A. Sivadasan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 29TH DAY OF SEPTEMBER 2016/7TH ASWINA, 1938** **CRL.REV.PET.NO. 2147 OF 2006 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.65/2002 OF ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT NO.III, PALAKKAD DATED 30-09-2005** **AGAINST THE JUDGMENT IN CC NO.76/1999 OF CHIEF JUDICIAL MAGISTRATE, PALAKKAD DATED 31-01-2002** **---------------------------------** **REVISION PETITIONER(S)/ACCUSED/APPELLANT:** **----------------------------------------** **A.SIVADASAN, S/O ARU, MUTHIRAMPALLAM, PARA, ELAPPULLY, PALAKKAD.** **BY ADVS.SRI.NAGARAJ NARAYANAN SRI.A.G.GIRISH KUMAR SRI.SAIJO HASSAN SRI.A.S.SABU** **RESPONDENT(S)/COMPLAINANT/STATE: --------------------------------** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.D.CHANDRASENAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. Rev.Pet. No.2147 of 2006 ---------------------------------Dated this the 29[th] day of September, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.65 of 2002 of the Additional Sessions Judge, Fast Track-III, Palakkad. He was charge sheeted in C.C. No.76 of 1999 by the Chief Judicial Magistrate, Palakkad for the offences under Secs.279, 337 and 304A of the Indian Penal Code ('IPC' for short). After trial, the learned Chief Judicial Magistrate convicted the accused under Secs.279, 337 and 304A IPC and sentenced him to undergo rigorous imprisonment for six months each under Secs.279 and 337 IPC and rigorous imprisonment for two years and fine of Rs.10,000/- in default, simple imprisonment for six months under Sec.304A IPC. Against that, the accused preferred the above criminal appeal before the Sessions Court, where the learned Additional Sessions Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision Crl. Rev.Pet. No.2147 of 2007 2 petition. 2. The charge against the accused is that on 27.01.1999 at 11.00 p.m., the accused had driven an auto rickshaw KL-9/F-791 along the Puthiyapalam public road in a rash and negligent manner endangering human life. When he reached at Sai hospital junction, the vehicle hit against another auto rickshaw KL9/F-225 which was plying from Olavakkode to Malappuram side. As a result, the passengers in the auto KL-9/F-225 sustained serious injuries and one of the passengers succumbed to the injuries while undergoing treatment. Town North Police, Palakkad registered a crime and after completing investigation, laid charge in the trial court. To prove the offence, prosecution examined PW1 to PW17 and marked Exts.P1 to PW11 as documentary evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned Magistrate convicted the accused. 3. The principle of rash and negligent driving Crl. Rev.Pet. No.2147 of 2007 3 has been explained by the Apex Court in **S.N. Hussain v. State of A.P. [1972 (3) Supreme Court Cases 18]** which reads as follows: 1. Rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with the recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. (ii) Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. 4. Prosecution examined PW1 to PW3, PW5 and PW6 in the trial court to prove the rash and negligent driving of the revision petitioner. The evidence of PW1 shows that the deceased is his daughter. On 27.01.1999 he was travelling in an auto rickshaw from Olavakode to his house, when he reached at Puthiyapalam junction, another auto came from the opposite side, hit against his Crl. Rev.Pet. No.2147 of 2007 4 vehicle and his daughter and wife sustained serious injuries. The accident was due to the over speed of the auto rickshaw which came from the opposite direction. For that, he gave Ext.P1 statement. During cross examination, he admitted that he did not know whether the vehicle came at a high speed. PW2 did not know the reason for the accident. PW1 and PW2 did not know the identity of the driver. PW3 is the driver of KL9/F-225. His evidence shows that while he was driving KL-9/F-225, the offending vehicle came and it hit against his vehicle. As a result, the passengers in the vehicle sustained serious injuries. He identified the revision petitioner who had driven KL-9/F-791. His evidence shows that on seeing the offending vehicle, he stopped his auto by the side of the road and after stopping his vehicle, the offending vehicle hit against his vehicle. PW4 deposed that the auto rickshaw came from the wrong side and hit against his vehicle. The evidence of PW4 is not believable. PW5 and PW6 are the passengers in the auto rickshaw driven by the accused. The evidence of PW5 shows that the Crl. Rev.Pet. No.2147 of 2007 5 accident was due to the negligence of the revision petitioner. When he reached at the place of occurrence, another auto came from Malampuzha side, hit on the back side of his auto rickshaw, as a result, that auto rickshaw capsized. But PW6 deposed that when the vehicle reached in front of the Sai hospital junction, a motorbike came there and in order to avoid an accident, the driver twisted towards the right side. Analysing the defence contention put forward by the revision petitioner, it is found that at the place of occurrence a car and a motor bike came at the time of accident and in order to avoid a head and collision with the car, the revision petitioner changed his direction and it hit against the auto rickshaw. The probability of these two defences have been considered by me. 5. Learned counsel appearing for the revision petitioner contended that there was no rash and negligent driving from the part of the revision petitioner. On the other hand, the revision petitioner tried to save the rider of the motorcycle and at that time it hit against Crl. Rev.Pet. No.2147 of 2007 6 the other vehicle. This story was deposed by PW2, the mother of the deceased. Therefore, the accused is entitled to get the benefit of doubt. 6. There are two defence versions taken by the revision petitioner in the trial court. Analysing the evidence it is found that both versions are unbelievable. In this context, I have examined Ext.P2 mahazar. At the place of occurrence, the road lies west to east. The accident occurred on the northern tar end, 1.50 metres south from the northern tar end. The deceased was travelling from west to east and the revision petitioner was driving his vehicle from east to west. At the place of occurrence, the tarred portion has a width of 8.5 metres. 15 metres east road goes towards northern side. Even though revision petitioner contended that in order to save a motorcyclist, he turned the vehicle and the accident happened, no corroborative piece of evidence has been produced in the trial court to believe that story. Therefore, the story that the accused suddenly turned his vehicle towards right since a motorcycle crossed the road Crl. Rev.Pet. No.2147 of 2007 7 at his front and he lost control and hit against the other vehicle is not believable. Those aspects were not highlighted during cross examination or in the scene mahazar also. Bye roads were not specifically mentioned in the scene mahazar. That was not asked to the official witness or to the occurrence witnesses. If that be the position, the trial court rightly analysed the evidence of PW2,PW3,PW5 and PW6 and convicted the revision petitioner. I find no illegality in the above finding. Therefore, the conviction under Secs.279, 337 and 304(A) IPC is confirmed. ## 7. Apex court in **Chandramohan Nair** v. **State of Kerala [1994 SCC Cri.1750 ]** took the view that three months rigorous imprisonment is sufficient to meet the ends of justice which reads as follows: “There is no dispute that the accused was driving the car, but according to the learned counsel, the car was proceeding on a public road and the deceased crossed suddenly and the same resulted in an accident which cannot be said that the appellant was driving the car rashly and negligently. This is a question which depends upon the merit in each case. The evidence on record i.e., ## Crl. Rev.Pet. No.2147 of 2007 8 of PW1 shows that the deceased was crossing the road at a distance of 50 feet away from the running car. In such a situation it would not have been impossible for the accused to apply brakes. That apart, the number of injuries would show that the impact must have been very severe. The appellant without stopping the car sped away. This circumstance would go to show that he acted rashly and negligently. There is no merit in this appeal and the same is dismissed accordingly. But having regard to the fact that the incident took place in the year 1981, the sentence is reduced to 3 months RI. The payment of fine with default clause, if any, is confirmed. The appellant shall surrender and serve out the remaining portion of sentence, if any. ” 8. Considering the facts and circumstances, the sentence imposed by the trial court is modified as follows: The revision petitioner is sentenced to rigorous imprisonment for two months and fine of Rs.1,000/(Rupees one thousand only) under Sec.279 IPC and rigorous imprisonment for three months and fine of Rs.10,000/- (Rupees ten thousand only) under Sec.304A IPC in default, simple imprisonment for six months each. No separate sentence under Sec.337 IPC. The sentence shall run concurrently. Revision petitioner is directed to Crl. Rev.Pet. No.2147 of 2007 9 surrender in the trial court to undergo the modified sentence forthwith. This Criminal Revision Petition is disposed of accordingly. Sd/- **P.D. RAJAN,** / True Copy / P.A. To Judge **JUDGE** NS/04.10.2016