@JUDGMENTTAG-ORDER
N. Dhinakar, J.@mdashThe petitioner now stands convicted for offences under Sections 279 and 304A, I.P.C. For the former he was sentenced to suffer rigorous imprisonment for 2 months and for the latter he was sentenced to rigorous imprisonment for 6 months. He was also directed to pay a fine of Rs. l.000/- for the said offence u/s 304A and in default of payment of the fine he was directed to suffer simple imprisonment for a period of 2 months. The sentences of imprisonment were directed to run concurrently. There was also a further direction that the driving licence of the petitioner will be suspended for a period of one year.
2. The case of the prosecution is, that on 28-9-1987 at about 3.30 p.m. on the road in front of the house of one Sanku, situated at Nellikkurussi amsom and desom, the petitioner being the driver of the tempo van bearing registration No. KER 900, drove the same from east to west through the Nellikkurussi-Murukkumpatta public road in a rash and negligent manner and ,in a high speed and when the vehicle driven by him reached at the place of occurrence, it hit the body of a boy, Kader, aged about 8 years. On account of the said impact the boy sustained grievous injuries on his head who was then removed to the Medical College Hospital, Trichur, where he succumbed to the injuries on 6-10-1987.
3. P.W. 1 is the first informant and Ext. P1 is the first information statement. He is an eye-witness to the occurrence. P.Ws. 2 to 4, though were examined as eye-witnesses, P.W. 4 alone supported the case of the prosecution. P.W. 5 was cited to prove the scene mahazar and he proved Ext. P2, the scene mahazar. Similarly P.W. 6 who was examined to prove Ext. P3, the mahazar prepared for the seizure of the clothes from the dead body, supported the prosecution and proved Ext. P3. Ext. P4 was proved through P.W. 7. P.W. 8 was the doctor attached to the Medical College Hospital, who sent the death intimation Ext. P5 to the police and P.W. 9 is the Assistant Motor Vehicle Inspector, Ottapalam, who inspected the vehicle and issued the inspection report, Ext. P6 wherein he has stated that the occurrence was not due to any mechanical failure. P.W. 10, the Circle Inspector of Police, completed the investigation and laid the final report against the accused u/s 173 of the Crl.P.C. P.W. 10 filed Ext. P7 the post-mortem certificate alleged to have been issued by a doctor who conducted .the post-mortem on the dead body of Kader, the deceased in the case.
4. The counsel for the petitioner contended that the prosecution has miserably failed to prove the case of death of the boy in as much as the doctor who conducted the post-mortem on the dead body of the deceased was not examined before the Court and the post-mortem certificate Ext. P7 was also not proved in terms of the Evidence Act or in terms of Section 294, Crl. P.C. Section 294, Crl. P.C. reads as follows:
"294. No formal proof of certain documents. -
(1) Where any document is filed before any Court by the prosecution of the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2) The list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed;
Provided that the Court may, in its discretion, require such signature to be proved."
A reading of the above section shows that when a document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document. It also interdicts that the list of documents shall be in such form as may be prescribed by the State Government. Only where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, or trial without the proof of the signature of the person to whom it purports to be signed. There is ho material before this Court to show that before Ext. P7 was produced and marked as an exhibit the petitioner was called upon to admit or deny the genuineness of Ext. P.7. Ext. P7 was also not filed through a list which shall be in the form prescribed by the State Government as contemplated under Sub-section (2) of Section 294, Crl. P.C.
5. I have persued the evidence of P.W. 10 and he has stated as follows:
"I obtained the post-mortem certificate of the deceased Kaderkutty in this case from Dr. Sadasivan and produced before the Court. The said certificate is the one showed to me. It is marked as Ext. P7."
There is nothing in the evidence to show that before the marking of the document the accused was called upon to admit or deny the genuineness of that document. As the prosecution did not strictly comply with the provisions of Section 294, Crl. P.C. I am of the view that Ext. P7 ought not have been marked and proved as a document evidencing the cause of death of the deceased Kader.
6. In
7. As the prosecution has not proved the cause of death, the charge against the petitioner u/s 304A has to be set aside and accordingly it is set aside. As the prosecution did not examine any doctor to prove the nature of injuries sustained by the injured the petitioner is entitled for an acquittal u/s 279, I.P.C. also.
8. For the reasons mentioned above this revision petition is allowed. The petitioner is acquitted and his bail bonds shall stand cancelled. The fine amount, if already paid, will be refunded to the petitioner.
