RAJU JACOB Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner challenges the concurrent finding entered against him by the courts below, finding him guilty of offence under Sec. 304A IPC. The incident took place on 27.9.1998 at about 2 PM PW2 was riding the bicycle from north to south. The deceased boy aged 11 years was sitting on the rear seat of the cycle. The bus driven by the petitioner came from the opposite side i.e.; from south to north in a rash and negligent manner endangering human life. The bus proceeded along the wrong side i.e.; through the extreme right side of the road and thus the handle of the cycle got rubbed by the right side body of the bus, as a result of which the cyclist fell on the eastern side of the road whereas the boy who was sitting behind fell on the road i.e.; on the other side, on the western side of the cycle. The boy sustained serious injuries to which he later succumbed. The prosecution alleged that the accused was the driver of the bus. Charge sheet was laid.

(2.) Before the trial court PW1 to PW11 were examined and Exts.P1 to P9 were marked. The trial court found that the bus was driven in a rash and negligent manner. The evidence given by PW1 and PW2 that the bus was driven through the extreme eastern side of the road while the bus was being driven from south to north was taken as a strong circumstance to prove that the bus was driven in a rash and negligent manner. That finding is based on legal evidence.

(3.) The main thrust of the argument advanced by the learned counsel for the petitioner is that there is no legal evidence to hold that the petitioner was the person who drove the bus at the relevant time. PW1 has deposed as to how the accident occurred. He did not say that it was the accused who drove the bus. His evidence did not support the prosecution to prove the identity of the person who drove the bus. PW2, the Cyclist also did not say that it was the accused who drove the bus at the relevant time. The court below relied upon Ext.P3 letter stated to have been signed and given by PW3, the owner of the bus. The evidence given by PW3 would show that he along with another partner were the owners of the bus. He had at first admitted that Ext.P3 was signed and issued by him. Later he gave evasive answers evidently to setal a march on the court. The way in which the evidence was given by PW3 would clearly show that he uttered false before the court. Ext.P3 is only a letter. This was a letter obtained in the course of investigation. PW3 was in fact not an eye witness to the occurrence. His statement is to the effect that there was another driver for the very same bus. It was the responsibility of PW3 to maintain proper record to that effect. To fix the identity of the driver some other evidence should have/could have been collected by the investigating agency, it is argued. It is true that there is growing tendency in accident cases to win over the witnesses as a result of which the witnesses turn hostile. Therefore the police has to collect some other evidence to prove the identity of the driver of the vehicle at the time of the accident. The fact that the accused had executed a bail bond for getting himself released on bail also cannot be treated as the legal evidence to hold that the prosecution could prove that it was the petitioner who drove the bus at the time of the accident. Even if Ext.P3 letter was proved in the manner required by law, the admissibility of that letter is under challenge. Based on Ext.P3 alone, the prosecution cannot prove the identity of the accused as the driver of the bus at the relevant time. The trip sheet of the bus was not seized. Had the trip sheet been seized it would have shown the driver and conductor of the bus which would have helped the prosecution to supplement the evidence regarding the identity of the driver of the bus at the relevant time. Though there is evidence to prove the rashness or negligence, the evidence regarding identity of the driver is not sufficient so as to confirm the conviction.