CHINNAIAN Vs. STATE

JUDGEMENT

(1.) THIS revision is against the conviction and sentence imposed by the learned II Additional Sessions Judge, North Arcot Ambedkar district at Vellore in C. A. No. 206 of 1991 confirming the order of conviction passed by the learned Judicial Magistrate No. 5, Vellore in C. C. No. 198 of 1988 for the offence under Sec. 304-A, Indian Penal Code to pay a fine of Rs. 3,000 and in default to undergo simple imprisonment for six months.

(2.) THE road accident had taken place on 12. 5. 1988 at 11. 00 a. m. in Pallikonda- Vellore Road between Kilometres 99/2 and 99/4. When the deceased Ramasamy was proceeding in the said road from west to east in his cycle, the bus driven by the revision petitioner from behind the cycle, dashed against the cyclist and killed him on the spot and the bus also ran amuck after the accident towards the northern side, deviating from the main road. Two witnesses viz. , P. Ws. 1 and 2 have spoken about the accident. Both of them have spoken that when the deceased was riding his cycle from west to east on the left-hand side of the road, the bus had hit against him. But the evidence of P. W. 1 was commented very much by the learned counsel for the revision petitioner on the ground that though he was in his land close to the place of accident, he has admitted that he was cutting grass when the accident had taken place and only after hearing the noise, he turned his eyes to the direction of the accident. According to the learned counsel Mr. Gopinath, appearing for the revision petitioner, when P. W. 1 admits that he happened to see the accident only after hearing the noise, he might not have seen where the cyclist was on the road at the time of the accident, and how the bus had hit against him. This argument is acceptable in view of the fact that P. W. 1 had turned his eyes to the place of the accident only after the accident had taken place. But the evidence of P. W. 2 cannot be in any way discredited. P. W. 2 was driving his bullock cart near the place of accident in the same direction in the same road and according to him only few minutes before the occurrence, while overtaking his bullock-cart, the deceased talked to him as they are known to each other and when the deceased was going ahead about 20'away on the mud portion of the road, the bus which was proceeding behind him, hit against the cyclist as the bus gave way for a lorry which came from the opposite direction. It appears that the coming of the lorry from the opposite direction is not stated in his Sec. 161 statement. But he has affirmed that the deceased was on the mud portion of the road when he was hit by the bus. This evidence of P. W. 2 is corroborated by the photographs taken in the place of accident. THE photo shows that the cycle of the deceased is lying partly in the mud portion and partly in the thar portion. If really the deceased was in the road in the central portion of the road or on the wrong side, the cycle cannot be found partly on the mud portion of the road on the northern side. THE driver of the bus had lost control of the bus and it ran down from the road about 30' northern side of the road. THErefore, it is very clear that the deceased had been on his proper side, that is on the mud portion on the northern side of the road but some how the bus had hit against the cyclist and had also ran away deviating from the road. But unfortunately from the evidence of P. W. 2 alone, I am unable to hold that there was no mechanical failure in the bus. It is true that the Motor Vehicle Inspector's report Ex. P-8 has been marked in this case but the learned counsel appearing for the revision petitioner Mr. Gopinath contended that this report of the Motor Vehicle's Inspector has not been proved in the manner required by law. THE author of this report namely the motor Vehicles Inspector was not examined but his report has been marked through the Investigating Officer, P. W. 4, who has simply stated that he received the information of the Motor Vehicles Inspector. THE learned counsel mr. Gopinath argued that under Sec. 294, Code of Criminal Procedure, the formal proof of certain documents need not be by examining the author of the document but the prosecution ought to have filed a list of such documents calling upon the accused either to admit or deny the genuineness of such documents and only when the accused has not denied the genuineness and admitted the documents, the same could have been received in evidence without examining the witness conducted with the document but in this case as this was not followed, Ex. P-8 is inadmissible in evidence and the contents therein are not proved and therefore, it has to be taken that there is no evidence before the court to hold that there was no mechanical failure in the bus. He also relies upon a decision of the Full Bench of the Allahabad High Court in Saddiq v. State, 1981 crl. L. J. 379, wherein the Allahabad High Court has held that a document to be received without proof of the documents, shall be mentioned in the list and the opposite party or his pleader shall be called upon to admit or deny the genuineness of such document under Sec. 294, Code of Criminal Procedure and only by such process, the document can be received in evidence. In this case, this procedure was not followed and P. W. 4, the Investigating Officer, who is not connected with the contents of this document, has simply produced it and the same has been received though it was not objected by the accused.