ALAVI, S/O BEERAN v. THE STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN FRIDAY, THE 24TH DAY OF JANUARY 2014/4TH MAGHA, 1935 Crl.Rev.Pet.No. 1133 of 2003 --------------------------------- AGAINST THE JUDGMENT IN CRA 37/1999 OF ADDITIONAL DISTRICT AND SESSIONS JUDGE (ADHOC), FAST TRACK COURT NO.I, MANJERI DATED 26-12-2002 AGAINST THE JUDGMENT IN ST 4544/1995 of J.M.F.C.,TIRUR REVISION PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------------------------- ALAVI, S/O. BEERAN, ARATTUTHODI, KALAMPADY, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR ## RESPONDENT/RESPONDENT/STATE ---------------------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KALPAKANCHERI POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA KOCHI -31. BY GOVERNMENT PLEADER SRI. GITHESH. R THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K. RAMAKRISHNAN, J.** ...................................................... Crl. R.P.No.1133 of 2003 ...................................................... Dated this the 24[th] day of January, 2014 ## **ORDER** Dissatisfied accused in S.T.No.4544/95 on the file of the Judicial First Class Magistrate Court, Tirur is a revision petitioner herein. 2. The revision petitioner was charge-sheeted by the Sub Inspector of Police, Kalpakanchery Police Station in Crime No.172/95 under Sections 279, 337 and 338 of the Indian Penal Code. The case of the prosecution in a nutshell was that on 5.10.1995 at about 2.45 p.m. while the revision petitioner was driving his taxi jeep with No.KLE 6377 through National Highway-17 in a rash and negligent manner so as to endanger human life and when it reached at Vettichira, he suddenly swerved the vehicle negligently on seeing a woman crossing the road and on account of that negligent act it ran out of the road Crl.R.P.No.1133/03 **==> picture [18 x 10] intentionally omitted <==** and capsized on the northern road margin causing simple and grievous injuries to the passengers carried in the vehicle and thereby, he had committed offence punishable under Sections 279, 337 and 338 of the Indian Penal Code. 3. When the revision petitioner appeared before the Magistrate Court, the particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the prosecution, PWs 1 to 8 were examined and Exts.P1 to P8 were marked on the side of the prosecution. After closure of the prosecution evidence, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the prosecution evidence. He had further stated that in order to avoid hitting against a woman who Crl.R.P.No.1133/03 **==> picture [18 x 11] intentionally omitted <==** suddenly crossed the road, he had to swerve the vehicle and in that process it overturned. So, he had not committed any offence. No defence evidence was adduced in his side. After considering the evidence on record, the learned Magistrate found the appellant guilty under Sections 279, 337 and 338 of the Indian Penal Code and convicted him thereunder and sentenced him to undergo simple imprisonment for three months and also to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for one month more under Sections 279 of the Indian Penal Code and further sentenced to undergo simple imprisonment for one month and also to pay a fine of Rs.500/- in default to undergo simple imprisonment for 15 days more under Section 337 of the Indian Penal Code and further sentenced to undergo simple imprisonment for one year and also to pay a fine of Crl.R.P.No.1133/03 -4- Rs.1,000/- in default to undergo simple imprisonment for one month under Section 338 of the Indian Penal Code and directed the substantive sentences to run concurrently. Dissatisfied with the order of conviction and sentence passed by the learned Magistrate, the revision petitioner preferred appeal before the Sessions Court, Manjeri as Criminal Appeal No.37 of 1999 and the same was made over to Additional Sessions Court, (Adhoc), Fast Track Court No.I, Manjeri for disposal and the learned Additional Sessions Judge allowed the appeal in part confirming the order of conviction and sentence passed by the court below under Sections 279 and 337 of the Indian Penal Code and also the fine portion of sentence for the offence under Section 338 of the Indian Penal Code but reduced the substantive sentence of one year imprisonment imposed by the court below under Crl.R.P.No.1133/03 -5- Section 338 of the Indian Penal Code to three months imprisonment. With the modification, the appeal was disposed which is under challenge in this revision. 4. Heard the counsel for the revision petitioner and the learned Public Prosecutor. 5. The counsel for the revision petitioner submitted that the only eye witnesses to the incident are PWs 1 to 3 and they have only deposed that the accident occurred due to the overspeed of the vehicle and if he had applied brake, the accident could have been averted. Further, it was admitted by the prosecution itself that the revision petitioner happened to swerve the vehicle to avoid hitting against a woman who suddenly crossed the road. So, there is no culpable negligence or recklessness proved against the revision petitioner which is a prime ingredient to be established to attract the Crl.R.P.No.1133/03 -6- offence under Sections 279, 337 and 338 of the Indian Penal Code. So, according to the learned counsel, courts below were not justified in convicting the revision petitioner for the offence alleged. 6. On the other hand, the learned Public Prosecutor submitted that the evidence of PWs 1 and 3 will go to show that there is possibility for the accused seeing the lady crossing the road from a distance itself and if he had reduced the speed of the vehicle and applied brake, the accident would have been averted. So, there is culpable negligence on the part of the driver of the vehicle and so courts below were perfectly justified in convicting the revision petitioner for the offence alleged. 7. The case of the prosecution was that on the fateful day, PWs 1 to 3 were travelling in the jeep involved in the accident driven by the revision Crl.R.P.No.1133/03 **==> picture [18 x 11] intentionally omitted <==** petitioner and on reaching the place of occurrence, on seeing the lady crossing the road, the revision petitioner swerved the vehicle and on account of that, it capsized and injuries were caused to the passengers carried in the vehicle. So, the fact that the accident occurred at the time when a lady suddenly crossed the road and in order to avoid the same, he swerved the vehicle is admitted by the witnesses as well. 8. The case was registered on the basis of Ext.P1 statement given by PW3 and the case was registered by PW6 as Crime No.172/95 evidenced by Ext.P7 first information report. Thereafter, the investigation was also conducted by PW6 himself who went to the place of occurrence and prepared Ext.P2 scene mahazar in the presence of PW4 and another. PWs 1 to 3 and the driver of the vehicle were examined by PW 5 Doctor, who issued Exts.P3 to P6 wound certificates in Crl.R.P.No.1133/03 **==> picture [18 x 11] intentionally omitted <==** respect of them. The vehicle was inspected by PW7 A.M.V.I. and issued Ext.P8 vehicle inspection report. After completing the investigation, PW6 submitted the final report. 8. It is seen from the wound certificate that PW3 sustained fracture. PW1 had stated that the vehicle was driven by the revision petitioner and at the time when it reached the place of occurrence, a lady crossed the road and due to that he could not get control. The vehicle was driven at highspeed. He had also stated that he can see the lady crossing the road earlier. According to him, if the vehicle was driven at slow speed and applied brake, the accident would have been averted. He had no case as to when exactly the lady had crossed the road. Further, even in his 161 statement he had no case that they were able to see the lady crossing the road from a distance Crl.R.P.No.1133/03 -9- and the driver had not reduced the speed and applied the brake. 9. PW 2 is also another injured travelling in the vehicle. He had also stated that when the jeep reached in the place of occurrence, a lady suddenly crossed the road and in order to avert hitting against her the vehicle was swerved. He had further stated that he did not remember as to whether the accident occurred due to the negligent driving of the vehicle by the driver. He was declared hostile by the Assistant Public Prosecutor. He had further stated that he could see the lady crossing the road only at a distance of 10 meters. But, that was contrary to the evidence given by PW1. 10. PW3 is another witness who was also travelling in the vehicle and sustained injury. He had also stated that the vehicle was driven at highspeed Crl.R.P.No.1133/03 -10- and when a lady attempted to cross the road, the driver swerved the vehicle. According to him, it was stated that the vehicle was driven at highspeed. He could not control and the accident was occurred. He had stated in the cross-examination that they have seen the lady standing on the side of the road from a distance of 300 meters. But he did not say as to when exactly the lady crossed the road. According to him, if the driver had reduced the speed and applied brake this could have been avoided. 11. But it may be mentioned here that all the three witnesses were categoric on the aspect that the crossing of the road by the lady was a sudden one which a driver on a vehicle cannot anticipate. It is true that the driver must be careful while driving a vehicle and they must anticipate that people are likely to violate the rule and cross the road. But that will Crl.R.P.No.1133/03 -11- not amount to culpable negligence when the accident occurred due to the sudden crossing of the road which the driver would not have anticipated at that time. The courts below have come to the conclusion that since PWs 1 and 3 had stated that there was a possibility of reducing the speed and stopping the vehicle which the driver had not done is a culpable act. But a reading of the evidence will go to show that such a conclusion should not be possible. Except PW3, PW1 did not state that they could see the lady crossing sufficiently early. Even according to PW3 they could see the lady standing on the side of the road from a distance of 300 meters and the lady suddenly crossed the road. So, one cannot expect that the driver has to reduce the speed on seeing a lady standing on the side of the road anticipating that she is likely to cross. So, under the circumstances, it Crl.R.P.No.1133/03 **==> picture [24 x 10] intentionally omitted <==** cannot be said that there was culpable negligence on the part of the driver of the vehicle in causing the accident so as to attract the offence under Sections 279, 337 and 338 of the Indian Penal Code. 12. Further, in the decision reported in State of Karnataka v. Satish **(1998 SC.Cases (Crl.) 1508)** the Hon'ble Supreme Court has held that merely because some persons died in the accident, court cannot automatically presume that it was due to the culpable negligence on the part of the driver of the vehicle that the accident occurred and it is the duty of the prosecution to prove beyond reasonable doubt that there was culpable negligence or rash driving on the part of the driver of the vehicle. In the same decision it was held that merely because the vehicle was driven at speed is not sufficient to come to the conclusion that it was a reckless act so as to attract Crl.R.P.No.1133/03 **==> picture [24 x 11] intentionally omitted <==** the offence under Sections 279, 337 and 338 of the Indian Penal Code. So, considering the circumstances and also on the basis of the evidence of PWs 1 & 3 even if it is admitted, it cannot be said that the prosecution has proved beyond reasonable doubt that there was any reckless or negligent driving on the part of the driver of the vehicle so as to convict him for the offence under Sections 279, 337 and 338 of the Indian Penal Code and so the courts below were not justified in coming to the conclusion that the prosecution has proved beyond reasonable doubt that the accident occurred due to the culpable negligence on the part of the driver of the vehicle viz. the revision petitioner and the conviction entered by the courts below on that assumption is unsustainable in law and the same is liable to be set aside giving the benefit of doubt to the accused as the accident occurred due to Crl.R.P.No.1133/03 **==> picture [24 x 10] intentionally omitted <==** the negligent driving of the revision petitioner and that causes injury to PWs 1 to 3. So, under the circumstances, the conviction entered by the courts below is unsustainable in law and consequently the sentence imposed is illegal and the same are liable to be set aside and the revision petitioner is entitled to acquittal on the charge levelled against him giving the benefit of doubt. So, the revision is allowed and the order of conviction and sentence passed by the courts below are set aside and the revision petitioner is acquitted of the charge levelled against him giving the benefit of doubt. The bail bond, if any, executed by him will stand cancelled. Sd/- **K.RAMAKRISHNAN JUDGE** kvr/ //True copy// P.S. to Judge