IMPORTANT POINT
Evidence given by a witness in a previous judicial proceeding or in a later stage of the same judicial proceeding, when the witness is dead, is relevant for the purpose of proving the matter, provided the witness examined by the prosecution was subjected to cross-examination. Hence, the evidence adduced by PW3 cannot be relied on to enter a finding that the accused drove the offending vehicle in a rash and negligent manner.

ORDER :

The revision petitioner is the accused in CC.No.156/1994 on the file of the Judicial First Class Magistrate Court-V, Kozhikode and the appellant in Crl.Appeal No.580/2001 on the file of the second Additional Sessions Court, Kozhikode. The offences alleged against the accused are punishable under Sections 279, 337, 338 and 304A of the IPC.

2. The prosecution case in brief is that on 19.1.1993 at about 3 pm., the revision petitioner drove a stage carriage bus bearing registration No.KLM-7408 in a rash and negligent manner through the Ramanattukara National High Way and when it reached in front of the Poovannur mosque at Velipram, the driver took it to the wrong side of the road and the bus hit against a mini bus bearing registration No.KL-11/7711 and due to the impact of the accident, the passengers of both vehicles sustained simple and grievous injuries and the driver of the mini bus and one of the passengers therein succumbed to the injuries.

3. When the accused entered appearance before the trial court, he was furnished with copies of the police report and other documents. Upon pleading not guilty to the charge, the entire evidence was taken. By judgment dated 29.4.95, the accused was convicted and sentenced to undergo imprisonment for various counts stated supra. The accused preferred Crl. Appeal No.161/1995 before the Court of Session, Kozhikode. The appeal was allowed and consequently the conviction and sentence passed by the trial court was set aside and the case was remanded back for fresh disposal in accordance with the law. As directed by the Sessions Court, the prosecution examined PW15 and marked Exts.P29 and P30. Further, PWs.1, 2, 5 and 11 were recalled for cross-examination and they were cross-examined. After their examination, the learned counsel for the accused filed a witness list to examine witnesses on his side. It was allowed and summons was ordered. However, no batta was deposited by the accused and hence the defence evidence was closed.

4. The total number of witnesses examined from the side of prosecution was PWs.1 to 15 and Exts.P1 to P30 and MO1 series. On appreciation of the evidence, the learned Magistrate found the accused guilty of the offences punishable under Sections 279, 337, 338 and 304A of the IPC. Accordingly, he was sentenced to undergo simple imprisonment for a period of two years for the offence punishable under Section 304A of the IPC, simple imprisonment for six months for the offence punishable under Section 279 of the IPC and simple imprisonment for a period of six months for the offence punishable under Section 338 of the IPC. No separate sentence was awarded under Section 337 of the IPC. It was further directed that the sentences should run concurrently. The revision petitioner filed Crl.Appeal No.580/2001 before the Sessions Court, Kozhikode division. The appellate court dismissed the appeal confirming the conviction and sentence imposed by the trial court.

5. Heard Sri.Firoz.K.M., the learned counsel for the revision petitioner and Sri.M.S.Breez, the learned Senior Public Prosecutor for the respondent-State.

6. The learned counsel for the revision petitioner Sri.Firoz.K.M. contended that the two courts below failed to consider the relevant facts while passing the conviction and sentence. It was further contended that the accused had not caused hurt to any person by doing acts so rashly or negligently so as to endanger human life or personal safety of others. According to the learned counsel for the revision petitioner, the persons who had sustained injuries in the accident moved claim petitions before the Motor Accidents Claims Tribunal alleging contributory negligence. When the witnesses pleaded contributory negligence to get appropriate compensation from the Tribunal, the prosecution was obliged to produce sufficient materials before the court to prove that the accused drove the offending vehicle in a rash and negligent manner. When contributory negligence is alleged, according