The significance of actual and material evidence over theoretical possibilities in criminal trials, and the application of the rule of Res ipsa loquitor in confirming the conviction.

1. Petitioner was found guilty of offences punishable under S.279, S.337, S.304(A) IPC and S.117 of the Motor Vehicles Act. Charge was that he drove car K.L.K. 9898 in a rash and negligent manner, in a state of high intoxication along the Samkhumukham Seelantimukku road and rammed into the rear of a parked lorry K.L.A. 501 at or about 10.30 P.M. on 24-7-1981. Two persons in the front seat of the car died, and petitioner sustained injuries. The lorry was parked in front of the shop of PW2. PWs.1 to 5 saw the occurrence, and everyone of these witnesses identified petitioner as the driver. PW-1 sitting in his brother's shop, saw the car hit the lorry which was parked in front of the shop. He would say that petitioner was in the driver's seat and was heavily drunk. PW2 states that petitioner was in the driver's teat and that two youngsters were inside the car. PWs. 3 & 4 also deposed that the petitioner was the driver, PW5 clearly stated that petitioner who was the driver tried to open the door, that he could not, and that the witness and others got him out.

2. Learned counsel for petitioner submitted that petitioner was the only person alive, and that the police therefore made him the accused. Counsel argued that witnesses were procured by the relatives of the deceased to speak falsehood, for the purpose of making a claim under the Motor Vehicles Act. I am not inclined to accept this submission. It is not easily assumed that persons who are under oath will perjure, unless reasons are shown. Counsel submitted that witnesses could not have identified the petitioner. The occurrence was right in front of the shop and it is natural that attention of the witnesses would have been drawn to what happened in front of them.

3. Identification is challenged on other grounds too. Counsel referred to evidence to the effect that accused was shown to the witnesses, the next day. Argument is that police told witnesses who the accused was, and witnesses identified accused thus. Reference was made to the decision in Laxmipat Choraria and Others v. State of Maharashtra (AIR 1968 SC 938). Evidence of PWs.1 to 5 clearly shows that they had identified the accused at the time of occurrence. There is no reason why this evidence should not be accepted. What the investigating officer did on the subsequent day, which certainly is not the right thing to do, does not vitiate the identification evidence. It was then contended that according to PW12 all the three persons in the car were taken to the Medical College Hospital and therefore the case of PW3 that the accused was handed over to police on the night, cannot be accepted. Counsel submitted that there is no entry in the General Diary of the Police Station to show such handing over. No specific question was asked by either side to PW12 whether petitioner was handed over to Police. It may be a case where the police did not make proper entries in the General Diary. An improper act on the part of the investigating officer or the person in charge of the General Diary, is certainly no reason to reject the prosecution case It is certainly a matter for the superior officers in the department to enquire into and take appropriate action. I do not thick it necessary to go into the matter further in view of the evidence of PWs.1 & 5, regarding identification at the time of occurrence. As observed by Justice Mcreynolds:

"Courts ought not to increase the difficulties by magnifying theoretical possibilities. It is their province to deal with matters actual and material, to promote order, and not to hinder it by excessive theorising of or by magnifying what is not really Important." Criminal trial is:

"Something more then a game in which the Government may be checkmated and the game lost merely because its officers had not played the game according to the rule."

Identify of the petitioner as the person who drove the car on the fateful night is clearly established by the evidence of PWs.1 to 5 who are probable and