Abdul Khader v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 26TH DAY OF JULY 2016/4TH SRAVANA, 1938** **CRL.REV.PET.NO. 1572 OF 2006 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.328/2004 OF ADDITIONAL SESSIONS JUDGE(ADHOC-III), KASARAGODE DATED 31-03-2006** **AGAINST THE JUDGMENT IN CC NO.624/2000 OF CHIEF JUDICIAL MAGISTRATE,KASARAGOD DATED 24-08-2004** **-----------------------** **REVISION PETITIONER(S)/APPELLANT/ACCUSED :** **---------------------------------------** **ABDUL KHADER, S/O.MUHAMMED, AGED 26, RAHMATH MANZIL, MANGALPADI VILLAGE, KASARAGOD DISTRICT.** **BY ADV. SRI. M.RAMESH CHANDER** **RESPONDENT(S)/STATE & COMPLAINANT: ----------------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **2. STATION HOUSE OFFICER,** - **MANJESHWAR POLICE STATION, MANJESHWAR, KASARAGOD.** **BY PUBLIC PROSECUTOR SMT.M.G. LISHA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** ## **-------------------------------Crl. Rev.Pet. No.1572 of 2006 ---------------------------------Dated this the 26[th] day of July, 2016** ## **O R D E R** This revision petition is preferred by the accused against the concurrent judgment in Criminal Appeal No.328 of 2004 of Additional Sessions Judge, Adhoc-III, Kasaragod. He was charge sheeted by the Chief Judicial Magistrate, Kasaragod in C.C. No.624 of 2000 under Secs.279 and 304(A) of the Indian Penal Code ( 'IPC' for short). The learned Magistrate convicted the accused under Sec.304(A) IPC and sentenced him to simple imprisonment for six months and fine of Rs.5,000(Rupees five thousand only) in default, simple imprisonment for two months. Against that, he preferred Criminal Appeal No.328 of 2004 before the Additional Sessions Court, Adhoc-III, Kasaragod where the learned Sessions Judge confirmed the conviction of the lower court and sentenced him to simple imprisonment for six months under Sec.279 IPC. Being aggrieved by that, the accused preferred this revision petition. Crl. Rev.Pet. No.1572 of 2006 2 2. The charge against the accused is that on 21.12.1999 at 9.20 p.m., the accused had driven an auto rickshaw bearing No.KL-14A/2578, in which PW1 and her husband were the passengers, in a rash and negligent manner along the NH road at Hanafy Bazar, Uppala gramam. When it reached at the place of occurrence, the vehicle hit against a mango tree on the side of the road and it capsized. As a result, they sustained serious injuries and husband of PW1 succumbed to the injuries. Manjeswar Police registered a crime and after completing investigation, they laid charge in the trial court. During trial, prosecution examined PW1 to PW9 and marked Exts.P1 to P7. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. 3. Heard both sides. Revisional jurisdiction is a supervisory power to correct illegality or irregularity or miscarriage of justice arising from misconception of law which has resulted in hardship or any injury to any Crl. Rev.Pet. No.1572 of 2006 3 person. Normally the Court exercise this jurisdiction in exceptional cases when it feels that substantial injustice has been done by a Subordinate Court. If miscarriage of justice has been done by violating the fundamental rules of appreciation of evidence, High Court is justified in revising the decision of its lower courts. If a particular point is decided misconstruing the evidence on record or in the absence of evidence it is necessary for the High Court to exercise its revisional power. It is pertinent to note that the possibility of another view on a point is not a ground for interpreting with the above power. 4. The principle of rash and negligent driving in a case 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 Crl. Rev.Pet. No.1572 of 2006 4 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. 5. For ascertaining the rash and negligent driving of the revision petitioner, I have examined the oral testimony of the occurrence witnesses PW1 and PW2. The evidence of PW1 shows that she was travelling with her husband in KL-14A/2578 auto rickshaw, the revision petitioner was the driver of that auto rickshaw and he had driven the vehicle in a rash and negligent manner at a high speed. When it reached at the place of occurrence, the vehicle went out of the road and hit against a mango tree and the vehicle capsized. She and her husband sustained serious injuries. PW2, an eye witness, deposed that the revision petitioner was driving the auto rickshaw at a high speed, it went out of the road and hit against a mango tree. Analyzing the evidence of Crl. Rev.Pet. No.1572 of 2006 5 these two witnesses, it is clear that, the revision petitioner had driven the vehicle in a rash and negligent manner therefore, it went out of the road and hit against the mango tree. From the above statement, it is clear that PW1 (who is the injured) and PW2 (occurrence witness) identified the accused, the rashness or negligence of the driver resulted in the accident, husband of PW1 sustained injuries in the accident and he succumbed to the injuries due to the injuries in the accident. 6. The postmortem was conducted by the doctor of the Wenlock hospital, Mangalore. As per Ext.P7 the deceased died at Wenlock hospital, Mangalore and the cause of death was due to stroke and hemorrhage of vital oragans. In my opinion, the courts below considered the postmortem and observed that the injuries sustained in the accident is sufficient in the ordinary course to cause death. It is clear from Ext.P5 scene mahazar that, at the place of occurrence, the tarred portion has a width of 4 metres and road margin has a width of 1½ metres. Even though, the witnesses were cross examined, nothing Crl. Rev.Pet. No.1572 of 2006 6 has been brought out to discredit the oral and documentary evidence. Therefore, for the purpose of finding rashness or negligence, the trial court rightly appreciated the oral evidence of PW1 and PW2 and convicted the accused. It appears that no illegality was committed by the trial court or the appellate court in finding the negligence. Therefore, the conviction and sentence passed by the appellate court under Sec.279 and 304A IPC is only to be confirmed. 7. Considering the facts and circumstances of the case it is clear that the incident happened long back, hence the sentence imposed by the trial court is modified as follows, relying on the decision reported in **Chandramohan Nair v. State of Kerala [1994 Supreme Court Cases (Cri.) 1750].** Revision Petitioner is sentenced to rigorous imprisonment for three months and fine of Rs.5,000/- (Rupees five thousand only) under Sec.304A IPC, in default, simple imprisonment for three months. The sentence imposed by the appellate court Crl. Rev.Pet. No.1572 of 2006 7 under Sec.279 IPC is set aside. Revision petitioner is directed to surrender in the trial court to undergo the modified sentence, failing which, the learned Chief Judicial Magistrate, Kasaragod shall issue non bailable warrant forthwith. This revision petition is disposed of accordingly. Sd/- **P.D. RAJAN, JUDGE** NS/01/08/2016 / True Copy / P.A. To Judge