ABU Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner was the accused in C. C. No. 212 of 1977 of the Judicial I Class Magistrate's Court, Ettumanoor. He was tried for offences punishable under S. 279, 337, 338 and 304a I. P. C. He was sentenced to undergo rigorous imprisonment for six months for the offence under S. 337 and 18 months imprisonment for offence under S. 338 and 304a I. P. C. with a direction that the sentences shall run concurrently. He filed an appeal before the sessions Court, Kottayam, which was dismissed. Hence this revision.

(2.) THE prosecution case is as follows: THE petitioner was driving a Kerala State Road Transport Corporation bus K. R. T. 2385 on 30th april, 1977 along the M. G. Road from north to South at the Garithas Hospital junction. At 1. 15 a. m. the bus hit the rear side of Lorry No. KLK 8061 which was parked on the eastern side of the road loaded with timber. As a result of the collision two persons in the bus died and eight persons sustained grievous injuries. THE prosecution case was attempted to be proved by examining P. Ws. 1 to 13. P. Ws. 1, 2, 3, 4 and 5 were occurrence witnesses. Others were official witnesses. THE evidence of the witnesses was believed by the courts below to find the petitioner guilty.

(3.) IT is in this context that the learned counsel for the prosecution found fault with the investigation in this case. According to him, the Investigating Officer should have taken care to bring on record all the necessary materials for the court to be satisfied that the accident took place only because of the negligent act of the driver. To prove an accident like this involving in the death of two persons and in considerable injury to others evidence should have been more acceptable. According to the petitioner's counsel the petitioner was driving a Kerala State Road Transport Corporation bus. IT is common knowledge that these buses have a time schedule. The inspector of Police could have very easily ascertained the starting time of the vehicle and the arrival time of the vehicle at its destination. He could easily ascertain also the distance between the two points from which the court would have been in a very comfortable position to conclude about the speed with which the vehicle was going. The materials in this case indicate that the petitioner took charge of the vehicle at Perinthalmanna. He had to reach Kottayam via, palai. He had passed Palai and had crossed Ettumanoor also. He was only a few kilometres away from Kottayam. From the statement of the accused under S. 313 it is seen that the accident took place at one midnight. He reached Palai bus stand at 12 midnight. He started from these at 12. 25. The petitioner's counsel has collected materials from the Kerala State Road Transport Corporation regarding the timings. According to him, the distance between Perinthalmanna to kottayam is 221. 7 kms. He took the vehicle from Perinthalmanna at 6 p. m. He was due to arrive at Kottayam at 1. 15 a. m. On route, he had to stop at a few stations. The petitioner's learned counsel submitted that since the accident took place at 1 a. m. at a place which was only a few kilometres away from kottayam where he should reach at 1. 15, it has to be presumed that he was going within permissible limits of speed which according to him is 40 kms. per hour. I cannot depend upon these materials which do not find a place in the evidence, though the Public Prosecutor did not venture to contradict the submissions made by the petitioner's counsel on those things. However, I cannot, but observe, that the investigation in the case suffers from a serious omission in not making available to the court this important piece of evidence which would have helped the court to a large extent to find out what really the speed of the vehicle was. In addition to this, the investigation has not supplied materials as to whether at the accident spot, there was light or not. The police officer has not clearly stated whether the electric post at that place in front of the lorry had light on it or not. All that he deposed was that it did not strike him as important. This answer is as evasive as his answer about his omission to mention the existence of the danger light at the extremity of the projecting log of wood. In this context it will be useful to refer to the evidence of P. W. 2, according to whom, a speed above 25 miles per hour would be high speed. In the absence of any clear evidence from the prosecution about the speed, the evidence of P. W. 2, the fact that the bus was near its destination and the statement of the accused should together be taken to assume that the bus was coming at a speed of 40 kms. per hour which in the circumstances of the case cannot be said to be high. At night if a bus goes at this speed on a straight road it cannot be said that the speed was high.