Abdul Saleem v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` MONDAY, THE 16[TH] DAY OF OCTOBER 2023 / 24TH ASWINA, 1945 CRL.REV.PET NO. 164 OF 2016 ``` ``` CRIME NO.229/2006 OF VADANAPPALLY POLICE STATION, THRISSUR C.C.NO.1380/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS,CHAVAKKAD CRL.A.NO.148/2012 OF IV ADDITIONAL SESSIONS COURT, THRISSUR ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED:`** ``` ABDUL SALEEM AGED 32 YEARS S/O ABDU, RAYAMARAKKARVEETIL, THRITHALLUR DESOM & P.O., THRISSUR DISTRICT. ``` ``` BY ADV. SRI.RAJIT ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. ``` ``` BY PUBLIC PROSECUTOR SRI.M.P.PRASANTH ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13.10.2023, THE COURT ON 16.10.2023, DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 164 OF 2016 2 ``` ## **ORDER** Dated this the 16[th] day of October, 2023 This revision petition is at the instance of the sole accused in C.C.No.1380/2006 on the files of the Judicial First Class Magistrate Court, Chavakkad. The revision petitioner is aggrieved by the judgment in the above case, dated 17.2.2012 and also judgment, dated 7.1.2016 in Crl.A.No.148/2012 on the files of the IV Additional Sessions Judge, Thrissur. 2. Heard the learned counsel for the revision petitioner as well as the learned Public Prosecutor earlier and on 13.10.2023, finally. 3. I have perused the relevant materials. 4. The prosecution allegation in nutshell is that, at about 20.00 hrs. on 03.06.2006, the revision petitioner/accused had driven car, bearing Registration No.KL- 8-AB-8329, from south to north, through ChettuvaKodungallur NH-17 road, in a rash and negligent manner, so as to endanger human life and eventually hit down one Vinod, ## **`CRL.REV.PET NO. 164 OF 2016 3`** who was pedaling a bicycle from south to north. In consequence of the accidental injuries, Vinod died. On this premise, crime, alleging commission of offences punishable under Sections 279 and 304A of the Indian Penal Code (for short, ‘the IPC’ hereinafter), was registered and investigated. 5. On completion of the investigation, final report laid before the Judicial First Class Magistrate Court and the learned Magistrate took cognizance in this matter and secured the presence of the accused for trial. On completion of pretrial formalities, the trial court tried the accused. PWs 1 to 11 were examined and Exts.P1 to P7 were marked on the side of the prosecution. On completion of the prosecution evidence, the accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure (for short, ‘the Cr.P.C.’ hereinafter) and opportunity was provided to him, to adduce defence evidence. But, no defence evidence adduced. 6. The learned Magistrate, on appreciation of evidence, after hearing both sides, convicted the revision petitioner/accused under Sections 279 and 304A of the IPC and sentenced to undergo simple imprisonment for three ## **`CRL.REV.PET NO. 164 OF 2016 4`** months for the offence punishable under Section 279 of the IPC and simple imprisonment for one year for the offence punishable under Section 304A of the IPC. The conviction and sentence imposed by the learned Magistrate was challenged before the Sessions Court and as per judgment in Crl.A.No.148/2012, dated 7.1.2016, the learned Additional Sessions Judge confirmed the conviction as well as sentence. 7. While assailing the concurrent verdicts of conviction and sentence imposed by the trial court and confirmed by the appellate court, the learned counsel for the revision petitioner argued at length, with reference to evidence available in this case in minute niceties, to contend that the courts below wrongly convicted and sentenced the accused without support of evidence. 8. Whereas, the learned Public Prosecutor would submit that, power of revision available to this Court is not wide enough to re-appreciate the evidence and therefore, this Court shall confine its power within the ambit of Section 401 of Cr.P.C. 9. Before progressing further, this Court is mindful of ## **`CRL.REV.PET NO. 164 OF 2016 5`** the settled law that power of revision available to this Court under Section 401 of Cr.P.C r/w Section 397 is not wide and exhaustive to re-appreciate the evidence to have a contra finding. Decisions reported in **[(1999) 2 SCC 452 : 1999 SCC (Cri) 275], State of Kerala v. Puttumana Illath Jathavedan Namboodiri; [(2015) 3 SCC 123 : (2015) 2 SCC (Cri) 19], Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke; [(2018) 8 SCC 165], Kishan Rao v. Shankargouda** , are on this point. 10. It is argued by the learned counsel for the revision petitioner that, there are contradictions in the evidence of PW1 and PW3, the occurrence witnesses and also no convincing evidence available in this matter to identify the revision petitioner/accused as the person who drove the vehicle at the time of occurrence. He argued further that, there is no convincing evidence adduced by the prosecution to prove that there was either rashness or negligence on the part of the accused while driving car and the evidence given by the witnesses, attributing high speed, as a reason for the accident, would not tantamount negligence or rashness. ``` CRL.REV.PET NO. 164 OF 2016 6 ``` 11. In this connection, the learned counsel for the revision petitioner placed decision of the Apex Court in **State of Karnataka** v. **Satish** reported in **[(1998) 8 SCC 493],** relying on paragraph No.4 of the above judgment. In paragraph No.4, the Apex Court held as under: _“4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is_ ## **`CRL.REV.PET NO. 164 OF 2016 7`** _evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.”_ It is also argued by the learned counsel for the revision petitioner that, it is the duty of the prosecution to prove rashness and negligence on the part of the accused to succeed conviction under Section 279 as well as under Section 304A of the IPC. It is also pointed out that, when the evidence of the occurrence witnesses is not satisfactory to prove the rashness and negligence on the part of the accused, conviction under Section 279 and Section 304A of the IPC, cannot be justified. In support of this contention, the learned counsel placed decision of the Apex Court in **Mrs.Shakila Khader And Ors.** v. **Nausheer Cama And Ors.,** reported in **[AIR 1975 SC 1324]** . ## **`CRL.REV.PET NO. 164 OF 2016 8`** 12. In this connection, it is relevant to refer decision of the Apex Court in **M.S.Grewal and another** v. **Deep Chand Sood and others** reported in **[AIR 2001 SC 3660]** , where the Apex Court considered the definition of the word ‘negligence’ and held in paragraph No.14 that ‘ _negligence in common parlance mean and imply failure to exercise due care, expected of a reasonable prudent person. It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of safety of others. In most instances, it is caused by heedlessness or inadvertence, by which the negligent party is unaware of the results which may follow from his act. Negligence is thus a breach of duty or lack of proper care in doing something, in short, it is want of attention and doing of something which a prudent and a reasonable man would not do whereas inadvertence is a milder form of negligence, 'negligence' by itself mean and imply a state of mind where there is no regard for duty or the supposed care and attention which one ought to bestow.’_ 13. In **Mrs.Shakila Khader** ’s case (supra), the Apex Court held that _‘the facts in the case speak eloquently about_ ## **`CRL.REV.PET NO. 164 OF 2016 9`** _what should have happened. The main criterion for deciding whether the driving which led to the accident was rash and negligent is not only the speed but the width of the road, the density of the traffic, and the attempt, as in this case, to overtake the other vehicles resulting in going to the wrong side of the road and being responsible for the accident. Even if the accident took place in the twinkling of an eye it is not difficult for the eyewitness to notice the car overtaking other vehicles and going to the wrong side of the road and hitting a vehicle travelling on that side of the road.’_ 14. While summarising the principles governing the ingredients to find commission of offences punishable under Sections 279 and Section 304A of the IPC, Section 279 deals with rash and negligence driving with intent to endanger human life or to be likely to cause hurt or injury to any other person. Similarly, Section 304A of the IPC deals with causing death of a person by doing any rash or negligent act, not amounting to culpable homicide. So, the ingredients to prove an offence punishable under Section 279 and Section 304A of the IPC, are proof of rash or negligent act. It is true that, ``` CRL.REV.PET NO. 164 OF 2016 10 ``` speed or high speed is not only the criteria to decide whether the act of driving which caused the accident was rash and negligent, but speed is not excluded from the factors to be considered for deciding whether it was a case of rash and negligent driving. The place of accident with reference to whether the vehicle was on the proper side or on the wrong side, the width of the road, traffic congestion, attempt and act of overtaking callously, who is the victim of accident, viz., pedestrian, cyclist, rider of the motorcycle or driver of another vehicle, are also governing factors. Most importantly, the outcome of the accident and consequential injuries sustained to the victim would also give rise an indication as to how rashly or negligently the alleged offending vehicle hit down the victim. When all these facts taken together, if constitute rashness or negligence on the part of the driver, definitely, the driver must found to have driven the vehicle rashly and negligently with intention to cause danger to human life or to cause hurt or injury to human being which would attract offence under Section 279 of the IPC. Similarly, when by the said act/acts causes death of any person, the same shall be ## **`CRL.REV.PET NO. 164 OF 2016 11`** punishable under Section 304A of the IPC. 15. In the case at hand, the trial court as well as the appellate court given heavy reliance to the evidence of PW1 and PW3, two occurrence witnesses, who had given evidence in support of the prosecution, to find commission of offences punishable under Sections 279 and 304A of the IPC. PW1 deposed before the trial court that, he had witnessed the occurrence, whereby, Vinod succumbed to injuries. According to him, the accident was at ‘Aasaan road’ and at the time of the incident, he was going towards his shop. He deposed further that, Vinod pedaled a bicycle from south to north, while so the Maruthi car driven in high speed, had hit on the rear side of the bicycle and Vinod was thrown away. He also given evidence that the careless driving of the accused is the cause of the accident. He took Vinod along with the second witness (PW2) Rajan, to Westfort Hospital and then to HighTech Hospital, but, Vinod died. He also given evidence that he had seen the driver of the Maruthi car and he identified him at the dock. He also supported Ext.P1 statement given by him. ## **`CRL.REV.PET NO. 164 OF 2016 12`** 16. PW2, Rajan cited as another occurrence witness, turned hostile to the prosecution. But PW3, another occurrence witness, supported the prosecution and given evidence that, at about 8.00 p.m. on 3.6.2006, the accident was in Kodungallur - Guruvayoor Road and the road was in south to north direction. The car came from behind the bicycle pedaled by Vinod and hit him down. His evidence further is that, Vinod was pedaling the bicycle through the left side of the road and Vinod was thrown out on the road, as a result of hit. He also deposed that, the car, hit against the bicycle of Vinod, is KL-8-AB-8329. He also identified the driver at the dock as the person who drove the car, at the time of accident. According to him, the careless driving of the accused caused the accident and he had witnessed the occurrence from the light available from the street light. 17. The learned counsel for the revision petitioner submitted that, as per the recitals in Ext.P3 scene mahazar, there is no mention regarding presence of light at the place of occurrence, eventhough the occurrence is at 8.00 p.m. In order to address this contention, I have perused the recitals in ## **`CRL.REV.PET NO. 164 OF 2016 13`** Ext.P3 scene mahazar. As per the scene mahazar, the road is having a width of 10 metres and the occurrence is 120 cm from western tar-end. Nothing stated in the scene mahazar as to availability of light at the place of occurrence. But the evidence of PW1 is that, there was light at the place of occurrence and he had witnessed the occurrence with the aid of moon light. According to him, there was electric light on the eastern side of the National Highway and there was no street light on the western side. Accordingly, there was light available at the time of occurrence to see the accident and to identify the accused and the injured. But PW1 would give evidence that, he had witnessed the accident from the light available from the street light. 18. PW3 supported the evidence of PW1 as regards to occurrence and identification of the accused as driver of the vehicle at the time of the accident and he stated that, soon after the accident, he had seen the driver who got out from the car and tried to ran away. Regarding presence of light, the evidence of PW3 is that, he had witnessed the accident from the light available from street light. During cross ## **`CRL.REV.PET NO. 164 OF 2016 14`** examination also, PW3 stated that, there was electric post on the western side of Asaan road. Thus it appears that, as per the evidence of PW1 and PW3, there was street light at the place of occurrence. But according to PW1, he had witnessed the occurrence by moon light and PW3 witnessed the occurrence by street light. In this case, the identity of the accused as the driver of the vehicle not seriously challenged during cross examination of PW1 and PW3 may be because of the reason that, in the additional statement of PW1, the name of the accused, as such, seen stated, as argued by the learned Public Prosecutor. As I have already pointed out, in Ext.P3, there is no mention regarding presence of electric post in Ext.P3. When the occurrence witness categorically said that there was light at the place of occurrence, there is no reason to disbelieve the same, since the place of occurrence is a public road, where another road, by name, Asaan road also joining. That apart, during cross examination of PW9, nothing asked to challenge Ext.P3, where there is no narration regarding presence of any electric post. 19. It is true that following the ratio in **Satish** 's case ## **`CRL.REV.PET NO. 164 OF 2016 15`** (supra), high speed alone shall not be reckoned as negligence or rashness by itself. But when the witness gives categorical evidence that the accident was due to carelessness on the part of the accused, the same is not merely evidence showing high speed and the same is evidence, suggesting rashness and negligence on the part of the rider. In this case, Ext.P2 postmortem certificate proved through PW4, the Doctor, who prepared the same, would suggest 5 antemortem injuries, viz., _1. Abrasion 6x2cm on back of left shoulder, 11cm outer to midline, 3cm below top of shoulder._ _2. Graze abrasion over an area 16x3cm on outer aspect of left elbow and forearm._ _3. Multiple graze abrasion over an area 17x10cm on back right hip and buttock, 4cm outer to midline._ _4. Multiple abrasions over an area 20x2cm on front of left knee and leg with size 0.5x0.5cm to 2x1cm._ _5. Contusion of scalp 12x10cm involving right temporal and parietal regions. Fissured fracture 8cm long on right parietal bone and extending as tempero parietal suture separation. Brain showed reddish brown subdural blood clots over both cerebral hemispheres. Brain showed subarachnoid haemorrhage on both cerebral hemispheres. Contusion 6x5cm on left temporal pole._ As per Ext.P2 itself, it is opined by the Doctor that the deceased died of head injury. In this case, as evident from ## **`CRL.REV.PET NO. 164 OF 2016 16`** available records, the place of occurrence is 120 cm from the western tar-end, a road having a width of 10 metres. Thus, it appears that Vinod (deceased) was pedaling his bicycle through the extreme left side road from south to north and the car came from the same direction, was driven in a rash and negligent manner and the same hit down the aforesaid Vinod and in turn, he was thrown away and sustained the injuries noted in Ext.P2 and he died as an aftermath of the said injuries, as extracted hereinabove. 20. In fact, the evidence of PW1 and PW3 is not at all contrary on material facts eventhough the learned counsel for the revision petitioner attempted to point out material contradictions in their evidence. 21. In this case, on evaluation of the materials available, to exercise the power of revision, it has to be held that the prosecution succeeded in establishing rashness and negligence on the part of the accused, while riding car, bearing Registration No.KL-8-AB-8329 and thereby, hit down Vinod, who was pedaling a bicycle through the extreme left side road and in consequence thereto, he died. In such a case, ## **`CRL.REV.PET NO. 164 OF 2016 17`** the concurrent findings of conviction entered into by the trial court, does not require any interference. 22. Coming to the sentence, the learned counsel for the revision petitioner pressed for leniency by highlighting the present pathetic situation of the revision petitioner. Therefore, I am inclined to modify the sentence. 23. In the result, this revision petition succeeds in part. The conviction imposed by the trial court for the offences punishable under Sections 279 and 304A of the IPC stands confirmed. The sentence is modified and thereby, the revision petitioner/accused is sentenced to undergo simple imprisonment for one month for the offence punishable under Section 279 of the IPC and also to undergo simple imprisonment for a period of 6 months for the offence punishable under Section 304A of the IPC. The sentence shall run concurrently. 24. The revision petitioner/accused is directed to surrender before the trial court within two weeks from today to undergo the sentence. If he fails to do so, the trial court is directed to execute the sentence without fail. The bail bond ## **`CRL.REV.PET NO. 164 OF 2016 18`** executed by the revision petitioner/accused stands cancelled. Registry is directed to forward a copy of this order to the trial court for information and execution of sentence, without fail. Sd/- **A. BADHARUDEEN JUDGE** Bb