K.K.Mani v. The State rep.by the Sub Inspector of PoliceThalaivasal Police StationSalem District

2. A 'resume' of facts, which are absolutely necessary andgermane for the disposal of this Criminal Revision petition wouldrun thus:(i) The police laid the police report in terms of Section 173of Cr.P.C as against the accused for the offences under Sections279, 337 and 338 of I.P.C. Since the accused pleaded not guilty,trial was conducted. (ii) On the side of the prosecution, P.Ws.1 to 13 wereexamined and Exs.P1 to P8 were marked. On defence side, no oral ordocumentary evidence was adduced. Ultimately, the trial courtconvicted the accused and imposed sentences as under:------------------------------------------------------------------- OffencesSentence imposedFine amount-------------------------------------------------------------------(i) 279 IPC------ Rs. 250/- (in default to undergo one month simple imprisonment)(ii) 304-A IPCSix months simple Rs. 1,000/-imprisonment(in default to undergo one month simple imprisonment)-------------------------------------------------------------------The accused preferred appeal before the learned Additional Districtand Sessions Judge (Fast Track Court No.I), Salem, for nothing tobe dismissed. (iii) Being aggrieved by and dissatisfied with the convictionrecorded and the sentence imposed by the lower court, this revisionis focussed on various grounds, the gist and kernel, the nittygritty, the pith and marrow of them would run thus:Both the courts below committed error in appreciating theevidence.3. Heard the learned counsel for the revision petitioner andthe learned Additional Public Prosecutor.4. At this juncture, it is just and necessary to narrate theprosecution version of the incident. As revealed by the police https://hcservices.ecourts.gov.in/hcservices/ report, on 06.11.2003, at about 9.20 hrs (day time), the accuseddrove the Government transport corporation bus bearing No.TN-27-N-1302 in a rash and negligent manner along Attur - Kallakurichi Mainroad from west to east and dashed the cyclist Balachandran, whowas at that time riding his bicycle by having his child Arutchelvanas pillion rider so as to leave him at the Tagore MatriculationHigher Secondary School, and caused grievous injuries and otherinjuries to Balachandran and that the said Balachandran succumbedto his injuries on 12.11.2003 at the hospital.5. The points for consideration are as to:(i) Whether both the courts below were perverse infinding the accused guilty of the offences with which, hewas charged, without properly appreciating the oral anddocumentary evidence adduced before it?(ii) Whether both the courts below were unjustifiedin convicting the accused in the absence of the Doctorand the Motor Vehicles Inspector having been examined inthis case?Point Nos.1 & 2:6. Both the points are taken together for discussion as theyare inter-linked and inter-woven, inter-connected and entwined witheach other.7. The learned counsel for the revision petitioner wouldadvance and develop his argument by inviting the attention of thiscourt to the various parts of the evidence to the effect that thepolice cooked up the case as against the accused purely for thepurpose of enabling the legal heirs of the deceased to claimmaintenance; the occurrence could not have taken place in themanner narrated by the prosecution. P.Ws.6 and 7, Palanivel andSenthilkumar were only mahazar witnesses as per police records, butthey, were tutored to depose before the court as eye witnesses.PW1, the father-in-law of the deceased would depose as though thedriver after the accident stopped the vehicle and got down and sawthe incident, whereupon he sped away with the vehicle; whereas theother alleged witnesses would not speak in a similar manner; thedeposition of the alleged eye witnesses are artificial; the non-examination of the doctor to prove the post-mortem certificatewould lead to the inference that the cause of death might be due tosome other factors other than the accident referred to in thiscase; the Motor vehicles Inspector was not examined to prove theopinion of the Motor Vehicles Inspector recorded in the report thatthe accident was not due to any mechanical defect in the vehicleand accordingly he prayed for setting aside the judgment of both https://hcservices.ecourts.gov.in/hcservices/ the courts below and for acquitting the accused.8. Whereas the learned Additional Public Prosecutor wouldargue that the accused was guilty of the offences with which hewas charged and that no interference with the judgments of both thecourts below are warranted.9. The deceased Balachandran's father-in-law lodged the firstinformation report with the police, who registered the case inCrime No.662 of 2003 and investigated into the matter andultimately laid the police report. P.Ws.1 to 5 are the eye witnessto the occurrence and they, as per the findings of both the courtsbelow cogently and convincingly, coherently and clearly, and thattoo, without any material contradiction narrated the incidentbefore the court. 10. The learned counsel for the revision petitioner wouldsubmit that absolutely, there is no finding in the judgments ofboth the courts below that the accused drove the vehicle in a rashand negligent manner and caused the accident. It is a triteproposition of law that from the evidence available, if it ispalpably and pellucidly, glaringly and clearly understandable thatthere involved rash and negligence on the part of the accused indriving the vehicle and thereby causing the accident, there is noembargo that the same should not be countenanced by the Court.PW1, Poomalai, the person, who lodged the first information reportwith the police, would in his deposition narrate the incident insupport of the prosecution case and he would also state that thebus was driven by the driver speedily and he dashed it as againstthe said cyclist viz., Balachandran and caused the accident.However, he would add that, soon after the accident the driverstopped the bus and got down from it and thereafter he once againgot into the bus and sped away with it from that place. It is alsoin the evidence of PW1, that from the time of accidentBalachandran was in a coma stage. PW1 was cross-examined in acryptic way and the entire cross examination of PW1 is reproducedhere under for ready reference:@jhTh; gs;spf;F nkw;Fgf;fkhfj;jhd; tpgj;J ele;jJ/nghyPrhhplKk; ,ij jhd; brhd;ndd;/ Kjy; tprhuizapy;brhd;dij nghyP!; tprhuizapy; brhd;ndd;/ gs;spf;Tlk;te;J tpl;ljhy; nuhl;od; ,lJg[wk; ,Ue;J tyJg[wk; rhiyiaflf;f Kad;w nghJ jLkhwp. fPnH tpGe;J tpgj;J Vw;gl;lJvd;why; rhpay;y/ ehd; kUkfd; ,we;jth; vd;gjhy; bgha; g[fhh;bfhLj;J bgha; rhl;rp mspf;fpnwd; vd;why; rhpay;y@.(emphasis supplied) https://hcservices.ecourts.gov.in/hcservices/ As such, it is the defence of the accused that while the deceasedBalachandran was attempting to cross the road on his cycle, he losthis balance and fell down and sustained injuries. The depositionof PW2 would detail and delineate that the deceased Balachandranwas riding his bicycle by having his child as a pillion rider on itfrom West to East along the said Attur - Kallakurichi road byadhering to his left side; at that time, the said bus driven bythe accused was proceeding in the same direction and a lorry wasalso proceeding in the same direction in front of the said bus; assuch, the accused driver attempted to overtake the said lorry,however, he could not complete the overtaking in view of he havingseen one other bus coming in the opposite direction and in thatprocess he swerved the bus towards his left side in such a mannerthat the foot board of the bus dashed as against the cyclist andthe accident occurred. The cumulative effect of the deposition ofP.Ws.3 to 5 also would be broadly in consonance with the evidenceas narrated by PW2.11. The learned counsel for the accused would submit that theaccident could not have occurred in the manner described by thewitnesses for the reason that while overtaking the lorry, which wasproceeding in front of the said bus, the accused must have crossedthe middle of the road and on seeing one other bus coming in theopposite direction he could not have swerved so as to reach theextreme left side of the road and caused the accident and thatthere was no rash and negligence on the part of the driver and thewitnesses also have not spoken about it. However, the argumentsadvanced by the learned counsel for the revision petitioner cannotbe countenanced at all in view of the unrealistic approach involvedin the argument. Even as per the very plea of the accused, he wasrash and negligent and it is writ large.12. It is a common or garden principle that while driving abig vehicle like that of a passenger bus, if the driver wants toovertake a lorry proceeding in front of the said bus, the drivershould sound or honk the horn giving indication to the driver ofthe lorry to give way for him to over take. Only after gettinghand signal from the lorry driver, the accused ventured toovertake the lorry. But, in this case, it is palpably clear thatthe driver of the bus did not choose to resort to such a method.Had he resorted to such a procedure, certainly, he would not haveunsuccessfully and illegally attempted to overtake the lorry andthereafter on seeing the bus, taken such a retrograde step inswerving the vehicle towards left and in causing the accident. Assuch, owing to the accused driver's rash and negligence and alsocarelessness in driving the bus, he attempted to overtake the lorryand thereafter, on seeing one other bus coming in the oppositedirection swerved the bus towards the left and came in violent https://hcservices.ecourts.gov.in/hcservices/ conduct with the said cyclist and caused the accident. I am at aloss to understand, if this act of the accused is not termed as"rash and negligent" then what else could be termed so.13. Learned counsel for the accused cited the decision ofHon'ble Apex Court reported in 2001 (2) MWN (Cr.) SC 77 (MohammedAynuddina alias Miyam vs. State of Andhra Pradesh) to highlightthat the "rash and negligence" should not be presumed. However,the said judgment, is against the accused and not in favour of theaccused. An excerpt from it would run thus:"9. A rash act is primarily an over hasty act.It is opposed to a deliberate act. Still, a rash actcan be a deliberate act in the sense that it was donewithout due care and caution. Culpable rashness lies inrunning the risk of doing an act with recklessness andwith indifference as to the consequences. Criminalnegligence is the failure to exercise duty withreasonable and proper care and precaution guardingagainst injury to the public generally or to anyindividual in particular. It is the imperative duty ofthe driver of a vehicle to adopt such reasonable andproper care and precaution."As such, it is clear that the said act of the accused as discussedsupra would clearly exemplify and evince that he was rash andnegligent in driving the bus and in causing the accident. Nofather having a child on his cycle and that too, while taking thechild to the school would be rash and negligent or careless inallegedly crossing the road as suggested by the accused duringcross examination of witnesses. The defence theory is totallyantithetical to the preponderance of probabilities. I am fullyaware of the fact that the accused is not expected to prove beyondreasonable doubt the defence plea, but once the accused comesforward to put forth a plea, certainly it is subject to comment bythe prosecution as well as by the court. Here the defence theoryis to the effect that the bus did not even dash the cycle or camein contact with the cycle, but the deceased of his own accord whilecrossing the road lost his balance and fell down and ultimatelydied. Such a theory is glaringly and palpably unrealistic that noone could digest it as true. No doubt, the prosecution cannot pickholes in the defence plea and try to achieve success in thelitigative battle and it is the duty of the prosecution to provethe case beyond reasonable doubts. Here , in this case, P.Ws.1 to5 as discussed supra without any embellishment narrated theincident and both the courts below accepted it and believed theversion of the witnesses and recorded the conviction warranting nointerference by this court. https://hcservices.ecourts.gov.in/hcservices/

14. The learned counsel for the accused would submit that thetrial court simply assumed as though PW7 is a genuine eye witnesswhen in fact, he was as per police records, a mahazar witness. Nodoubt, in para No.15 of the judgment of the lower court whiledescribing the eye witnesses P.W.7 was also wrongly referred asone of the eye witnesses but in stricto sensu PW7 even though spokebefore the court as though he had seen the incident, he was not aneye witness to the occurrence as per police records. As such theevidence of PW7 should be excluded from consideration. Merelybecause of that error committed by the lower court, the entirefinding of the lower court cannot be looked askance at and on thatground, itself no acquittal can be passed.15. It is a trite proposition of law that as per the MotorVehicles Act, whenever an accident occurs involving a Motorvehicle, the driver of the said vehicle should stop the vehicle andhe cannot simply go away from the place. But, in this case, theaccused left the place of accident by taking the vehicle, whichitself is indicative of his guilty conscience.16.Learned counsel for the revision petitioner would citethe decision of this court reported in 2001 (2) MWN (Cr.249) (Sekarvs. State by Sub Inspector of Police, Ethapur, Salem District)in order to canvass the point, that there should be evidence toprove the rash and negligence on the part of the driver of thevehicle concerned.17. A bare perusal of the cited decision would reveal that inthat case, the court after acquitting the accused under Section 279of IPC, however curiously, convicted the accused under Section 304A of IPC and that was found fault with by the High court andpointed out that after acquitting the accused of the offence undersection 279 IPC, the lower court should not have convicted theaccused under Section 304-A of IPC. But, here the facts areentirely different as it is quite obvious from the above discussionand no more elaboration in this regard is required.18. The learned counsel for the accused also cited thedecision of the Karnataka High Court reported in 2000 Criminal LawJournal 2426 (State of Karnataka vs. Sadanand Parusharam Hosurkar),which is relating to the set of facts, where the deceased cyclistwas riding the bicycle along the centre of the road and it wasfound fault with by the High Court. But, here the facts areentirely different as it is quite obvious from the abovediscussion.19. The learned counsel for the accused also cited thedecision of this court reported in 1991 LW (Cr.)232 (Chandrasekarvs. State by Inspector of Police, Dharmapuri Police Station, https://hcservices.ecourts.gov.in/hcservices/ Dharmapuri) and pointed out that it is the duty of the prosecutionto prove the case beyond reasonable doubt.An excerpt from thesaid decision would run thus:"6. Both the courts below, while finding that therewas no proof either of rashness or negligence on the partof the petitioner, held that the doctrine of res ipsaloquitor, could be applied to the facts of this case.The decision of the Supreme Court in Rattan Singh vs.State of Punjab was relied upon. In that case, the ApexCourt held as here under:-"In our current conditions, the law underS.304-A IPC.... must have due regard to thefatal frequency of rash driving of heavy dutyvehicles and of speeding menaces. Thus viewed,it is fair to apply the rule of res ipsaloquitor, of course, with care".A catena of rulings on this subject positively showthat the one person who could offer an explanationregarding the nature of the incident was the accusedhimself. The explanation of the accused could also betaken note of in the background of the prosecutionevidence to find out if he had been rash or negligentwhile driving the lorry. Unfortunately, the petitionerhad not chosen to offer any explanation when he wasexamined under S.313 Cr.P.C. It is also the law that ifa person is driving the vehicle he is under a duty tocontrol it. He would be prima facie guilty of negligenceif the vehicle left the road and it was for the person,who was driving the vehicle, to explain the circumstancesunder which the vehicle had left the road. Thesecircumstances may be beyond control of the driver andmay, even exculpate him, but in the absence of such asituation the fact that the vehicle had left the roadwould be evidence of negligence on the part of thedriver.7. In a number of decided cases it has been heldthat as a rule, mere proof that an event had happened oran accident had occurred, the cause of which was unknown,was not evidence of negligence. But the peculiarcircumstances constituting the event or accident, in aparticular case, may themselves proclaim in clearly andunambiguously, the negligence of same body as the causefor the event or accident. It is only to such of thesecases that the maxim res ipsa loquitor may apply, if thecause of the accident was unknown and no reasonable https://hcservices.ecourts.gov.in/hcservices/ explanation as to the cause was forthcoming from theaccused. Further the event or accident must be of akind, which does not happen in the ordinary course ofthings, if those who have management and control, use duecare. It may be in such cases that the court must befurther satisfied that the event which caused theincident was within the control of the accused. Thereason is not far to seek, for, he would be in a betterposition to explain as to how the accident had occurred."A bare perusal of the said judgment including the aforesaidexcerpts would clearly indicate that the prosecution cannot bypleading the principle of res ipsa loquitor fob off theresponsibility to prove the case on the accused. In suchcircumstances, this court laid down the above dictum. Here thefacts as discussed supra would reveal and convey that there isoverwhelming evidence to establish that the accused was rash andnegligent in attempting to overtake the lorry, which was proceedingin front of him and as a sequela, he placed himself in a perilousand precarious situation and consequently, he allowed the vehicleto wobble and swerve towards the left and hit against the deceasedcyclist. In such a case, the prosecution has not merely relied onthe principles of res ipsa loquitor and try to fob off itsresponsibility on the accused but, on the other hand, theprosecution by proving its case got the onus of proof shifted tothe accused to prove his plea. But curiously enough the accusedhad not chosen to examine himself as witness to explain the factswithin his knowledge as per Section 105 of the Indian EvidenceAct. No passenger of the offending bus was examined and not eventhe conductor of the offending bus was examined. I am fully awareof the fact that in a criminal case, the accused is not expectedto examine himself as witness or examine any witness on his side.But, here, in the peculiar facts and circumstances of the case, theaccused went to the extent of taking certain plea and in such acase, after the prosecution having proved the rash and negligenceof the accused, failed even to prove the preponderance ofprobabilities of the defence plea or defence theory. 20. The learned Additional Public prosecutor cited thedecision of the Hon’ble Apex Court reported in 2007 (3) SCC 474(Rathnashalvan vs. State of Karnataka). An excerpt from it wouldrun thus:"7. Section 304-A applies to cases where there is nointention to cause death and no knowledge that the act donein all probability will cause death. The provision isdirected at offences outside the range of Sections 299 and300 IPC. The provision applies only to such acts, which https://hcservices.ecourts.gov.in/hcservices/ are rash and negligent and are directly cause of death ofanoher person. Negligence and rashness are essentialelements under Section 304-A. Culpable negligence lies inthe failure to exercise reasonable and proper care and theextent of its reasonableness will always depend upon thecircumstances of each case. Rashness means doing an actwith the consciousness of a risk that evil consequenceswill follow but with the hope that it will not. Negligenceis a breach of duty imposed by law. In criminal cases, theamount and degree of negligence are determining factors. Aquestion whether the accused's conduct amounted to culpablerashness or negligence depends directly on the question asto what is the amount of care and circumspection which aprudent and reasonable man would consider it to besufficient considering all the circumstances of the case.Criminal rashness means hazarding a dangerous or wanton actwith the knowledge that it is dangerous or wanton and thefurther knowledge that it may cause injury but done withoutany intention to cause injury or knowledge that it wouldprobably be caused.8. As noted above, "rashness" consists in hazarding adangerous or wanton act with the knowledge that it is so,and that it may cause injury. The criminality lies in sucha case in running the risk of doing such an act withrecklessness or indifference as to the consequences.Criminal negligence on the other hand, is the gross andculpable neglect or failure to exercise that reasonable andproper care and precaution to guard against injury eitherto the public generally or to an individual in particular,which, having regard to all the circumstances out of whichthe charge has arisen it was the imperative duty of theaccused person to have adopted.9. The distinction has been very aptly pointed out byHolloway, J., in these words:"Culpable rashness is acting with theconsciousness that the mischievous and illegalconsequences may follow, but with the hope thatthey will not, and often with the belief that theactor has taken sufficient precautions to preventtheir happening. The imputability arises fromacting despite the consciousness (luxuria).Culpable negligence is acting without theconsciousness that the illegal and mischievouseffect will follow, but in circumstances whichshow that the actor has not exercised the cautionincumbent upon him, and that if he had he would https://hcservices.ecourts.gov.in/hcservices/ have had the consciousness. The imputabilityarises from the neglect of the civic duty ofcircumspection". As such, the Hon’ble Apex Court’s judgment cited supra wouldclearly highlight and spotlight the fact that as to whatconstitutes the rashness and negligence on the part of the driverwhile driving the vehicle. Here the witness clearly spoke aboutthe rash and negligence of the driver in driving the bus. 21. It is a trite proposition of law that bigger the vehicle,bigger is the responsibility. Unarguably and unassailably,indubitably and incontrovertibly, the offending bus was a bigpassenger vehicle and while driving such a big vehicle along thepublic road and that too in an area, where there are educationalinstitutions, which are explicit from the sketch itself, theaccused driver should have been very careful. The very act of theaccused in driving the bus and dashing from behind the cyclist,would speak volumes about the rashness and negligence in drivingthe vehicle.22. The next point for consideration is as to the non-examination of the Doctor as well as the Motor Vehicles Inspectorand also as to the marking of Ex.P7, the post mortem report andEx.P8 the report of the motor vehicles inspector, through theinvestigating officer.23. Learned counsel for the revision petitioner would citethe following decisions and certain excerpts from them would runthus:(i) 1995-2-LW (Crl)493 (Chinnaian vs. State, by Inspect ofPolice (Rural) Vellore, N.A.A.District."2. The road accident had taken place on 12.5.88 at11.00 am in Pallikonda-Vellore Road between kilometres99/2 and 99/4. When the deceased Ramasamy was proceedingin the said road from west to east in his cycle, the busdriven by the revision petitioner from behind the cycle,dashed against the cyclist and killed him on the spot andthe bus also ran amuck after the accident towards thenorthern side, deviating from the main road. Twowitnesses viz., P.Ws.1 and 2 have spoken about theaccident. Both of them have spoken that when thedeceased was riding his cycle from west to east on theleft-hand side of the road, the bus had hit against him.But the evidence of P.W.1 was commented very much by thelearned counsel for the revision petitioner on the groundthat though he was in his land close to the place of https://hcservices.ecourts.gov.in/hcservices/ accident, he has admitted that he was cutting grass whenthe accident had taken place and only after hearing thenoise, he turned his eyes to the direction of theaccident. According to the learned counsel Mr.Gopinath,appearing for the revision petitioner, when P.W.1 admitsthat he happened to see the accident only after hearingthe noise, he might not have seen where the cyclist wason the raod at the time of the accident, and how the bushad hit against him. This argument is acceptable in viewof the fact that P.W.1 had turned his eyes to the placeof the accident only after the accident had taken place...............................................................................................................................................................................................................................................................But unfortunately, from the evidence of P.W.2alone, I am unable to hold that there was no mechanicalfailure in the bus. It is true that the Motor VehicleInspector's report Ex.P8 has been marked in this case butthe learned counsel appearing for the revision petitionerMr.Gopinath, contended that this report of the MotorVehicle Inspector has not been proved in the mannerrequired by law. The author of this report, namely, theMotor Vehicles Inspector was not examined but his reporthas been marked through the Investigating Officer P.W.4,who has simply stated that he received the information ofthe Motor Vehicles Inspector. The learned counselMr.Gopinath argued that under Section 294 Code ofCriminal Procedure, the formal proof of certain documentsneed not be by examining the author of the document butthe prosecution ought to have filed a list of suchdocuments calling upon the accused either to admit ordeny the genuineness of such documents and only when theaccused has not denied the genuineness and admitted thedocuments, the same could have been received in evidencewithout examining the witness connected with the documentbut in this case as this was not followed, Ex.P8 isinadmissible in evidence and the contents therein are notproved and therefore, it has to b taken and there is noevidence before the Court to hold that there was nomechanical failure in the bus. He also relies upon adecision of the Full Bench of the Allahabad High Court inSaddiq vs. State (1981 Criminal Law Journal 379) whereinthe Allahabad High Court has held that a document to bereceived without proof of the documents, shall bementioned in the list and the opposite party or hispleader shall be called upon to admit or deny hegenuineness of such procedure and only by such process, https://hcservices.ecourts.gov.in/hcservices/ the document can be received in evidence. In this case,the investigating officer, who is not connected with thecontents of this document, has simply produced it and thesame has been received though it was not objected by theaccused."(ii) 2001 (2) MWN (Cr.) 260 (Arumugam vs. State bySub Inspector of Police, Uttukkuli Police Station, ErodeDistrict)."3. The learned counsel appearing for the petitionersubmits that the prosecution did not succeed inestablishing the cause of death, since the prosecution didnot examine the doctor, who conducted the post-mortem onthe body of Palanisamy, but marked the post-mortemcertificate only through the investigating officer andtherefore, Ex.P7 cannot be looked into as the contents arenot proved. Similarly, the contents of Ex.P6, the reportalleged to have been given by the Motor Vehicles Inspectorwere also not proved and the said document was also markedonly through the investigating officer. The petitionerraised an objection at the trial state that these documentscould not be marked through the investigating officer, butthey have to be marked only through the persons, whoprepared these documents. I see every force in the saidcontention. Section 294 of the Code of Criminal Procedurecontemplates that where any document is filed before anycourt by the prosecution or the accused, the particulars ofevery such document shall be included in a list and theprosecution or the accused, as the case may be, or thepleader for the prosecution or the accused, if any shall becalled upon to admit or deny the genuineness of each suchdocument. Sub Section (2) of Section 294 Cr.P.C statesthat the list of documents shall be in such form as may beprescribed by the State government and Sub Section (3) ofSection 294 Cr.P.C contemplates that where the genuinenessof any document is not disputed, such document may be readin evidence in any inquiry, trial or other proceeding underthis code without proof of the signature of the person towhom it purports to be signed. The proviso to the saidSection states that the court may, in its discretion,requires such signature to be proved. Section 294 Cr.P.Calso will not help the prosecution in this case for it tocontend that no formal proof is required. When the abovedocument was marked without examining the author of thedocument, it was objected by the petitioner and therefore,it must be said that the documents were marked, without theconsent of the petitioner. Secondly, even if a document hasbeen marked under Section 294 Cr.P.C it must be in https://hcservices.ecourts.gov.in/hcservices/ accordance with the procedure contemplated under the saidsection, viz., that the list of documents in the said formprescribed by the State Government. It is to be rememberedat this stage that the Government of Tamil Nadu passed aGovernment Order in G.O.Ms.No.258 (Courts-V) dated8.2.1983, prescribing the proforma stating that thedocuments can be marked only in the form mentioned in theGovernment Order. This is an admitted case where theprosecution did not mark those documents in the said formand also there was objection on the side of the accused formarking those documents. Under similar circumstances, thelearned Single Judge in a judgment rendered on 13.11.1987in Crl.R.C.No.761 of 1984 held that marking the documentsin such fashion is illegal and the court cannot look intothe document as the contents of the documents are notproved by the prosecution. In this case, as theprosecution did not prove the contents of Ex.P6 and Ex.P7and therefore, they did not prove the case of death. I amof the view that the accused is entitled for an acquittal.Accordingly, he is acquitted. The bail bond, if anyexecuted by the petitioner, will stand cancelled. Therevision is allowed."(iii) 2001 (2) MWN (Cr.) 260 (Jerald vs. State byInspector of Police, Kancheepuram Taluk Police Station,Kancheepuram)"3. The learned counsel appearing for the petitionersubmits that the petitioner is entitled for acquittal sincethe prosecution has miserably failed to prove the cause ofdeath. Ex.P6, the post mortem certificate, was producedbefore the Court by the Investigating Officer and theDoctor, who conducted autopsy had not been examined and theprosecution has not given any reason for non-examination ofthe Doctor. According to him, the non-examination of theDoctor is fatal for the prosecution and the contents of thedocuments and inadmissible as they were not spoken to bythe person who prepared it. I see every force in thecontention of the learned counsel. The doctor, who issuedthe certificate, though according to the prosecutionconducted autopsy, was not examined and no explanation asoffered by the prosecution before the court, as to why hewas not examined. This court cannot presume the cause ofdeath as it cannot rely upon Ex.P6, as the said documentwas not proved in terms of the provisions of Evidence Act.As the cause of death is not proved, in my view, thepetitioner, is entitled for acquittal and he isaccordingly, acquitted. The revision is allowed". https://hcservices.ecourts.gov.in/hcservices/ Placing reliance on the aforesaid judgments, the learned counselfor the accused/revision petitioner would develop his argument tothe effect that non-examination of the Doctor as well as the MotorVehicles Inspector to prove the contents of Ex.P7 and Ex.P8respectively is fatal to the case of the prosecution as even thoughEx.P7 and Ex.P8 were marked through the investigating officer, thecontents of those documents cannot be held to have been proved.24. Whereas the learned Additional Public Prosecutor, wouldcite the decision of the Full Bench judgment of the Hon'bleAllahabad High court reported in 1981 Cri.L.J.379 (Saddiq andothers vs. State). An excerpt from it would run thus:"11. In Jagdeo Singh vs. State (1979 Cri LJ 236) aDivision Bench of this Court held "it was not permissibleto exhibit the post-mortem report under Section 294Cr.P.C and even if it was done the report could not beused as substantive piece of evidence until and unlessthe doctor concerned was examined in Court. Documentsthat Section 294, Cr.P.C contemplates reading in evidenceupon admission about genuineness by the opposite partyare only such documents which when formally proved speakfor themselves. It does not refer to any document, whicheven if exhibited cannot be read in evidence assubstantive evidence". With great respect, we are unableto agree with the view taken by this Court in the abovementioned case. As mentioned earlier, there is norestriction placed on documents in sub-section (1) ofSection 294, Cr.P.C and it applies to all documents filedby the prosecution or the accused. If the genuineness ofany document filed by the prosecution or the accusedunder sub-section 91) of Section 294, Cr.P.C is notdisputed by the opposite party sub-section (3) of Section294, Cr.P.C is applicable and it may be read assubstantive evidence. It is true that prior to thecoming into force of the Code of Criminal Procedure, 1973the post-mortem report after it was proved was notsubstantive evidence but only corroborated the statementof the doctor made in court and even now if thegenuineness of the post-mortem report is disputed by theaccused, the doctor must be examined to prove theinjuries found on the body of the deceased and also thepost-mortem report and the post-mortem report may only beused to corroborate or discredit his testimony which isthe substantive evidence. This, however, cannot lead tothe conclusion that the post-mortem report cannot be readas substantive evidence under sub-section (3) of Section294, Cr.P.C if its genuineness is not disputed by theaccused. As already mentioned, the very object of https://hcservices.ecourts.gov.in/hcservices/ enacting Section 294 Cr.P.C would be defeated if thesignature and the correctness of the contents of thepost-mortem report are still required to be proved by thedoctor concerned even if its genuineness is not disputedby the accused. Section 294 Cr.P.C is clear andunambiguous. It is only when the genuineness of thepost-mortem report filed by the prosecution is notdisputed by the accused that sub-section (3) of Section294, Cr.P.C is applicable and the post-mortem report maybe read as substantive evidence and the signature and thecorrectness of its contents need not be proved by thedoctor concerned. We are, therefore, clearly of theopinion that if the genuineness of the post-mortem reportfiled by the prosecution under sub-section (1) of Section294, Cr.P.C is not disputed by the accused, it may beread as substantive evidence under sub-sec(3) of Section294, Cr.P.C."A bare perusal of the judgment of the Full Bench of the Hon'bleAllahabad High Court would reveal that in a case where there is noobjection by the accused for a document such as post mortem report,the accused cannot subsequently, challenge the same on the groundof non-examination of the doctor concerned. In fact, the FullBench, reversing the earlier judgment of the same High Courtrendered the said judgment. This court in the decision reported in1995-2-LW (Crl.)493 relied upon the Full Bench decision of theHon'ble Allahabad High Court.25. Learned Additional Public Prosecutor also cited the FullBench judgment of the Hon'ble Rajasthan High Court reported in1996, Cri.L.J, 2015 (Shabbir Mohammad vs. State of Rajasthan),which is in consonance with the Full bench judgment of the Hon'bleAllahabad High court.26. The sum and substance of the decision cited on eitherside set out supra would clearly exemplify that mere marking of adocument would not tantamount to proving the entire contents of thedocument; in the event either of the party to the criminalproceedings calling upon the other party to admit or deny thegenuineness of the document and in the event of the opposite partyadmitting the genuineness of the document, it could be taken assubstantive evidence without any further proof.However, in thiscase, both the documents, viz., Ex.P7, the post mortem report andEx.P8, the report of the Motor Vehicles Inspector have been markedthrough the Investigation officer without any objection forthcomingfrom the accused side, even though the accused was defended by anAdvocate. Normally, at the time of marking documents, to which theaccused does not signify his consent, there should be objection andsubject to objection it should be marked and while deciding the https://hcservices.ecourts.gov.in/hcservices/ case, finally, the said objection also would be considered. At thisjuncture, I would like to recollect the Hon’ble Apex court’sjudgment reported in AIR 2001 Supreme Court 1158 (Bipin ShantilalPanchal vs. State of Gujarat and another). An excerpt from itwould run thus:"13. When so recast, the practice which can be abetter substitute is this: Whenever an objection israised during evidence-taking stage regarding theadmissibility of any material or item of oralevidence the trial court can make a note of suchobjection and mark the objected document tentativelyas an exhibit in the case (or record the objectedpart of the oral evidence) subject to such objectionsto be decided at the last stage in the finaljudgment. If the Court finds at the final stage thatthe objection so raised is sustainable the Judge orMagistrate can keep such evidence excluded fromconsideration. In our view there is no illegality inadopting such a course. (However, we make it clearthat if the objection relates to deficiency of stampduty of a document the court has to decide theobjection before proceeding further. For all otherobjections the procedure suggested above can befollowed.)14. The above procedure, if followed, will havetwo advantages. First is that the time in the trialcourt, during evidence-taking stage, would not bewasted on account of raising such objections and thecourt can continue to examine the witnesses. Thewitnesses need not wait for long hours, if not days.Second is that the superior court, when the sameobjection is recanvassed and reconsidered in appeal orrevision against the final judgment of the trialcourt, can determine the correctness of the view takenby the trial court regarding that objection, withoutbothering to remit the case to the trial court againfor fresh disposal. We may also point out that thismeasure would not cause any prejudice to the partiesto the litigation and would not add to their misery orexpenses."(emphasis supplied)However, in this case, on the accused's side, objection was notraised at the time of marking. The core question arises as towhether, such non raising of objection could be equated to https://hcservices.ecourts.gov.in/hcservices/ admitting the genuineness of the document, within the meaning ofSection 294 (1) of Cr.P.C. 27. In the Full Bench judgment of the Allahabad high Courtand Rajasthan High Court, the counsel for the accused expressly hadgiven his consent, actually, it constituted consent under Section294 (1) of Cr.P.C. But, in this case, there is no such expressconsent obtained from the learned defence Advocate or the accusedand in such a case, it is not permissible to hold that meremarking of document without any objection from the accused's sidewould tantamount to admitting the genuineness of the document underSection 294 (1) of Cr.P.C.28. I would like to strongly condemn the practice of theprosecuting agency in simply ignoring the significance of Section294 of Cr.P.C. In this case, no indication is found as to why theDoctor and the Motor Vehicles Inspector were not examined on theside of the prosecution. In such a case, the prosecution agencythrough the investigating officer at least should have highlightedthe reason for such non-examination and even that exercise was notdone. Whenever a post mortem certificate or any other document ismarked through the investigating officer, reason should be elicitedout from the investigating officer by the prosecution agency as towhy those documents are constrained to be marked through theinvestigating officer and not through the official/ expertwitnesses concerned and the prosecuting agency and theinvestigating agency are duty bound to see that alternativemeasures of proving the post mortem reports and other documents areresorted to. But, in this case, no such steps have been taken,which shows the sheer callousness on the part of the prosecutingagency as well as the investigating agency in handling the matterand it required to be condemned in unmistakable terms. I amconstrained to point out that even while recording the 161statement, the investigating officer has not taken steps to elicitout from the Doctor, as to what type of treatment was given in thiscase and the investigating agency had not taken steps to placebefore the Court as to what treatment was given to the injured eversince he was admitted in the hospital till his death. Invariablyin cases of deaths occurring after considerable days from the dateof occurrence, it should be explained by the prosecution thatdespite proper treatment death occurred and then only the courtcould be made to believe that the death was due to the injurysustained at the time of occurrence only. But, in this case, suchan evidence is badly missing.29. It is not the case of the accused that the accidentoccurred due to mechanical defect in the vehicle. In the decisionof this court reported in 1995-2-LW (Crl.)493, the learned Judge https://hcservices.ecourts.gov.in/hcservices/ took into account the fact that the offending vehicle ran amuck andin fact it ran down the road around 30 feet northern side of theroad. In such circumstances, the learned Judge of this courtexpected the evidence of the Motor Vehicles Inspector, which wasmissing in that case. But here, absolutely, there is not even anysuggestion during cross examination or any statement made underSection 313 of the Code of Criminal Procedure to the effect thatthe accident occurred due to the mechanical defect in the bus.Hence, non-examination of the Motor Vehicle Inspector in this caseis not fatal to the case of the prosecution. At this juncture, Iwould like to make it clear that in this case ocular evidence isclear relating to the rash and negligent act of the accused indriving the bus as held supra.30. The learned counsel for the revision petitioner wouldconvincingly argue that even though the accident occurred on06.11.2003, the injured died on 12.11.2003 and absolutely, there isnothing to demonstrate that proper medical care was given anddespite that the cyclist succumbed to the injuries sustained byhim, at the time of the accident. 31. It is a trite proposition of law that to prove theoffence under Section 304 A of IPC, there should be directevidence that the injury sustained by the injured at the time ofaccident resulted in his death. In case of instantaneous death atthe spot itself, this issue would not arise at all. The court inthe facts and circumstances of the case could rely on the eyewitnesses, that the deceased at the time of accident, sustainedgrievous injuries and that too in view of the fact that thegrievous injuries are found set out in Ex.P7, the post mortemreport also and they are extracted here under for readyreference:"Body of male, moderately nourished. Suturedlacerated vital wound 5 cm length over (R) frontal area.SDH, SAH present over both cerebral hemisphere. Trachea,Hyoid in tact. Stomach – 20 ml of greenish yellow fluid.No specific smell, muco sacorgen finger and toe, nailsintact cyanosed. Small Intestine Yellowish enzyme, nospecific smell, muco sacorgemed. All internal organs c/scongested. Pelvis, Spinal cord in tactOpinion: Died of head injury".The description of injuries in Ex.P7, evinces and highlights thatthe deceased sustained grievous injury including head injury, inthe accident and that clearly attracts section 338 of IPC. From the first information report as well as the deposition of thewitnesses, one could clearly understand that in the accident, the https://hcservices.ecourts.gov.in/hcservices/ deceased sustained fracture and he went into coma immediately; andin such a case, even though technically, the opinion of the doctorfound spelt out in the post mortem report Ex.P7 cannot be held tohave been proved, nonetheless, to the limited extent of injurieshaving been described therein, can be taken note of coupled withthe deposition of the witnesses referred to supra who spoke aboutthe grievous injuries sustained by the deceased.32. At this juncture, I would like to refer to the decisionof the Hon'ble Apex Court reported in AIR 1989 SC 702 (PrithviChand vs. State of Himachal Pradesh). An excerpt from it would runthus:"4. .......... Section 32 of the Evidence Actprovides that when a statement, written or verbal, is madeby a person in the discharge of professional duty whoseattendance cannot be procured without an amount of delay,the same is relevant and admissible in evidence. Besides,since the carbon copy was made by one uniform process thesame was primary evidence within the meaning ofExplanation 2 to Section 62 of the Evidence Act.Therefore, the medical certificate Ex.P-E was clearlyadmissible in evidence. That apart, there is strong,reliable and dependable evidence of the prosecutionwitnesses, which clearly proves that the prosecutrix wasraped by the appellant."Following the said Hon'ble Apex Court judgment, the Hon'bleDivision Bench of the Orissa High Court in the judgment reported in2002 Crl.L.J.3701 (Kanista Barik vs. State of Orissa), held asunder:" 10. ...................AIR 1989 SC 702: (1989CriLJ 841) (Prithvi Chand vs. State of HimachalPradesh), where it has been held as follows (para 4):- "Section 32 of the Evidence Act providesthat when a statement, written or verbal, ismade by a person in the discharge ofprofessional duty whose attendance cannot beprocured without an amount of delay, the sameis relevant and admissible in evidence."In the case at hand, attendance of the MedicalOfficer, who conducted autopsy over the dead body of thedeceased and submitted Ext.17, could not be procuredwithout an amount of delay or expense which under thecircumstances of the case, appeared to the learned trialJudge unreasonable for which no illegality or https://hcservices.ecourts.gov.in/hcservices/ irregularity has been committed by him in admittingExt.17 into evidence under S.32 of the Indian EvidenceAct. In the light of the proposition of law, the post-mortem examination report (Ext.17) cannot be brushedaside merely for the reason that the Doctor whoconducted the autopsy over the dead body of the deceasedhas not been examined and, in that view of the matter,we are cock sure that the deceased died a homicidaldeath. Accordingly, we hereby affirmed that thefindings of the learned trial Judge that the injuries,as per Ext.17, were ante-mortem in nature and thedeceased died a homicidal death."A plain reading of those decisions also would support the viewtaken by me that for the purpose of understanding as to what areall the injuries sustained by the deceased, the recording of theinjuries by the Doctor in the post mortem certificate isadmissible in evidence and that too, in the wake of post-mortemcertificate having been marked without any objection from thedefence side. However, the opinion of the Doctor is inadmissiblein evidence, in view of the said Doctor having been not examinedbefore court or at least the portion of the opinion of the Doctorhaving been not proved in the way known to law as observed supra.33. Irrespective of the accused taking any plea , it is theduty of the prosecution that the death occurred on 12.11.2003 wasthe direct result of the injuries sustained by the deceased andthat despite proper treatment given, he succumbed to the injuries.That crucial evidence is missing in this case.Had the doctorbeen examined, the relevant facts would have been brought tolimelight. In fact the prosecution should have produced themedical records or at least examined the Doctor who gave treatmentand should have highlighted that despite proper treatment, theinjured died due to the injuries sustained by him in the accident.In such circumstances, I am of the considered opinion that theprosecution miserably failed to prove the offence under Section 304A of IPC. However, it could be held that the prosecution provedonly the offence under Section 338 of IPC coupled with the oneunder Section 279 of IPC.34. Accordingly, both the courts below were perverse ingiving a finding that the accused committed the offence underSection 304-A IPC. As such, the judgments of both the courtsbelow are modified only to the extent of replacing the convictionrecorded under Section 304-A of IPC into one under section 338 ofIPC and the conviction recorded under Section 279 IPC is confirmed.35. Now, the question arises as to what should be thepunishment. https://hcservices.ecourts.gov.in/hcservices/

36. Heard both sides relating to the sentence to be imposedin view of the fact that the offence is held to have been committedonly under Section 338 of IPC.37. Learned counsel for the revision petitioner would prayfor releasing the revision petitioner under the provisions ofProbation of Offenders Act, in view of the fact that still theaccused revision petitioner is in employment and any punishmentwould be delirious to his employment. 38. In view of the decision of the Hon'ble Apex Courtreported in AIR 2000 Supreme Court 1677 (Dalbir Singh vs. State ofHaryana and others), the provisions of the Probation of OffendersAct cannot be extended to accident cases where death occurred. Anexcerpt from it would run thus:"13. Bearing in mind the galloping trend in roadaccidents in India and the devastating consequencesvisiting the victims and their families. CriminalCourts cannot treat the nature of the offence underS.304-A, IPC as attracting the benevolent provisions ofS.4 of the PO Act. While considering the quantum ofsentence, to be imposed for the offence of causingdeath by rash or negligent driving of automobiles, oneof the prime considerations should be deterrence. Aprofessional driver pedals the accelerator of theautomobile almost throughout his working hours. Hemust constantly inform himself that he cannot afford tohave a single moment of laxity or inattentiveness whenhis leg is on the pedal of the vehicle in locomotion.He cannot and should not take a chance thinking that arash driving need not necessarily cause any accident;or even if any accident occurs it need not necessarilyresult in the death of any human being; or even if suchdeath ensues he might not be convicted of the offence;and lastly that even if he is convicted he would bedealt with leniently by the Court. He must always keepin his mind the fear psyche that if he is convicted ofthe offence for causing death of a human being due tohis callous driving of vehicle he cannot escape fromjail sentence. This is the role which the courts canplay, particularly at the level of trial courts, forlessening the high rate of motor accidents due tocallous driving of automobiles. 14. Thus, bestowing our serious consideration onthe arguments addressed by the learned counsel for theappellant we express our inability to lean to the https://hcservices.ecourts.gov.in/hcservices/ benevolent provision to S.4 of the PO Act. The appealis accordingly dismissed."As such, even though in this case, for technical reasons as set outsupra conviction under Section 304-A is turned out to be notsustainable and the conviction could be recorded only under Section338 IPC, nonetheless one cannot lose sight off the fact that thisis a Motor Vehicle accident case, wherein a person died.39. In view of the fact that the accused is still inemployment, I am of the view that imposing fine alone would meetthe ends of justice. Accordingly, the accused is directed to pay asum of Rs.1,000/- (Rupees one thousand only) within one month fromthe date of receipt of a copy of this order for the offencecommitted under Section 338 of IPC, in default to undergo simpleimprisonment for a period of three months. The conviction recordedunder Section 279 of IPC and the sentence imposed by the trialcourt there under and as confirmed by the Appellate Court, shallbe in tact.Sd/Asst.Registrar/true copy/Sub Asst.Registrarvj2To1. The Additional District and Sessions Judge (Fast Track Court No.I),Salem 2.-Do- Thro' The Prl.District & Session Judge, Salem.3. The Judicial Magistrate No.II, Attur.4.-Do- Thro' The Chief Judicial Magistrate, Salem.5. The Public Prosecutor, Madras.6.The Sub-Inspector of Police, Thalaivasal Police Station,Salem District.1 cc To Mr.S.Ayyathurai, Advocate, SR.27608Crl.R.C.No.173 of 2006kk(co)pmk.20.7.2009.