GOVINDAN NAMBIAR Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner was concurrently found guilty of offences punishable under S.304(A) & 337 IPC. Prosecution case was that petitioner drove bus KRE 2714 in a rash or negligent manner as a result of which it collided with scooter KRC 1733 that Pw. I was riding. The pillion rider was thrown off, and he sustained injuries which eventually led to his death. Courts below found the petitioner guilty on the evidence of Pws. 1 to 3 and no more; because there was nothing more, by way of evidence. Pw. 1 did not claim to have seen the occurrence and apparently he could not have, because it happened behind him. Pw. 2 does not speak to any collision between the bus and the scooter. Pw. 3 says that it was his recollection that the bus hit the scooter at its rear. It would thus be seen that there was no direct evidence of collision. Nor do, witnesses speak of rash, or negligent driving.

(2.) Learned counsel for petitioner submits that the evidence does not make out the basic ingredients, required to find the offence. He is right. Evidence of the Motor Vehicle Inspector could have been useful, But, for reasons best known to the prosecution, he did not turn up and nor were steps taken to ensure his presence. It is the contention of counsel that if he bad been examined, it would have proved that there was no collision. To lend support to this argument, counsel referred to the Motor Vehicle Inspector's report produced, but not marked. This shows that the damage seen on the scooter was on its front mudguard, mirror fitted on the front side, and the front shield. There was not even a scratch on the paint on the rear of the scooter, as one would have expected if there was a collision. The front aspect of the bus also does not reveal any damage, scratch mark or other signs of collision. Probabilities are that the bus did not hit the scooter. Petitioner's case is that Pw-1 was learning to drive the scooter and that the accident was due to his poor driving.

(3.) Counsel then invited attention to the decision of the Supreme Court in Nageswar v. State of Maharashtra ( AIR 1973 SC 165 ). The Supreme Court pointed out the necessity to note tyre-marks because, this would be material evidence. Tyre-marks may not be available in every case but wherever they are available, they would afford positive and intrinsic evidence. It is to the advantage of prosecution and the Investigator, to note tyre-marks whenever they are present. Atleast, after the Supreme Court pronounced, any diligent investigating agency should have borne in mind the significance of the observations in the decision which is Law under Art.141 of the Constitution. It is unfortunate that even such matters are not noticed by the investigating agency, where serious offences affecting road safety are involved.