(1.) THE first petitioner was the conductor and the 2nd petitioner was the driver of �Thillai Natarajan� bus, which was plying between Chidambaram and Kattumannarkoil. THEy were tried in C.C.No.226 of 1982, on the file of the Judicial First Class Magistrate, Chidambaram, for an offence under Sec.304-A, Indian Penal Code on the allegation on 5.2.1982 at or about 10.15 P.M., opposite to Lalpettai High School, while Natarajan (the deceased) was alighting from the front exit gate of the bus, the 1st petitioner gave the whistle for starting of the bus, on which the 2nd petitioner took off the bus from the bus-stop, during the course of which, the deceased who was half ay in the process of getting down from the bus, fell underneath, resulting in the bus running over him, leading to his death. THE trial Court found the petitioners guilty as charged and sentenced each one of them to undergo rigorous imprisonment for three months and to pay a fine of Rs.300 each, in default to undergo rigorous imprisonment for two more months.
(2.) AGGRIEVED thereby, the petitioner filed C.A.No.8 of 1984 on the file of the Additional Sessions Judge, South Arcot at Cuddalore. The appellate court affirmed the findings of the trial Magistrate and dismissed the appeal. The correctness of the judgment of both Courts below is challenged in this revision.
(3.) I have carefully considered the rival contentions. P.Ws.1 and 2 are the eye witnesses to the occurrence. P.W.1 was a passenger in the bus. He got down from the rear side of the bus, which entrance was intended for passengers getting in. The victim Natarajan was getting out of the bus from the front entrance of the bus. According to P.W.1 after he got down from the bus, the 1st petitioner whistled and the 2nd petitioner took off the bus from the bus stop and in that process, the victim who had not got down fully from the bus fell down and consequently was run over by the bus. P.W.2 was a passer-by and he has definitely stated in cross-examination that he was not aware, as to how the victim sustained injuries. He did not even notice whether there was any injury at all on Natarajan. He was also specific that only after hearing some noise he ran over to the scene and found that the victim was injured. Naturally P.W.2 cannot be an eye witness to the incident. Therefore, his evidence does not help the prosecution. If the evidence of the sole eye witness P.W.1 has to be accepted, it may be necessary on the peculiar facts of the case to seek for some corroboration, so as to lend assurance to his version. That corroboration is not available, but on the contrary the medical evidence completely shatters the prosecution case. Fourteen injuries were noticed by the Medical Officer (P.W.3) on the victim, out of which, few of them were abrasions. Of course the Medical Officer had noticed fracture of bones in the chest and back. But he (P.W.3) has offered a definite opinion that all the injuries were possible by the dashing of a bus. He has further stated that those injuries were possible, on a man falling down and rolling on the ground. When he was cross examined, he affirmed with a certainty, that the injuries noticed by him on the victim were not due to. running over by bus. He had also not noticed any tyre marks on the body of the deceased. Both P.Ws.1 and 2 admit that the bus had stopped at the Lalpettai Bus Stop for about five, minutes. They are also specific that only two passengers got down from the bus and one was P.W.1 and the other was the victim Natarajan. If the bus had stopped for about five minutes, at the bus stop, it would be unnatural to expect the victim not having alighted within that time. P.W.1 who got down from the bus through the rear entrance would not have been really in a position to notice the incident, that too at night time, and in all probability, he must have turned towards that direction only after he had heard the sound. If the medical evidence corroborates the version of P.W.1 there may be some basis to accept his evidence. In view of the contradictory nature of ocular testimony and the medical evidence, it will not be safe to base the conviction of the petitioners on the evidence of P.W.1 alone. It is not as though the petitioners have not come out with a specific defence. It is their case that the victim had suddenly jumped out of the bus and in that process he sustained injuries. It is also their case that as soon as they heard the noise the 2nd petitioner stopped the bus and then found the victim lying down with injuries. Even from the prosecution case it is clear that the bus had stopped within 10 feet from the bus stop. All these, factors coupled with the medical evidence probabilise the possibility of the victim attempting to get out of the bus, after the bus had started to move away from the bus stop, and therefore, it is not possible to hold, on the peculiar facts and circumstances of the case, that the defence version does not project another mode, in which, this incident could have taken place and more so when the medical evidence supports such a possibility.