of facts, where the deceased cyclist was riding the bicycle along the centre of the road and it was found fault with by the High Court. But, here the facts are entirely different as it is quite obvious from the above discussion.
19. The learned counsel for the accused also cited the decision of this court reported in 1991 LW (Cr.)232 (Chandrasekar vs. State by Inspector of Police, Dharmapuri Police Station, Dharmapuri) and pointed out that it is the duty of the prosecution to prove the case beyond reasonable doubt. An excerpt from the said decision would run thus:
“6. Both the courts below, while finding that there was no proof either of rashness or negligence on the part of the petitioner, held that the doctrine of res ipsa loquitor, could be applied to the facts of this case. The decision of the Supreme Court in Rattan Singh vs. State of Punjab was relied upon. In that case, the Apex Court held as here under:-
“In our current conditions, the law under S.304-A IPC…. must have due regard to the fatal frequency of rash driving of heavy duty vehicles and of speeding menaces. Thus viewed, it is fair to apply the rule of res ipsa loquitor, of course, with care”.
A catena of rulings on this subject positively show that the one person who could offer an explanation regarding the nature of the incident was the accused himself. The explanation of the accused could also be taken note of in the background of the prosecution evidence to find out if he had been rash or negligent while driving the lorry. Unfortunately, the petitioner had not chosen to offer any explanation when he was examined under S.313 Cr.P.C. It is also the law that if a person is driving the vehicle he is under a duty to control it. He would be prima facie guilty of negligence if the vehicle left the road and it was for the person, who was driving the vehicle, to explain the circumstances under which the vehicle had left the road. These circumstances may be beyond control of the driver and may, even exculpate him, but in the absence of such a situation the fact that the vehicle had left the road would be evidence of negligence on the part of the driver.
7. In a number of decided cases it has been held that as a rule, mere proof that an event had happened or an accident had occurred, the cause of which was unknown, was not evidence of negligence. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in clearly and unambiguously, the negligence of same body as the cause for the event or accident. It is only to such of these cases that the maxim res ipsa loquitor may apply, if the cause of the accident was unknown and no reasonable explanation as to the cause was forthcoming from the accused. Further the event or accident must be of a kind, which does not happen in the ordinary course of things, if those who have management and control, use due care. It may be in such cases that the court must be further satisfied that the event which caused the incident was within the control of the accused. The reason is not far to seek, for, he would be in a better position to explain as to how the accident had occurred.”
A bare perusal of the said judgment including the aforesaid excerpts would clearly indicate that the prosecution cannot by pleading the principle of res ipsa loquitor fob off the responsibility to prove the case on the accused. In such circumstances, this court laid down the above dictum. Here the facts as discussed supra would reveal and convey that there is overwhelming evidence to establish that the accused was rash and negligent in attempting to overtake the lorry, which was proceeding in front of him and as a sequela, he placed himself in a perilous and precarious situation and consequently, he allowed the vehicle to wobble and swerve towards the left and hit against the deceased cyclist. In such a case, the prosecution has not merely relied on the principles of res ipsa loquitor and try to fob off its responsibility on the accused but, on the other hand, the prosecution by proving its case got the onus of proof shifted to the accused to prove his plea. But curiously enough the accused had not chosen to examine himself as witness to explain the facts within his knowledge as per Section 105 of the Indian Evidence Act. No passenger of the offending bus was examined and not even the conductor of the offending bus was examined. I am fully aware of the fact that in a criminal case, the accused is not expected to examine himself as witness or examine any witness on his side. But, here, in the peculiar facts and circumstances of the case, the accused went to the extent of taking certain plea and in such a case, after the prosecution having proved the rash and negligence of the accused, failed even to prove the preponderance of probabilities of the defence plea or defence theory.
20. The learned Additional Public prosecutor cited the decision of the Honble Apex Court reported in 2007 (3) SCC 474 (Rathnashalvan vs. State of Karnataka). An excerpt from it would run thus:
“7. Section 304-A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. The provision applies only to such acts, which are rash and negligent and are directly cause of death of anoher person. Negligence and rashness are essential elements under Section 304-A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused’s conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
8. As noted above, “rashness” consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or 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.
9. The distinction has been very aptly pointed out by Holloway, J., in these words:
“Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness (luxuria). Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and that if he had he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection”.
As such, the Honble Apex Courts judgment cited supra would clearly highlight and spotlight the fact that as to what constitutes the rashness and negligence on the part of the driver while driving the vehicle. Here the witness clearly spoke about the rash and negligence of the driver in driving the bus.
21. It is a trite proposition of law that bigger the vehicle, bigger is the responsibility. Unarguably and unassailably, indubitably and incontrovertibly, the offending bus was a big passenger vehicle and while driving such a big vehicle along the public road and that too in an area, where there are educational institutions, which are explicit from the sketch itself, the accused driver should have been very careful. The very act of the accused in driving the bus and dashing from behind the cyclist, would speak volumes about the rashness and negligence in driving the vehicle.
22. The next point for consideration is as to the non- examination of the Doctor as well as the Motor Vehicles Inspector and also as to the marking of Ex.P7, the post mortem report and Ex.P8 the report of the motor vehicles inspector, through the investigating officer.
23. Learned counsel for the revision petitioner would cite the following decisions and certain excerpts from them would run thus:
(i) 1995-2-LW (Crl)493 (Chinnaian vs. State, by Inspect of Police (Rural) Vellore, N.A.A.District.
“2. The road accident had taken place on 12.5.88 at 11.00 am in Pallikonda-Vellore Road between kilometres 99/2 and 99/4. When the deceased Ramasamy was proceeding in the said road from west to east in his cycle, the bus driven by the revision petitioner from behind the cycle, dashed against the cyclist and killed him on the spot and the bus also ran amuck after the accident towards the northern side, deviating from the main road. Two witnesses viz., P.Ws.1 and 2 have spoken about the accident. Both of them have spoken that when the deceased was riding his cycle from west to east on the left-hand side of the road, the bus had hit against him. But the evidence of P.W.1 was commented very much by the learned counsel for the revision petitioner on the ground that though he was in his land close to the place of accident, he has admitted that he was cutting grass when the accident had taken place and only after hearing the noise, he turned his eyes to the direction of the accident. According to the learned counsel Mr.Gopinath, appearing for the revision petitioner, when P.W.1 admits that he happened to see the accident only after hearing the noise, he might not have seen where the cyclist was on the raod at the time of the accident, and how the bus had hit against him. This argument is acceptable in view of the fact that P.W.1 had turned his eyes to the place of the accident only after the accident had taken place. ……………………………………………………………..
…………………………………………………………………………………………………………………………………………………………………But unfortunately, from the evidence of P.W.2 alone, I am unable to hold that there was no mechanical failure in the bus. It is true that the Motor Vehicle Inspector’s report Ex.P8 has been marked in this case but the learned counsel appearing for the revision petitioner Mr.Gopinath, contended that this report of the Motor Vehicle Inspector has not been proved in the manner required by law. The author of this report, namely, the Motor Vehicles Inspector was not examined but his report has been marked through the Investigating Officer P.W.4, who has simply stated that he received the information of the Motor Vehicles Inspector. The learned counsel Mr.Gopinath argued that under Section 294 Code of Criminal Procedure, the formal proof of certain documents need not be by examining the author of the document but the prosecution ought to have filed a list of such documents calling upon the accused either to admit or deny the genuineness of such documents and only when the accused has not denied the genuineness and admitted the documents, the same could have been received in evidence without examining the witness connected with the document but in this case as this was not followed, Ex.P8 is inadmissible in evidence and the contents therein are not proved and therefore, it has to b taken and there is no evidence before the Court to hold that there was no mechanical failure in the bus. He also relies upon a decision of the Full Bench of the Allahabad High Court in Saddiq vs. State (1981 Criminal Law Journal 379) wherein the Allahabad High Court has held that a document to be received without proof of the documents, shall be mentioned in the list and the opposite party or his pleader shall be called upon to admit or deny he genuineness of such procedure and only by such process, the document can be received in evidence. In this case, the investigating officer, who is not connected with the contents of this document, has simply produced it and the same has been received though it was not objected by the accused.”
(ii) 2001 (2) MWN (Cr.) 260 (Arumugam vs. State by Sub Inspector of Police, Uttukkuli Police Station, Erode District).
“3. The learned counsel appearing for the petitioner submits that the prosecution did not succeed in establishing the cause of death, since the prosecution did not examine the doctor, who conducted the post-mortem on the body of Palanisamy, but marked the post-mortem certificate only through the investigating officer and therefore, Ex.P7 cannot be looked into as the contents are not proved. Similarly, the contents of Ex.P6, the report alleged to have been given by the Motor Vehicles Inspector were also not proved and the said document was also marked only through the investigating officer. The petitioner raised an objection at the trial state that these documents could not be marked through the investigating officer, but they have to be marked only through the persons, who prepared these documents. I see every force in the said contention. Section 294 of the Code of Criminal Procedure contemplates that where any document is filed before any court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any shall be called upon to admit or deny the genuineness of each such document. Sub Section (2) of Section 294 Cr.P.C states that the list of documents shall be in such form as may be prescribed by the State government and Sub Section (3) of Section 294 Cr.P.C contemplates that where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this code without proof of the signature of the person to whom it purports to be signed. The proviso to the said Section states that the court may, in its discretion, requires such signature to be proved. Section 294 Cr.P.C also will not help the prosecution in this case for it to contend that no formal proof is required. When the above document was marked without examining the author of the document, it was objected by the petitioner and therefore, it must be said that the documents were marked, without the consent of the petitioner. Secondly, even if a document has been marked under Section 294 Cr.P.C it must be in accordance with the procedure contemplated under the said section, viz., that the list of documents in the said form prescribed by the State Government. It is to be remembered at this stage that the Government of Tamil Nadu passed a Government Order in G.O.Ms.No.258 (Courts-V) dated 8.2.1983, prescribing the proforma stating that the documents can be marked only in the form mentioned in the Government Order. This is an admitted case where the prosecution did not mark those documents in the said form and also there was objection on the side of the accused for marking those documents. Under similar circumstances, the learned Single Judge in a judgment rendered on 13.11.1987 in Crl.R.C.No.761 of 1984 held that marking the documents in such fashion is illegal and the court cannot look into the document as the contents of the documents are not proved by the prosecution. In this case, as the prosecution did not prove the contents of Ex.P6 and Ex.P7 and therefore, they did not prove the case of death. I am of the view that the accused is entitled for an acquittal. Accordingly, he is acquitted. The bail bond, if any executed by the petitioner, will stand cancelled. The revision is allowed.”
(iii) 2001 (2) MWN (Cr.) 260 (Jerald vs. State by Inspector of Police, Kancheepuram Taluk Police Station, Kancheepuram)
“3. The learned counsel appearing for the petitioner submits that the petitioner is entitled for acquittal since the prosecution has miserably failed to prove the cause of death. Ex.P6, the post mortem certificate, was produced before the Court by the Investigating Officer and the Doctor, who conducted autopsy had not been examined and the prosecution has not given any reason for non-examination of the Doctor. According to him, the non-examination of the Doctor is fatal for the prosecution and the contents of the documents and inadmissible as they were not spoken to by the person who prepared it. I see every force in the contention of the learned counsel. The doctor, who issued the certificate, though according to the prosecution conducted autopsy, was not examined and no explanation as offered by the prosecution before the court, as to why he was not examined. This court cannot presume the cause of death as it cannot rely upon Ex.P6, as the said document was not proved in terms of the provisions of Evidence Act. As the cause of death is not proved, in my view, the petitioner, is entitled for acquittal and he is accordingly, acquitted. The revision is allowed”.
Placing reliance on the aforesaid judgments, the learned counsel for the accused/revision petitioner would develop his argument to the effect that non-examination of the Doctor as well as the Motor Vehicles Inspector to prove the contents of Ex.P7 and Ex.P8 respectively is fatal to the case of the prosecution as even though Ex.P7 and Ex.P8 were marked through the investigating officer, the contents of those documents cannot be held to have been proved.
24. Whereas the learned Additional Public Prosecutor, would cite the decision of the Full Bench judgment of the Hon’ble Allahabad High court reported in 1981 Cri.L.J.379 (Saddiq and others vs. State). An excerpt from it would run thus:
“11. In Jagdeo Singh vs. State (1979 Cri LJ 236) a Division Bench of this Court held “it was not permissible to exhibit the post-mortem report under Section 294 Cr.P.C and even if it was done the report could not be used as substantive piece of evidence until and unless the doctor concerned was examined in Court. Documents that Section 294, Cr.P.C contemplates reading in evidence upon admission about genuineness by the opposite party are only such documents which when formally proved speak for themselves. It does not refer to any document, which even if exhibited cannot be read in evidence as substantive evidence”. With great respect, we are unable to agree with the view taken by this Court in the above mentioned case. As mentioned earlier, there is no restriction placed on documents in sub-section (1) of Section 294, Cr.P.C and it applies to all documents filed by the prosecution or the accused. If the genuineness of any document filed by the prosecution or the accused under sub-section 91) of Section 294, Cr.P.C is not disputed by the opposite party sub-section (3) of Section 294, Cr.P.C is applicable and it may be read as substantive evidence. It is true that prior to the coming into force of the Code of Criminal Procedure, 1973 the post-mortem report after it was proved was not substantive evidence but only corroborated the statement of the doctor made in court and even now if the genuineness of the post-mortem report is disputed by the accused, the doctor must be examined to prove the injuries found on the body of the deceased and also the post-mortem report and the post-mortem report may only be used to corroborate or discredit his testimony which is the substantive evidence. This, however, cannot lead to the conclusion that the post-mortem report cannot be read as substantive evidence under sub-section (3) of Section 294, Cr.P.C if its genuineness is not disputed by the accused. As already mentioned, the very object of enacting Section 294 Cr.P.C would be defeated if the signature and the correctness of the contents of the post-mortem report are still required to be proved by the doctor concerned even if its genuineness is not disputed by the accused. Section 294 Cr.P.C is clear and unambiguous. It is only when the genuineness of the post-mortem report filed by the prosecution is not disputed by the accused that sub-section (3) of Section 294, Cr.P.C is applicable and the post-mortem report may be read as substantive evidence and the signature and the correctness of its contents need not be proved by the doctor concerned. We are, therefore, clearly of the opinion that if the genuineness of the post-mortem report filed by the prosecution under sub-section (1) of Section 294, Cr.P.C is not disputed by the accused, it may be read as substantive evidence under sub-sec(3) of Section 294, Cr.P.C.”
A bare perusal of the judgment of the Full Bench of the Hon’ble Allahabad High Court would reveal that in a case where there is no objection by the accused for a document such as post mortem report, the accused cannot subsequently, challenge the same on the ground of non-examination of the doctor concerned. In fact, the Full Bench, reversing the earlier judgment of the same High Court rendered the said judgment. This court in the decision reported in 1995-2-LW (Crl.)493 relied upon the Full Bench decision of the Hon’ble Allahabad High Court.
25. Learned Additional Public Prosecutor also cited the Full Bench judgment of the Hon’ble Rajasthan High Court reported in 1996, Cri.L.J, 2015 (Shabbir Mohammad vs. State of Rajasthan), which is in consonance with the Full bench judgment of the Hon’ble Allahabad High court.
26. The sum and substance of the decision cited on either side set out supra would clearly exemplify that mere marking of a document would not tantamount to proving the entire contents of the document; in the event either of the party to the criminal proceedings calling upon the other party to admit or deny the genuineness of the document and in the event of the opposite party admitting the genuineness of the document, it could be taken as substantive evidence without any further proof. However, in this case, both the documents, viz., Ex.P7, the post mortem report and Ex.P8, the report of the Motor Vehicles Inspector have been marked through the Investigation officer without any objection forthcoming from the accused side, even though the accused was defended by an Advocate. Normally, at the time of marking documents, to which the accused does not signify his consent, there should be objection and subject to objection it should be marked and while deciding the case, finally, the said objection also would be considered. At this juncture, I would like to recollect the Honble Apex courts judgment reported in AIR 2001 Supreme Court 1158 (Bipin Shantilal Panchal vs. State of Gujarat and another). An excerpt from it would run thus:
“13. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)
14. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.”
(emphasis supplied)
However, in this case, on the accused’s side, objection was not raised at the time of marking. The core question arises as to whether, such non raising of objection could be equated to admitting the genuineness of the document, within the meaning of Section 294 (1) of Cr.P.C.
27. In the Full Bench judgment of the Allahabad high Court and Rajasthan High Court, the counsel for the accused expressly had given his consent, actually, it constituted consent under Section 294 (1) of Cr.P.C. But, in this case, there is no such express consent obtained from the learned defence Advocate or the accused and in such a case, it is not permissible to hold that mere marking of document without any objection from the accused’s side would tantamount to admitting the genuineness of the document under Section 294 (1) of Cr.P.C.
28. I would like to strongly condemn the practice of the prosecuting agency in simply ignoring the significance of Section 294 of Cr.P.C. In this case, no indication is found as to why the Doctor and the Motor Vehicles Inspector were not examined on the side of the prosecution. In such a case, the prosecution agency through the investigating officer at least should have highlighted the reason for such non-examination and even that exercise was not done. Whenever a post mortem certificate or any other document is marked through the investigating officer, reason should be elicited out from the investigating officer by the prosecution agency as to why those documents are constrained to be marked through the investigating officer and not through the official/ expert witnesses concerned and the prosecuting agency and the investigating agency are duty bound to see that alternative measures of proving the post mortem reports and other documents are resorted to. But, in this case, no such steps have been taken, which shows the sheer callousness on the part of the prosecuting agency as well as the investigating agency in handling the matter and it required to be condemned in unmistakable terms. I am constrained to point out that even while recording the 161 statement, the investigating officer has not taken steps to elicit out from the Doctor, as to what type of treatment was given in this case and the investigating agency had not taken steps to place before the Court as to what treatment was given to the injured ever since he was admitted in the hospital till his death. Invariably in cases of deaths occurring after considerable days from the date of occurrence, it should be explained by the prosecution that despite proper treatment death occurred and then only the court could be made to believe that the death was due to the injury sustained at the time of occurrence only. But, in this case, such an evidence is badly missing.
29. It is not the case of the accused that the accident occurred due to mechanical defect in the vehicle. In the decision of this court reported in 1995-2-LW (Crl.)493, the learned Judge took into account the fact that the offending vehicle ran amuck and in fact it ran down the road around 30 feet northern side of the road. In such circumstances, the learned Judge of this court expected the evidence of the Motor Vehicles Inspector, which was missing in that case. But here, absolutely, there is not even any suggestion during cross examination or any statement made under Section 313 of the Code of Criminal Procedure to the effect that the accident occurred due to the mechanical defect in the bus. Hence, non-examination of the Motor Vehicle Inspector in this case is not fatal to the case of the prosecution. At this juncture, I would like to make it clear that in this case ocular evidence is clear relating to the rash and negligent act of the accused in driving the bus as held supra.
30. The learned counsel for the revision petitioner would convincingly argue that even though the accident occurred on 06.11.2003, the injured died on 12.11.2003 and absolutely, there is nothing to demonstrate that proper medical care was given and despite that the cyclist succumbed to the injuries sustained by him, at the time of the accident.
31. It is a trite proposition of law that to prove the offence under Section 304 A of IPC, there should be direct evidence that the injury sustained by the injured at the time of accident resulted in his death. In case of instantaneous death at the spot itself, this issue would not arise at all. The court in the facts and circumstances of the case could rely on the eye witnesses, that the deceased at the time of accident, sustained grievous injuries and that too in view of the fact that the grievous injuries are found set out in Ex.P7, the post mortem report also and they are extracted here under for ready reference:
“Body of male, moderately nourished. Sutured lacerated vital wound 5 cm length over (R) frontal area. SDH, SAH present over both cerebral hemisphere. Trachea, Hyoid in tact. Stomach 20 ml of greenish yellow fluid. No specific smell, muco sacorgen finger and toe, nails intact cyanosed. Small Intestine Yellowish enzyme, no specific smell, muco sacorgemed. All internal organs c/s congested. Pelvis, Spinal cord in tact
Opinion: Died of head injury”.
The description of injuries in Ex.P7, evinces and highlights that the deceased sustained grievous injury including head injury, in the accident and that clearly attracts section 338 of IPC. From the first information report as well as the deposition of the witnesses, one could clearly understand that in the accident, the deceased sustained fracture and he went into coma immediately; and in such a case, even though technically, the opinion of the doctor found spelt out in the post mortem report Ex.P7 cannot be held to have been proved, nonetheless, to the limited extent of injuries having been described therein, can be taken note of coupled with the deposition of the witnesses referred to supra who spoke about the grievous injuries sustained by the deceased.
32. At this juncture, I would like to refer to the decision of the Hon’ble Apex Court reported in AIR 1989 SC 702 (Prithvi Chand vs. State of Himachal Pradesh). An excerpt from it would run thus:
“4. ………. Section 32 of the Evidence Act provides that when a statement, written or verbal, is made by a person in the discharge of professional duty whose attendance cannot be procured without an amount of delay, the same is relevant and admissible in evidence. Besides, since the carbon copy was made by one uniform process the same was primary evidence within the meaning of Explanation 2 to Section 62 of the Evidence Act. Therefore, the medical certificate Ex.P-E was clearly admissible in evidence. That apart, there is strong, reliable and dependable evidence of the prosecution witnesses, which clearly proves that the prosecutrix was raped by the appellant.”
Following the said Hon’ble Apex Court judgment, the Hon’ble Division Bench of the Orissa High Court in the judgment reported in 2002 Crl.L.J.3701 (Kanista Barik vs. State of Orissa), held as under:
” 10. ……………….AIR 1989 SC 702: (1989 CriLJ 841) (Prithvi Chand vs. State of Himachal Pradesh), where it has been held as follows (para 4):-
“Section 32 of the Evidence Act provides that when a statement, written or verbal, is made by a person in the discharge of professional duty whose attendance cannot be procured without an amount of delay, the same is relevant and admissible in evidence.”
In the case at hand, attendance of the Medical Officer, who conducted autopsy over the dead body of the deceased and submitted Ext.17, could not be procured without an amount of delay or expense which under the circumstances of the case, appeared to the learned trial Judge unreasonable for which no illegality or irregularity has been committed by him in admitting Ext.17 into evidence under S.32 of the Indian Evidence Act. In the light of the proposition of law, the post-mortem examination report (Ext.17) cannot be brushed aside merely for the reason that the Doctor who conducted the autopsy over the dead body of the deceased has not been examined and, in that view of the matter, we are cock sure that the deceased died a homicidal death. Accordingly, we hereby affirmed that the findings of the learned trial Judge that the injuries, as per Ext.17, were ante-mortem in nature and the deceased died a homicidal death.”
A plain reading of those decisions also would support the view taken by me that for the purpose of understanding as to what are all the injuries sustained by the deceased, the recording of the injuries by the Doctor in the post mortem certificate is admissible in evidence and that too, in the wake of post-mortem certificate having been marked without any objection from the defence side. However, the opinion of the Doctor is inadmissible in evidence, in view of the said Doctor having been not examined before court or at least the portion of the opinion of the Doctor having been not proved in the way known to law as observed supra.
33. Irrespective of the accused taking any plea , it is the duty of the prosecution that the death occurred on 12.11.2003 was the direct result of the injuries sustained by the deceased and that despite proper treatment given, he succumbed to the injuries. That crucial evidence is missing in this case. Had the doctor been examined, the relevant facts would have been brought to limelight. In fact the prosecution should have produced the medical records or at least examined the Doctor who gave treatment and should have highlighted that despite proper treatment, the injured died due to the injuries sustained by him in the accident. In such circumstances, I am of the considered opinion that the prosecution miserably failed to prove the offence under Section 304 A of IPC. However, it could be held that the prosecution proved only the offence under Section 338 of IPC coupled with the one under Section 279 of IPC.
34. Accordingly, both the courts below were perverse in giving a finding that the accused committed the offence under Section 304-A IPC. As such, the judgments of both the courts below are modified only to the extent of replacing the conviction recorded under Section 304-A of IPC into one under section 338 of IPC and the conviction recorded under Section 279 IPC is confirmed.
35. Now, the question arises as to what should be the punishment.
36. Heard both sides relating to the sentence to be imposed in view of the fact that the offence is held to have been committed only under Section 338 of IPC.
37. Learned counsel for the revision petitioner would pray for releasing the revision petitioner under the provisions of Probation of Offenders Act, in view of the fact that still the accused revision petitioner is in employment and any punishment would be delirious to his employment.
38. In view of the decision of the Hon’ble Apex Court reported in AIR 2000 Supreme Court 1677 (Dalbir Singh vs. State of Haryana and others), the provisions of the Probation of Offenders Act cannot be extended to accident cases where death occurred. An excerpt from it would run thus:
“13. Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families. Criminal Courts cannot treat the nature of the offence under S.304-A, IPC as attracting the benevolent provisions of S.4 of the PO Act. While considering the quantum of sentence, to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of the vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly that even if he is convicted he would be dealt with leniently by the Court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of vehicle he cannot escape from jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles.
14. Thus, bestowing our serious consideration on the arguments addressed by the learned counsel for the appellant we express our inability to lean to the benevolent provision to S.4 of the PO Act. The appeal is accordingly dismissed.”
As such, even though in this case, for technical reasons as set out supra conviction under Section 304-A is turned out to be not sustainable and the conviction could be recorded only under Section 338 IPC, nonetheless one cannot lose sight off the fact that this is a Motor Vehicle accident case, wherein a person died.
39. In view of the fact that the accused is still in employment, I am of the view that imposing fine alone would meet the ends of justice. Accordingly, the accused is
directed to pay a sum of Rs.1,000/- (Rupees one thousand only) within one month from the date of receipt of a copy of this order for the offence committed under Section 338 of IPC, in default to undergo simple imprisonment for a period of three months. The conviction recorded under Section 279 of IPC and the sentence imposed by the trial court there under and as confirmed by the Appellate Court, shall be in tact.
vj2
To
1. The Additional District and Sessions Judge
(Fast Track Court No.I),Salem
2. The Judicial Magistrate No.II, Attur
3. The Public Prosecutor,
Madras