Kerala High Court

Muralidharan vs State Of Kerala on 8 January, 2025

Author: K.Babu

Bench: K. Babu

Crl.R.P..No.2099 of 2007
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            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                 THE HONOURABLE MR.JUSTICE K. BABU

WEDNESDAY, THE 8TH DAY OF JANUARY 2025 / 18TH POUSHA, 1946

                    CRL.REV.PET NO. 2099 OF 2007

        AGAINST     THE     ORDER/JUDGMENT    DATED    17.03.2007    IN

Crl.A NO.281 OF 2005 OF ADDITIONAL SESSIONS COURT FAST

TRACK     COURT-II,        PATHANAMTHITTA    ARISING    OUT   OF    THE

ORDER/JUDGMENT DATED IN CC NO.261 OF 2002 OF JUDICIAL

MAGISTRATE OF FIRST CLASS ,RANNI

REVISION PETITIONER/S:

             MURALIDHARAN
             PARACKALETHU HOUSE, MAMPARA,, PERUNAD


             BY ADV SRI.V.PHILIP MATHEW


RESPONDENT/S:

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


OTHER PRESENT:

             G SUDHEER,PP
 Crl.R.P..No.2099 of 2007
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       THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION      ON   08.01.2025,   THE   COURT   ON   THE     SAME   DAY
DELIVERED THE FOLLOWING:
 Crl.R.P..No.2099 of 2007
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                                                         "C.R."


                              K.BABU, J
             -------------------------------------------------
                     Crl.R.P. No.2099 of 2007
             -------------------------------------------------
            Dated this the 8th day of January, 2025

                              ORDER

The challenge in this Crl. Revision Petition is to the

judgment dated 16.08.2005 passed by the Judicial First

Class Magistrate Court, Ranny, in C.C.No.261 of 2002 and

confirmed by the Additional Sessions (Adhoc) Fast Track

Court-II, Pathanamthitta, in the judgment dated

17.03.2007 in Crl.Appeal. No.281 of 2005. The revision

petitioner faces offences under Sections 279, 337, 338

and 304(A) of the Indian Penal Code. The trial Court

convicted him for the above-said offences and sentenced

to undergo various terms of imprisonment.

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Prosecution Case

2. The accused was the driver of a private bus

bearing Regn No. KL-3/A-466. He drove the bus in a rash

and negligent manner, endangering human life through

Vadasserikara-Pampa Public Road from east to west on

06.07.2001 at 11.20 am, and the vehicle hit a KSRTC bus

bearing Registration No.KL-15/1295 at Murikkayamukku

in Perunad Village causing the death of two persons and

hurt and grievous hurt to around 26 persons who were

travelling in the KSRTC bus.

3. On the side of the prosecution, PWs 1 to 30

were examined. The prosecution also proved Exts.P1 to

P41.

4. PW1 gave Ext.P1 FIS. He was a traveller in the

KSRTC bus. He sustained injuries in the accident. He did

not support the prosecution case that the accused drove

the vehicle in a rash and negligent manner. The

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occurrence witnesses, PWs 2 to 9, 12 and 13 to 15 also

did not support the prosecution.

5. PWs 10, 11, 16 and 17 identified the accused as

the driver who drove the offending vehicle. PW2, the

driver of the KSRTC bus, stated that the bus driven by the

accused hit the bus driven by him. He drove the vehicle

in speed, the witness added.

6. PW16, another injured in the incident, deposed

that the incident occurred due to the rash driving of the

offending vehicle by the accused. PW17 stated that the

over-speed of the vehicle driven by the accused resulted

in the accident.

7. The learned trial Judge heavily relied on Ext.P3

scene mahazar to come to a conclusion that the

description of the scene of occurrence would show that

the offending vehicle had gone to the wrong side, causing

the incident. Applying the principle res ipsa loquitur, the

learned Magistrate came to the conclusion that the

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prosecution has succeeded in proving its case beyond

reasonable doubt. Ext.P3 scene mahazar narrated that

the width of the tar road was 8m15cm, and the road

margin had a width of 2m20cm on the north and 2m65cm

on the south. In Ext.P3, it is noted that the right wheel of

the private bus was found standing 43cm to the north

west towards the place of occurrence. It is also noted

therein that the front side of the private bus hit the front

right side of the KSRTC bus behind its right wheel.

Relying on Ext.P3 scene mahazar, the learned Magistrate,

came to the conclusion that the incident occurred beyond

the middle of the tar road towards the north. Therefore,

the learned Magistrate concluded that the private bus

went to the wrong side of the road.

8. The learned counsel for the revision petitioner

relied on the following grounds to contend that the

findings of the trial Court and the Sessions Court are

untenable in law.

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(a)The contents of Ext.P3 scene mahazar have not

been proved by way of admissible evidence.

(b)Criminality cannot be presumed with the aid of

the principle of res ipsa loquitur.

(c)The evidence that the accused drove the

vehicle at high speed is not a ground to come to

the conclusion that the accused drove it in a rash

and negligent manner.

9. The 'evidence' consists of oral evidence and

documentary evidence. The relevant facts in the case can

be established either by oral evidence or documentary

evidence. As per Section 59 of the Evidence Act, all facts,

except the contents of documents or electronic records,

may be proved by oral evidence. Section 60 of the

Evidence Act says that oral evidence must, in all cases,

whatever, be direct.

10. In the present case, the crucial document relied

on by the trial Court, Ext.P3 scene mahazar, contains the

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facts the Investigating Officer saw at the scene. The

Investigating Officer has clearly narrated in the mahazar

the facts he observed on the scene. Ext.P3 was marked

through PW18, a witness to the scene mahazar. The

witness through whom Ext.P3 was marked did not tender

any evidence regarding the contents of the mahazar. He

did not give any evidence regarding the place of

occurrence. He only identified his signature in Ext.P3.

The question is, how can the contents of Ext.P3 be

proved? Going by the mandate of Sections 59 and 60 of

the Evidence Act, as Ext.P3 contains what the

Investigating Officer saw at the place of occurrence, the

contents of the same could have been proved only by way

of the oral evidence given by the Investigating Officer or

any of the witnesses who narrated about the place of

occurrence. In Narbada Devi Gupta v. Birendra

Kumar Jaiswal And Anr [(2003) 8 SCC 745], the

Supreme Court held that mere production and marking of

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a document as Exhibit by the Court, cannot be held to be

a due proof of its contents. In Rameshwar Dayal v.

State of U.P. [AIR 1978 SC 1558], the Supreme Court

observed that, that part of such documents which is

based on the actual observation of the witness at the spot

being direct evidence in the case is clearly admissible

under Section 60 of the Evidence Act. In Ramji

Dayawala and Sons (P) Ltd. v. Invest Import [(1981) 1

SCC 80], the Supreme Court held that undoubtedly, mere

proof of the handwriting of a document would not

tantamount to proof of all the contents or the facts stated

in the document. And the truth or otherwise of the facts

or contents so stated would have to be proved by

admissible evidence, that is by the evidence of those

persons who can vouchsafe for the truth of the facts in

issue. In Mohanan v. State of Kerala [2011 (3) KHC

680], this Court held that the observations made

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personally by the Investigating Officer at the scene, such

as what he saw etc., have to be deposed to by him in

Court in the light of Section 60 of the Evidence Act.

11. In the present case, the Investigating Officer

did not give evidence. None of the prosecution witnesses

gave evidence regarding the scene of occurrence. The

learned Magistrate, relying on the description in Ext.P3,

came to the conclusion that the offending vehicle had

gone to the wrong side of the road which resulted in the

incident. Based on Ext.P3, the contents of the same left

without admissible proof, the learned Magistrate applied

the principle of res ipsa loquitur.

12. The general purport of the words, res ipsa

loquitur, is that the accident speaks for itself or tells its

own story.

13. Where the thing is shown to be under the

management of the defendant or his servants, and the

accident is such as in the ordinary course of things does

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not happen if those who have the management use proper

care, it affords reasonable evidence, in the absence of

explanation by the defendants, that the accident arose

from want of care. The maxim does not embody any rule

of substantive law nor a rule of evidence. It is perhaps not

a rule of any kind but simply the caption to an argument

on the evidence. Lord Shaw remarked that if the phrase

had not been in Latin, nobody would have called it a

principle (Ballard v. North British Railway Co., 1923

SC (HL) 43). The maxim is only a convenient label to

apply to a set of circumstances in which the plaintiff

proves a case so as to call for a rebuttal from the

defendant, without having to allege and prove any

specific act or omission on the part of the defendant.

[Vide: Sanjay Gupta v. State of Uttar Pradesh [(2022)

7 SCC 203].

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14. In State of Karnataka v. Satish [(1998) 8 SCC

493] on the application of the principle res ipsa loquitur,

the Supreme Court held thus:-

"4.....In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions.... "

15. The Privy Council in Ng Chun Pui v. Lee

Chuen Tat [1988] R.T.R 298 : (1988) 5 WLUK 235] held

that there is not, even where res ipsa loquitur, any legal

presumption of negligence which would effect the putting

of the legal burden of disproving negligence on the

defendant.

16. On the question whether an inference of

negligence could properly be drawn based on the

doctrine of res ipsa loquitur, this Court in Kesava Pillai

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v. State of Kerala [1985 KLT SN 62 (C.No.92)] held

thus:-

"In criminal cases the maxim is available only as a ratiocinate aid in the assessment of evidence in drawing permissive inferences. In civil cases the maxim operates as an exception to the general rule that burden of the alleged negligence in the first instance is on the plaintiff. That is because of the presumption of negligence arising from the circumstances of the accident. But in criminal cases the burden of proving everything essential for the establishment of the charge is on the prosecution. Criminality cannot be presumed subject to statutory exception. No such statutory exception requiring drawing of mandatory presumption of negligence could be imported in criminal liability. There cannot be any statutory presumption of crime having been committed. That is why the maxim is available in criminal cases only as an aid for assessment of evidence."

17. Therefore, the principle of res ipsa loquitur

can be extended to criminal cases, only as an aid for

assessment of evidence.

18. In the present case, relying on the inadmissible

contents in Ext.P3 scene mahazar, the learned Magistrate

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applied the principle of res ipsa loquitur to convict the

accused, which is untenable in law.

19. Yet another aspect that requires consideration

is that no witness gave evidence that the accused rashly

or negligently drove the vehicle at the time of occurrence.

PWs 16 and 17 deposed that the accused drove the

vehicle in high speed. Vehicles are expected to be driven

on the road at a fairly high speed. The prosecution has

to bring on record materials of proof as to what is meant

by high speed in the facts and circumstances of each

case. In State of Karnataka v. Satish (Supra), the

Supreme Court observed thus:-

"4.Merely because the truck was being driven at a "high speed"

does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case....."

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20. In the instant case, the prosecution failed to

establish that the accused drove the vehicle in a high

speed within the meaning of rashness and negligence.

The trial Court and the Sessions Court came to

unreasonable conclusions. There is palpable misreading

of records. The conviction of guilt is liable to be set

aside.

Therefore, the Crl.R.P. is allowed. The judgment

dated 16.08.2005 passed by the Judicial First Class

Magistrate Court, Ranny, in C.C.No.261 of 2002 and

confirmed by the Additional Sessions (Adhoc) Fast Track