Insufficient specific evidence of rash/negligent driving requires acquittal under Sections 279, 304A IPC despite conviction below.

ORDER

The petitioner is the accused in C.C.No.134 of 2004 on the files of the Judicial First Class Magistrate Court, Ranni. He was convicted and sentenced by the learned Magistrate for the commission of the offences under Sections 279 and 304A IPC and Section 3(1) read with Section 181 of the Motor Vehicles Act. The prosecution case is that the petitioner drove a goods autorickshaw in a rash and negligent manner likely to endanger human life through Ittiyappara - Aithala road at about 9.00 pm on 14.01.2002, and caused the above vehicle to hit against a person by name ‘Manikandan’, who was pushing a four-wheeler cart through that road, resulting in serious injuries leading to his death.

2. In the trial before the learned Magistrate, the prosecution examined 10 witnesses as PWs 1 to 10, and brought on record 11 documents as Exts.P1 to P11. By relying on the aforesaid evidence, the learned Magistrate found the petitioner guilty of commission of the aforesaid offences. Accordingly, he was sentenced to Simple Imprisonment for two years under Section 304A IPC, Simple Imprisonment for three months under Section 279 IPC, and fine Rs.500/- under Section 3(1) read with Section 181 of the Motor Vehicles Act. Though the petitioner challenged the aforesaid verdict in appeal, the learned Additional Sessions Court (Adhoc), Fast Track - II, Pathanamthitta, declined to interfere with the findings of the learned Magistrate. Accordingly, the appeal was dismissed confirming the conviction and sentence awarded by the Trial Court. Aggrieved by the above concurrent verdicts of the courts below, the petitioner is here before this Court with this revision petition.

3. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor representing the State of Kerala.

4. Among the ten witnesses examined from the part of the prosecution, PW2, is the one and only witness, who testified before the Trial Court about the cause of the accident. To the specific question put by the learned Assistant Public Prosecutor, PW2 stated that the drunken driving of the autorickshaw by the petitioner was the cause of the accident. However, the prosecution has no such case that the petitioner had consumed alcohol at the time when he was driving that autorickshaw when the accident took place. It is true that PW2 has answered to the further questions of the learned Assistant Public Prosecutor that the petitioner ought to have been cautious in driving the autorickshaw so that the accident could have been averted. But, the aforesaid statement is not sufficient to bring home the requirement of rash and negligent act as envisaged under Section 304A IPC. The aforesaid anomaly in the evidence of PW2 had not been taken into account by the Trial Court or the Appellate Court. It appears that the Trial Court as well as the Appellate Court relied on the evidence of PW2 to convict the petitioner for the offence of rash and negligent driving, even though the statement of PW2 did not contain the requisite particulars to attract the ingredient of rash and negligent driving. Therefore, the conviction and sentence awarded by the courts below for the offences under Sections 279 and 304A IPC are liable to be set aside. However, the offence under Section 3(1) read with Section 181 of the Motor Vehicles Act, charged against the petitioner, will lie since he was not able to produce his driving licence to show that he was authorized to drive a goods autorickshaw at the time when the accident took place.

In the result, the revision petition stands allowed in part as follows :-

(i) The concurrent findings of conviction and sentence of the courts below, for the offence under Sections 279 and 304A IPC, are hereby set aside.

(ii) The petitioner / accused is acquitted of the offences under Sections 279 and 30