IMPORTANT POINT
The principle of res ipsa loquitur cannot substitute for proof of negligence in criminal cases, and reliance on inadmissible evidence leads to wrongful conviction.

ORDER :

The challenge in this Crl. Revision Petition is to the judgment dated 16.08.2005 passed by the Judicial First Class Magistrate Court, Ranny, in C.C.No.261 of 2002 and confirmed by the Additional Sessions (Adhoc) Fast Track Court-II, Pathanamthitta, in the judgment dated 17.03.2007 in Crl.Appeal. No.281 of 2005. The revision petitioner faces offences under Sections 279, 337, 338 and 304(A) of the Indian Penal Code. The trial Court convicted him for the above-said offences and sentenced to undergo various terms of imprisonment.

Prosecution Case

2. The accused was the driver of a private bus bearing Regn No. KL-3/A-466. He drove the bus in a rash and negligent manner, endangering human life through Vadasserikara-Pampa Public Road from east to west on 06.07.2001 at 11.20 am, and the vehicle hit a KSRTC bus bearing Registration No.KL-15/1295 at Murikkayamukku in Perunad Village causing the death of two persons and hurt and grievous hurt to around 26 persons who were travelling in the KSRTC bus.

3. On the side of the prosecution, PWs 1 to 30 were examined. The prosecution also proved Exts.P1 to P41.

4. PW1 gave Ext.P1 FIS. He was a traveller in the KSRTC bus. He sustained injuries in the accident. He did not support the prosecution case that the accused drove the vehicle in a rash and negligent manner. The occurrence witnesses, PWs 2 to 9, 12 and 13 to 15 also did not support the prosecution.

5. PWs 10, 11, 16 and 17 identified the accused as the driver who drove the offending vehicle. PW2, the driver of the KSRTC bus, stated that the bus driven by the accused hit the bus driven by him. He drove the vehicle in speed, the witness added.

6. PW16, another injured in the incident, deposed that the incident occurred due to the rash driving of the offending vehicle by the accused. PW17 stated that the over-speed of the vehicle driven by the accused resulted in the accident.

7. The learned trial Judge heavily relied on Ext.P3 scene mahazar to come to a conclusion that the description of the scene of occurrence would show that the offending vehicle had gone to the wrong side, causing the incident. Applying the principle res ipsa loquitur, the learned Magistrate came to the conclusion that the prosecution has succeeded in proving its case beyond reasonable doubt. Ext.P3 scene mahazar narrated that the width of the tar road was 8m15cm, and the road margin had a width of 2m20cm on the north and 2m65cm on the south. In Ext.P3, it is noted that the right wheel of the private bus was found standing 43cm to the north west towards the place of occurrence. It is also noted therein that the front side of the private bus hit the front right side of the KSRTC bus behind its right wheel. Relying on Ext.P3 scene mahazar, the learned Magistrate, came to the conclusion that the incident occurred beyond the middle of the tar road towards the north. Therefore, the learned Magistrate concluded that the private bus went to the wrong side of the road.

8. The learned counsel for the revision petitioner relied on the following grounds to contend that the findings of the trial Court and the Sessions Court are untenable in law.

(a) The contents of Ext.P3 scene mahazar have not been proved by way of admissible evidence.

(b) Criminality cannot be presumed with the aid of the principle of res ipsa loquitur.

(c)The evidence that the accused drove the vehicle at high speed is not a ground to come to the conclusion that the accused drove it in a rash and negligent manner.

9. The ‘evidence’ consists of oral evidence and documentary evidence. The relevant facts in the case can be established either by oral evidence or documentary evidence. As per Section 59 of the Evidence Act, all facts, except the contents of documents or electronic records, may be proved by oral evidence. Section 60 of the Evidence Act says that oral evidence must, in all cases, whatever, be direct.

10. In the present case, the crucial document relied on by the trial Court, Ext.P3 scene mahazar, contains the