STATE AND OTHERS Vs. RADHAKRISHNAN NAIR

JUDGEMENT

(1.) THE Appeal by the State of Kerala, and the Revision Petition by the husband and brother (P.W.1) of a lady, whose death gave rise to this case, are directed against the order of acquittal made by the Judicial Magistrate of First Class, Trivandrum in C.C.284/90. Accused stood trial for having caused the death of one Uma Devi at or about 5.20 P.M. on 23.6.'88 on the Museum -Vellayambalam Public Road, by knocking her down while riding a motor byke in a rash and negligent manner. Prosecution case is that Uma Devi after talking with her friend Sarojam P.W.2, had put one foot on the road when the motor byke which the accused was riding came thundering down the road at a very high speed and hit her. The motor byke lost its course, moved on to the middle of the road and turned topsy turvey in front of a car KEV 3245, driven by P.W.7. The people who had gathered there, carried the injured woman to the General Hospital, Trivandrum and then to the Medical College Hospital where she died at 6.15 p.m. P.W.I made a report to the police the next day at 7.30 a.m. Police registered a crime and proceeded with the investigation. Accused -respondent was eventually charge sheeted. P.Ws. 2,4,5 and 7 speak to the occurrence in great detail.

(2.) ACCORDING to P.W.2, she and Uma Devi were talking to each other and then Uma Devi moved away to cross the road and catch a bus homewards. She put one foot on the road and then the motor byke which the accused was riding came at a high speed and hit her. She catapulted and fell on her head. To the same effect, is the evidence of P.W.4 who states that Uma Devi put one foot on the road when the motor byke came fast and hit her. The motor byke which was moving at a high speed had lost its course. P.W.5 also deposes on the same line and states that Uma Devi had put one foot on the road. Before she put the other foot, she was hit. P.W.7 driver of car K.K.V. 3245 also speaks on the same lines. In his cross -examination, he says that Uma Devi might have taken one step or two. These four witnesses identified the accused as the person who was riding the motor byke at the relevant time. If their evidence is accepted, identity of the rider and the rash and negligent manner of driving, would stand proved. But, the learned trial Magistrate was not inclined to rely on this evidence. The Magistrate appears to think that the deceased was "admittedly crossing" the road and that in this process she was knocked down. Even that would not change the nature of the act, if the driving was rash or negligent. That apart, there is clear misdirection in the statement because, no witness says that Uma Devi was crossing the road or that she was somewhere on the middle of the road. Her intention may have been to cross the road. But, she was not crossing the road. She had only put her foot on the road and had only reached the shoulder of the road. It was then that she was hit. That is not a reason to import the imagery of crossing the road, a common place defence. A reasonable and prudent driver, or rider of a byke would not drive so close to the footpath, where the pedestrians who intend to cross the road would place themselves. The high speed spoken to by the witnesses, is also indicative of rashness.

(3.) LEARNED counsel for respondent -accused commented on the delay in the first information report. The first information report was made only thirteen hours after the occurrence. But, the person who made the first information report was not an eye witness. Despatch is necessary but delay not always is fatal. In the instant case, the near relatives who are not eye witnesses were busy in the hospital and elsewhere after the death of Uma Devi. There is no unexplained delay, in making a report to the police.