Dinesan s/o Nayadi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 28TH DAY OF OCTOBER 2016/6TH KARTHIKA, 1938** **CRL.REV.PET.NO. 2767 OF 2007 (Y) ---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.612/2004 OF ADDITIONAL SESSIONS COURT FAST TRACK COURT NO.III- ADHOC, MANJERI DATED 27-02-2007** **AGAINST THE JUDGMENT IN CC NO.424/2000 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,MALAPPURAM DATED 30-10-2004** **--------------------------** **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **----------------------------------------** **DINESAN, S/O NAYADI, PUNNATHODI HOUSE, N.H. COLONY, NEDIYIRIPPU, MALAPPURAM DISTRICT.** **BY ADV. SRI.K.RAKESH** **RESPONDENT(S)/COMPLAINANT - STATE:: --------------------------------** **THE STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, MALAPPURAM POLICE STATION - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** **BY PUBLIC PROSECUTOR SRI.D.CHANDRASENAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-10-2016 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. Rev.Pet. No.2767 of 2007 ---------------------------------Dated this the 28[th] day of October, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.612 of 2004 of the Additional Sessions Judge, Fast Track No.III, Adhoc, Manjeri. He was charge sheeted in C.C. No.424 of 2000 by the Judicial First Class Magistrate, Malappuram for the offences under Secs.279, 304(A) of the Indian Penal Code (for short, IPC) and Sec.3(1) read with Sec.181 of the MV Act. The learned Magistrate acquitted the accused under Sec.3(1) read with Sec.181 of MV Act, convicted him under Secs.279 and 304(A) IPC and sentenced to undergo simple imprisonment for three months under Sec.279 IPC and simple imprisonment for one year and fine of Rs.2,000/- in default simple imprisonment for two months under Sec.304(A) IPC. Against that, the accused preferred the above Criminal Appeal, where the learned Additional Sessions Judge dismissed the appeal. Being aggrieved by that, the Crl. Rev.Pet. No.2767 of 2007 2 accused preferred this revision petition. 2. The charge against the accused is that on 30.08.2000 at 5.00 p.m., the accused had driven a bus bearing registration No.KL-10/K-3232 through Chappanangadi-Kottakkal Public road in a rash and negligent manner so as to endanger human life and when it reached at Vattapparambu, it hit against the deceased as a result, he sustained serious injuries and succumbed to the injuries at the place of occurrence itself. Malappuram Police registered a crime and after completing investigation, laid charge in the Judicial First Class Magistrate Court, Malappuram. To prove the offence prosecution examined PW1 to PW10 and marked Exts.P1 to P6 as documentary evidence. Incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. 3. Learned counsel appearing for the revision petitioner contended that the incident happened on the northern side of the public road, but the evidence in Crl. Rev.Pet. No.2767 of 2007 3 Ext.P3 mahazar shows that the incident happened on the southern side of the road. PW1 to PW3 deposed that the vehicle run over the right leg of the deceased. There is no specific identification of the accused. The witnesses identified the accused in the court alone before that, they did not depose anything about his identity. 4. Learned Public Prosecutor submitted that as per the evidence of PW1 to PW3 the incident was occurred on the northern side of the road even though in the Mahazar it was marked as near the southern road margin. Therefore, no reason to discard the evidence of the occurrence witnesses. 5. The principle of rash and negligent driving 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.2767 of 2007 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. 6. While adverting to the above argument, I have examined the place of occurrence mentioned by the investigating officer. The road at the place of occurrence lies east to west. The place of occurrence is marked as 40 cms west from the southern tar end. Prosecution examined PW1 to PW3 as the occurrence witnesses. The evidence of PW1 shows that the deceased Velunni Nair was proceeding through the northern side of the road towards west. Revision petitioner had driven the vehicle towards western side. When he reached at the place of occurrence, the vehicle hit against the deceased and the wheel of the bus run over the body of the deceased. As a result, he sustained serious injuries and while undergoing treatment he succumbed to the injuries. PW1 gave Ext.P1 statement to the Police. Analysing the evidence of this Crl. Rev.Pet. No.2767 of 2007 5 witness it is clear that the accident was occurred on the northern side. The shop of Avarutty facing the southern side that means, it situate on the northern side of the road. PW2 and PW3 supported the evidence of PW1. These witnesses also deposed that the incident was occurred on the northern side. But they deposed that the revision petitioner was driving the vehicle at a high speed. PW3 deposed that the shop of Avarutty situated on the northern side of the road. This evidence of PW1 to PW3 show that the accident occurred on the northern side but how the blood stains were found on the southern side of the road was not explained by the prosecution. PW3 in his oral evidence submitted that blood stains were found on the sand portion of the southern side. This inconsistent version creates a doubt in the credibility of the prosecution case. 7. The medical evidence shows that the deceased sustained serious head injury and he died due to the injury sustained in the accident. PW8 conducted postmortem examination on 31.08.2000 while he was Crl. Rev.Pet. No.2767 of 2007 6 working as Civil Surgeon, Government Hospital, Malappuram and Ext.P4 is the wound certificate. The medical evidence is supporting the prosecution case that the deceased sustained injuries in a motor accident and he died due to the injuries sustained in the accident. But how the accident occurred was not properly clear from the evidence of the occurrence witnesses. 8. In this context, I have considered 313 statement given by the accused in the trial court. When he was questioned by the learned Magistrate he submitted a written explanation that he was proceeding towards Kottakkal side through southern side of the road the deceased was standing on the northern side suddenly he crossed the road towards southern side. On seeing this, he diverted the bus towards northern side at that time, the deceased again came back to the northern side and the vehicle hit against the deceased. He made earnest effort to avoid accident but due to the negligent act of the deceased, the vehicle hit against him and he sustained serious injuries and subsequently succumbed Crl. Rev.Pet. No.2767 of 2007 7 to the injuries. Analysing the oral evidence of PW1 to PW3, the defence story stated by the revision petitioner has some relevancy. Even though the place of occurrence was marked as southern side, 40 cms towards north, the direct oral testimony of the witnesses show that the place of occurrence was on the northern side. Avarunni's shop was also on the northern side of the road. The deceased was also contesting for the coming Panchayath election and he was canvassing votes for the election. This direct evidence shows that there was negligence from the side of the deceased himself. 9. PW2 attested Ext.P2 inquest report. PW5 identified the body of the deceased. PW6 and PW7 attested Ext.P3 scene mahazar. PW9 is the Motor Vehicle Inspector who issued Ext.P5 certificate. PW10 prepared scene mahazar. A perusal of the evidence it is clear that there was negligence from the side of the deceased. 10. Apex Court in **Mahadeo Hari Lokre v. The State of Maharashtra [AIR 1972 Supreme Court 221]** held as follows: Crl. Rev.Pet. No.2767 of 2007 8 “If a pedestrian suddenly crosses a road without taking note on the approaching bus there is every possibility of his dashing against the bus without the driver becoming aware of it. The bus driver cannot save accident however slowly he may be driving and therefore he cannot be held to be negligent in such a case.” While appreciating the evidence of the occurrence witnesses the approach must be whether the evidence of PW1 read as a whole appears to have a ring of truth. It is necessary for the Court to scrutinise the evidence in view of the draw back and infirmities pointed out in evidence as a whole and evaluate them to find out whether it is against the evidence given by the prosecution witnesses. If there is minor discrepancy on trivial matters not touching the core of the case, Court cannot take hyper technical ground for disbelieving the prosecution evidence. Here, the place of occurrence is marked as southern side, 40 cms towards north. It creates a doubt in the credibility of the prosecution case. If it really raises a doubt in the mind of the Court with regard to the place of occurrence, it is not possible to believe the entire story Crl. Rev.Pet. No.2767 of 2007 9 highlighted by the prosecution. If any doubt is created in the story, the accused is entitled to get the benefit of doubt. It is the duty of the prosecution to prove the essential ingredients by establishing the charge against the accused. Therefore, an accused cannot be convicted on the basis of surmises or conjunctures or on any suspicion. 11. Apex Court in **Sheonandan Paswan v. State of Bihar [AIR 1983 SC 194]** held that if two interpretations are possible that one which is beneficial to the accused should be appreciated. In another decision, **Sharad Birchichand Sarda v. State of Maharashtra [1984 SCC Cri.487]** the apex court held that when any fact asserted by the prosecution turns doubtful, the benefit should go to the accused. 12. On a perusal of the evidence honestly and consciously, reasonable doubt can be raised against the occurrence stated by the prosecution witnesses and I am of the view that prosecution utterly failed to prove the case beyond reasonable doubt and the accused is entitled Crl. Rev.Pet. No.2767 of 2007 10 to get the benefit of doubt. Therefore the conviction and sentence passed by the Judicial First Class Magistrate Court, Malappuram under Secs.279 and 304(A) IPC which was upheld by the Additional Sessions Judge, Manjeri are set aside. The accused is acquitted and set at liberty. Revision petition is allowed to that extent. Sd/- **P.D. RAJAN, JUDGE** NS/26/10/2016 / True Copy / P.A. To Judge