Kerala High Court

Saji Kumar vs State Of Kerala on 19 February, 2025

                                                  2025:KER:13529

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.

   WEDNESDAY, THE 19TH DAY OF FEBRUARY 2025 / 30TH MAGHA, 1946

                  CRL.REV.PET NO. 1083 OF 2015

         CC NO.106 OF 2008 OF JUDICIAL FIRST CLASS MAGISTRATE

                       COURT, KOLENCHERRY

        Crl.A NO.472 OF 2013 OF ADDITIONAL DISTRICT AND SESSIONS

                       COURT, MUVATTUPUZHA


REVISION PETITIONER/APPELLANT/ACCUSED:

          SAJI KUMAR,
          S/O.BALAKRISHNAN, KURUPALAKKAL VEEDU, KALLOORKADU
          KARA, KALLOORKADU VILLAGE, MUVATTUPUZHA.


          BY ADV SRI.ALEXANDER JOSEPH


RESPONDENTS/RESPONDENTS/COMPLAINANT:

    1     STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA, ERNAKULAM.

    2     SUB INSPECTOR OF POLICE
          PUTHENCRUZ POLICE STATION,
          ERNAKULAM DISTRICT-683102.



OTHER PRESENT:

          ADV.SMT.MAYA M.N-PUBLIC PROSECUTOR


     THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
07.02.2025, THE COURT ON 19.02.2025 DELIVERED THE FOLLOWING:
                                                    2025:KER:13529
Crl.R.P.No.1083 of 2015         2


                             ORDER

The revision petitioner is the accused in

C.C.No.106 of 2008 on the file of the Court of

Judicial First Class Magistrate, Kolencherry, who

was convicted and sentenced for the offences under

Sections 279, 337, 338, 304A of IPC and Section 66(1)

r/w Section 192 and Section 3(1) r/w Section 181 of

MV Act, as per the judgment dated 02.09.2013. The

appeal filed by the revision petitioner against the

said judgment of conviction and sentence was

dismissed by the Sessions Court, Muvattupuzha,

confirming the judgment of the trial court, as per

the judgment dated 19.06.2015 in Crl.Appeal No.472

of 2013. Being aggrieved, the revision petitioner is

now before this Court.

2. The prosecution case is that the accused who

had no valid driving licence to drive a transport

vehicle, on 28.10.2007 at about 9.40 p.m., drove a

bus bearing registration No.KL-17/D 2646 through 2025:KER:13529

Ernakulam-Muvattupuzha National Highway, from west

to east, in a rash and negligent manner and dashed

on a motorcycle bearing registration No.KL-6/C 3338

which was coming from the opposite direction. As a

result of the accident, the rider of the motorcycle

sustained fatal injuries and he succumbed to those

injuries on the way to the hospital. PW2 to PW8 who

were the passengers in the bus also sustained minor

injuries in the accident. The bus had no permit to

ply through the Ernakulam-Muvattupuzha National

Highway.

3. On the basis of the First Information

Statement of PW1, the FIR was registered at

Puthencruz Police Station as crime No.611 of 2007 by

PW14-Sub Inspector of Police. On completion of the

investigation, he filed the final report for the

offences punishable under Sections 279, 337, 338,

304A of IPC, Section 66 r/w Section 192, and Section

3(1) r/w Section 181 of MV Act against the accused.

2025:KER:13529

On appearance of the accused, he was served with

copies of all prosecution records by the learned

Magistrate as provided under Section 207 of Cr.P.C.

When particulars of the offences were read over to

the accused, he pleaded not guilty.

4. From the side of the prosecution, PW1 to

PW14 were examined and Exts.P1 to P22 documents were

marked. The accused was then examined under Section

313 Cr.P.C and he denied all the incriminating

circumstances brought out in the prosecution

evidence. No defence evidence was adduced from the

side of the accused. After hearing both sides, the

learned Magistrate found the accused guilty of all

the offences and sentenced him to undergo simple

imprisonment for six months for each of the offences

under Sections 279 and 337 of IPC, to undergo simple

imprisonment for one year for each of the offences

under Sections 338 and 304A of IPC and to undergo

simple imprisonment for three months and to pay a 2025:KER:13529

fine of Rs.5,000/- and in default, to undergo simple

imprisonment for two months for each of the offences

under Sections 181 and 192 of MV Act. All the

sentences were directed to be undergone

concurrently.

5. Being aggrieved, the accused filed

Crl.A.No.472 of 2013 before the Sessions Division,

Muvattupuzha and as per the impugned judgment dated

19.06.2015, the Additional District and Sessions

Judge, Muvattupuzha dismissed the appeal, confirming

the judgment of conviction and sentence passed by

the learned Magistrate.

6. Heard the learned counsel for the revision

petitioner and the learned Public Prosecutor.

7. The learned counsel for the revision

petitioner submitted that the passengers in the bus

who sustained injuries were examined as PW2 to PW8

before the trial court, did not identify the revision

petitioner and the revision petitioner was convicted 2025:KER:13529

based on the sole evidence of PW10, who is the

pedestrian residing in the nearby house at the place

of the accident. During evidence, PW10 identified

the accused as the driver who drove the bus at the

time of the accident. But, from the cross-

examination of PW10, it has come out in evidence

that in his statement recorded under Section 161

Cr.P.C, he stated to PW14, the investigating

officer, that he has only hearsay knowledge about

the identity of the accused. This contradiction was

proved through PW14. Moreover, it has also come out

in evidence that PW10 was standing at a distance of

about 100 ft. away from the bus. Similarly, he

deposed during cross-examination that due to the

accident, the electricity supply was interrupted in

the locality, and he had no torch in his possession.

The learned counsel further submitted that as per

Ext.P9 trip sheet, the driver of the bus was another

person by name Ajesh Kumar. In such circumstances, 2025:KER:13529

the identification of the accused from the dock by

PW10 is not acceptable in evidence. Moreover, from

Ext.P5 scene mahazar, it could be gathered that the

place of the accident was 87 cm to the north of the

southern road margin wherein the road has a total

width of 7.60 metres alone. The deposition of the

witnesses regarding the high speed of the bus alone

is not sufficient to say that the bus was driven in

a rash and negligent manner when considering the

fact that there was sufficient space left out in

between the place of the accident and the road

margin.

8. The learned Public Prosecutor argued that

the deposition of PW10 regarding hearsay knowledge

about the accused was pertaining to his name alone.

Therefore, the dock identification of the accused by

PW10 is sufficient to prove the identity of the

accused. All the passengers in the bus as well as

PW1 and PW10 deposed that the bus was in a high 2025:KER:13529

speed. Moreover, it dashed on a shed situated on the

southern side of the road and then turned to the

north. These circumstances are sufficient to infer

rash and negligent driving of the bus.

9. PW1 is the person who had lodged the First

Information Statement before the police about the

accident and thus set the law in motion. PW2 to PW8

were the passengers in the bus who sustained injuries

in the accident. PW9 was the door checker in the

bus. PW10 is an eyewitness to the incident. PW11 is

the Assistant Motor Vehicle Inspector who inspected

the motorcycle and the bus involved in the accident

and issued Exts.P2 and P3 certificates. PW12 is the

RTO who had issued Ext.P4 extract of the permit of

the bus, which shows that the permit was to ply from

Muvattupuzha bus stand to Thodupuzha Bus stand. PW13

is a person residing near the place of accident and

an attesting witness to Ext P5 scene mahzar. PW14 is 2025:KER:13529

the Sub Inspector who had registered the crime,

investigated the same and filed the final report.

Out of these 14 witnesses examined from the side of

the prosecution, only PW10 has identified the

accused. Though PW1 to PW8 deposed that the bus was

in a high speed, none of them identified the accused.

The main defence of the revision petitioner is that

his identity is not proved by any convincing

evidence. The prosecution is relying on the oral

evidence of PW10 alone to prove that it was the

revision petitioner who had driven the bus at the

time of the accident. But while going through the

evidence of PWs10 and 14, I am of the opinion that

the evidence of PW10 regarding the identity of the

accused cannot be relied on. Though during the chief

examination PW10 stated that the accused in the dock

was the driver of the bus at the time of the

accident, it was brought out by putting the relevant

portion of his statement recorded under Section 161 2025:KER:13529

Cr.P.C that he stated to PW14 that he understood the

name of the accused as told by the passengers in the

bus. When this portion of the evidence was put to

PW14, he deposed that PW10 gave him the statement

that he had only hearsay knowledge about the

accused.

10. The relevancy of the statement recorded by

the investigating officer under Section 161 Cr.P.C

is stated in Section 162 of Cr.P.C. As per the

proviso to Section 162, any part of the statement

recorded under Section 161 Cr.P.C, if duly proved,

may be used by the accused, and with the permission

of the court by the prosecution to contradict such

witness in the manner provided by Section 145 of the

Indian Evidence Act, and when any part of such

statement is so used, any part thereof may also be

used in the re-examination of such witness, but for

the purpose only of explaining any matter referred 2025:KER:13529

to in his cross-examination.

11. As per Section 145 of the Indian Evidence

Act, 1872, a witness may be cross-examined as to

previous statement made by him in writing or reduced

into writing and relevant to the matter in question,

without such writing being shown to him, or being

proved; but, if it is intending to contradict him by

the writing, his attention must, before the writing

can be proved, be called to those parts of it which

are to be used for the purpose of contradicting him.

12. In Alauddin v. State of Assam [AIR 2024 SC

2283], the Apex Court held thus:

"When the two statements cannot stand together, they become contradictory statements. When a witness makes a statement in his evidence before the Court which is inconsistent with what he has stated in his statement recorded by the Police, there is a contradiction. When a prosecution witness whose statement under S.161(1) or S.164 of CrPC has been recorded states factual aspects before the Court which he has not stated in his prior statement recorded under S.161 (1) or S.164 of CrPC, it is said that there is an omission. There 2025:KER:13529

will be an omission if the witness has omitted to state a fact in his statement recorded by the Police, which he states before the Court in his evidence. The explanation to S.162 CrPC indicates that an omission may amount to a contradiction when it is significant and relevant. Thus, every omission is not a contradiction. It becomes a contradiction provided it satisfies the test laid down in the explanation under S.162. Therefore, when an omission becomes a contradiction, the procedure provided in the proviso to sub-Section (1) of S.162 must be followed for contradicting witnesses in the cross-examination".

13. The evidence of PWs 10 and 14, if analysed

in light of the above provisions of law and the

dictum laid down by the Apex Court, would make it

clear that the contradiction in the evidence of PW10

is proved from the side of the accused by putting

the relevant portion of the statement to PW10 as

well as to PW14 the investigating officer in the

manner provided by Section 145 of the Indian Evidence

Act, 1872.

14. It is also pertinent to note in this case

that Ext.P9 trip sheet shows the name of another 2025:KER:13529

person as the driver of the bus. None of the

passengers in the bus identified the driver during

evidence. Moreover, as rightly argued by the learned

counsel for the petitioner-accused, PW10 was

standing at a distance of about 100 metres away from

the place of the accident. According to him, power

supply was also absent at that time due to the

accident. The time of the accident was at 9.40 pm.

The evidence of PW14 shows that at the time of

arrival of the police, who took the injured to the

hospital, the driver of the bus was not present at

the place of the accident. That means the person who

drove the bus left the place of the accident,

immediately after the accident. In such

circumstances, it is hard to believe that PW10

identified the accused from the spot. Admittedly, no

identification parade was conducted during

investigation to get the accused identified by the

witnesses. Therefore, the dock identification of the 2025:KER:13529

accused by PW10 cannot be relied upon to prove the

identity of the accused.

15. While coming to the question of rash and

negligent driving, speed alone is not a criteria to

decide that the vehicle was driven in a rash and

negligent manner. In Mohammed. P. v. State of Kerala

[2021 (1) KHC 420] this court held thus:

"Driving at a high speed is not in itself a negligent act. In the case of Ravi Kapur v. State of Rajasthan (2012 KHC 4435 : AIR 2012 SC 2986 :

2012 (7) SCALE 354 : 2012 (3) KLT SN 151 : (2012) 9 SCC 284 : 2012 CriLJ 4403 : 2013 (115) Cut LT 180 : (2012) 4 SCC (Civ) 660 : (2012) 3 SCC (Cri) 1107), the Apex Court held that a person who drives a vehicle is liable to be held responsible for the act as well as for the result and that it may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently and even when one is driving a vehicle at a slow speed, but, recklessly and negligently, it would amount to 'rash and negligent driving' within the meaning of the language of S.279 of the IPC. Mere driving of a vehicle at a high speed or slow speed does not lead to an inference that negligent or rash driving had caused 2025:KER:13529

the accident resulting in injuries to the complainant. Thus, the speed is not a criterion to establish the fact of rash and negligent driving of a vehicle".

16. From Ext.P5 scene mahazar, it could be seen

that the place of the accident is near to a curve on

the road sloping towards the north. There was a gap

of 87 cm from the road margin on the south to the

place of the accident. What was the speed of the bus

at the time of the accident is unknown. Only for the

reason that the witnesses deposed that the bus was

at high speed, it cannot be inferred that it was

driven in a rash and negligent manner.

17. While analysing these material facts and

evidence, it is clear that the prosecution has

miserably failed to prove the identity of the accused