S. Padmanabhan, J.
1. The object of revisional jurisdiction is to afford a paternal or supervisory power to correct miscarriage of justice arising from misconception of law, irregularity of procedure, lack of proper precautions, etc., which has resulted in some injury or undeserved hardship. To appeal is a statutory right. But that is not the case with revisional jurisdiction. In revisional jurisdiction, it is for the Court to interfere in exceptional cases where it seems that some real substantial injustice has been done. Violation of fundamental rules in the matter of appreciation of evidence resulting in miscarriage of justice is one of the instances where the High Court is justified in interfering for the purpose of revising the decision of a subordinate court in order to correct the injustics that has happened. If a particular fact is decided totally in the absence of evidence or misconstruing the evidence on record totally, the High Court may be justified in interfering. At the same time the mere possibility of another view on a particular point is no reason for interference.
2. The presumption of law is that a person is innocent unless and until otherwise found and convicted by a Court of law. That presumption is available even to an accused who is charge-sheeted for rashness and negligence in driving a motor vehicle which resulted in injury or loss of life to pedestrians or others. Simply because an incident happened which resulted in injury or death to somebody, it cannot be taken for granted that the driver of the vehicle involved in the incident is guilty of the crime. There may be exceptional cases where the rule res ipsa loquitur applies. In such cases the proved facts and circumstances may speak for themselves, and the Court may be justified in coming to the available conclusions in the absence of evidence otherwise. Ordinarily it is for the prosecution to establish the guilt of the accused beyond reasonable doubt. In a case of rash and negligent driving, the duty of the prosecution does not end by proving the rashness or negligence on the part of the driver. It must also be proved that the rashness and negligence was responsible for the incident and the consequent injury or death. The mere suspicion from the circumstances that the incident happened in a particular way may not be sufficient. There must be direct nexus between the death or injury and the rash or negligent act. There is no prescription that drivers of motor vehicles drive them rashly and negligently. If a pedestrian suddenly crosses the road without taking note of the approaching vehicle, there is every possibility of his dashing against the vehicle without the driver becoming aware of it. The driver may not be able to avert the accident whatever care he takes. Other similar instances can also arise. There is no presumption of negligence from the mere fact that a man is knocked down and killed by a motorist.
3. The revision petitioner was charge-sheeted in C.C. 629 of 1977 before the Judicial First Class Magistrate, Ponnani for having committed offences punishable under Sections 279 and 304A, Penal Code. The charge against him was that on 12-9-1977 at about 1.30 p.m. he drove a lorry KRE 1818 rashly and negligently from north to south through Kuttippuram-Edappal Road resulting in the lorry hitting against the boy. On the way to the hospital, the boy died. On the side of the prosecution, 8 witnesses were examined and Exts. P1 to P6 were marked. The learned Magistrate found the revision petitioner guilty. He was sentenced to undergo rigorous imprisonment for three months for the offence under Section 304A and to pay a fine of Rs. 300/- with a default sentence of rigorous imprisonment for two months. In Crl. A. 76 of 1979, the Sessions Judge, Maneri confirmed the conviction and sentence and dismissed the appeal. Hence he came up in revision.
4. I have heard both sides and perused the oral and documentary evidence. It appears that both the Courts below did not consider or appreciate the evidence properly. There is misreading of evidence. Both the Courts seem to have gone under the impression that many things which are not found in the evidence are established. Many factors which ought to have been considered in favour of the accused were either lost sight of or omitted.
5. PWs 1 to 4 are the occurrence witnesses. Of them, PW 1 is brother of the father of the deceased boy. Deceased boy along with a few other children was walking from north to south through the western side of the road. It was at that time that the accident happened. PW 1, even according to his own version, was going ahead of the boy in the same direction. He was about 25 ft. ahead. He said that he heard a sound and looked back to find the boy lying in the tarred road with injuries. From that statement itself, it is clear that he had not actually seen the incident and was incompetent to swear to anything regarding rashness or negligence of the driver. He has stated that he does not know whether the deceased boy went to the middle of the road or the lorry went to the wrong side resulting in the accident. But his evidence also seems to have been accepted by both the Courts below for the purpose of finding rashness or negligence. Such an appreciation could be had only by reading into the evidence of PW 1 something which is actually not there.
6. What is seen from, the evidence of PWs 1 to 4 as well as the scene mahazar and the attendant circumstances is that the tarred portion of the road is having a width of nearly 7 metres. There are untarred margins on either side of the road. So also it is in evidence that the road was straight and obstructions were not there from other vehicles. Accepting the evidence of PWs 1 to 4, both the courts below found that the revision petitioner was driving the vehicles rashly and negligently through the wrong side of the road for the purpose of hitting the vehicle against the deceased boy who was in the road margin. It appears to me that this finding is something which is not warranted by the evidence. I have already adverted to the evidence of PW 1.
7. From the evidence of PW 2 what is seen is that the revision petitioner, at the scene of occurrence, suddenly turned the steering to left and right. So also from his evidence, it is seen that when the boys were walking they were making hue and cry and the deceased boy suddenly turned and entered the tarred road before the incident took place. This statement on his part probabilises the defence version that the incident happened on account of the fact that the deceased boy suddenly entered the tarred road in an attempt to cross the same. It is also in evidence from the depositions of the occurrence witnesses that immediately after the incident the driver stopped the vehicle, came out and attempted to lift the injured boy. These facts are indicative of his innocence and anxiety to save the boy. Added to this the scene mahazar and the evidence of the witnesses show that the injured boy was lying almost on the middle of the tarred portion of the road. Both the courts below went under the impression that this may be because the boy was overthrown after the incident. Both the Courts below lost sight of the admission of PW 2 that at the time of the incident the lorry was on the middle of the road and the blood was also on the middle of the tarred road.
8. PW 3 has also admitted that the revision petitioner made an attempt to turn the vehicle to the right and left and that at the time of accident the deceased boy was inside the tarred road; while the other boys were in the road margin. That is the evidence of PW 4 also. Thus, it is clear from the evidence of all the occurrence witnesses that among the boys the deceased entered the tarred portion of the road just before the incident took place. It is also clear from the evidence of these witnesses that the driver made a sudden attempt to turn the vehicle. All these facts are indicative of absence of rashness or negligence on the part of the driver. It is true that some of the witnesses have stated that the lorry was being driven in a high speed without sounding horn. Speed alone is not the criterion for deciding rashness or negligence on the part of the driver. A motor vehicle is intended to be driven in speed. The relationship between speed and rashness or negligence depends upon the place and time. In a straight wide road, where obstructions from other vehicles or pedestrians are not there, it cannot be said that driving in speed or absence of sounding horn by themselves will amount to rashness or negligence.
9. In my opinion, both the courts below violated fundamental rules of appreciation of evidence in considering the depositions of PWs 1 to 4 and the other evidence and circumstances. They have come to the findings of rashness or negligence on the basis of materials and circumstances not in the evidence and not warranted by evidence. Such an approach has resulted in miscarriage of justice. Therefore, this is a fit case in which interference in revision has become absolutely necessary. The prosecution evidence is not sufficient to warrant the conclusion that the revision petitioner was responsible for the crime or that he is guilty of the offences for which he is charge-sheeted. On the other hand, the evidence and circumstances only go to show that the incident happened in spite of the care and caution of the driver. At any rate, the revision petitioner ought to have been given the benefit of doubt which was available to him.
10. Therefore, the revision petition is allowed and the conviction and sentence passed by the Courts below are set aside. The revision petitioner is found not guilty and he is acquitted and set at liberty.