SURESH BABU Vs. STATE OF KERALA

JUDGEMENT

(1.) The revision petitioner herein challenges the conviction and sentence against him under Sections 279 and 304(A) IPC in C.C. No.170/1999 of the Chief Judicial Magistrate Court, Thalassery. He faced prosecution in the court below on the allegation that at about 5.30 p.m. on 10.2.1999, he drove the autorickshaw No.KL 11-B/3305 rashly and negligently, so as to endanger human life, along the Mundathode - Kadavathur Public Road, the autorickshaw hit down a girl, who was walking along the side of the road, and in the said accident, the girl sustained fatal injuries, to which, she succumbed within no time. The police registered the crime on the complaint made by the brother of the deceased, and after investigation, submitted final report in court under Sections 279 and 304(A) IPC. The accused appeared before the learned Magistrate, and pleaded not guilty, when the substance of the accusation was read over and explained to him.

(2.) The prosecution examined 11 - witnesses, and proved Exts.P1 to P8 documents in the trial court. The accused denied the incriminating circumstances, when examined under Section 313 Cr.P.C., and projected a defence that the unfortunate accident happened due to the carelessness on the part of the girl, who tried to run across the road. The accused did not adduce any evidence in defence. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo simple imprisonment for six months, and to pay a fine of Rs. 500/- under Section 279 IPC, and to undergo simple imprisonment for another period of six months, and to pay a fine of Rs. 2000/- under Section 304(A) IPC. Aggrieved by the judgment of conviction dated 23.5.2001, the accused approached the Court of Session, Thalassery with Crl.A. No.301/2001. In appeal, the learned Additional Sessions Judge, Thalassery confirmed the conviction and sentence, and accordingly, dismissed the appeal. Now, the accused is before this Court in revision, challenging the legality and propriety of the conviction and sentence.

(3.) On hearing both sides, and on a perusal of the materials, I find that there is no satisfactory and clear evidence in this case to prove the guilt of the accused. Of the 11 witnesses examined in the trial court, only PW1 and PW2 are the material witnesses. Of them, PW1 is the brother of the deceased, and PW2 is a person of the locality, who witnessed the accident. These two witnesses have no consistency as regards the exact spot of accident, or the exact reason for the accident. PW2 stated in evidence that the autorickshaw came from the opposite direction, while the deceased girl was walking along the correct side of the road. Nobody says about the direction of the road as to whether it is north-south or east-west. Nobody says, where exactly the accident occurred; whether on the tarred road, or on the mud road. The learned Assistant Public Prosecutor did not elicit these necessary aspects from PW1 and PW2. The Ext.P2 scene mahazar is also not helpful on these aspects. One portion of the scene mahazar would indicate that the road at the place of accident is north-south, whereas, another portion would indicate that it is east-west. Any way, the crucial point is, towards what direction the deceased girl was walking, and from what direction, the autorickshaw came. On these two very material aspects, there is nothing in the evidence of PW1 or PW2. The evidence of PW1 is that, the autorickshaw came along the correct side of the road. He has no case that it came from the opposite side. The evidence of PW2 is that the autorickshaw came from the opposite side, and the two witnesses are consistent that the left front side of the autorickshaw hit on the body of the deceased. Had the deceased been walking in the opposite direction, and if the front left side of the autorickshaw hit on her body, the autorickshaw proceeding along the correct side must go to the wrong side. Nobody has got a case that the autorickshaw came to the wrong side to hit down the pedestrian.