George, S/o Luis v. S.I. of Police Kollamgode Police Station & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 14TH DAY OF JULY 2016/23RD ASHADHA, 1938** **Crl.Rev.Pet.No. 2252 of 2004 (B)** **--------------------------------AGAINST THE JUDGMENT IN CRL.APPEAL NO.2/1998 of ADDITIONAL SESSIONS FAST TRACK COURT -1, PALAKKAD DATED 07-08-2004** **AGAINST THE JUDGMENT IN CC 130/1994 of JUDICIAL MAGISTRATE OF FIRST CLASS,CHITTUR DATED 08-12-1997** **REVISION PETITIONER(S)/APPELLANT/ACCUSED.:** **----------------------------------------GEORGE, S/.O.LUIS, MANGALI HOUSE, ORAVANKODE, NENMARA, CHITTUR, PALAKKAD DISTRICT.** ## **BY ADV. SRI.BABU JOSEPH KURUVATHAZHA** **RESPONDENT(S)/COMPLAINANT AND STATE.:** **-------------------------------------** **1. S.I.OF POLICE, KOLLAMGODE POLICE STATION KOLLAMGODE, PALAKKAD DISTRICT.** **2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **R, BY PUBLIC PROSECUTOR SMT. M.G. LISHA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.2252 of 2004 ---------------------------------------------Dated this the 14[th] day of July, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.2/1998 of Additional Sessions Judge, Fast Track Court-I, Palakkad. He was charge sheeted in C.C.No.130/194 of Judicial First Class Magistrate Court, Chittur for having committed an offence punishable u/s.279, 337, 304A IPC. The learned Magistrate convicted the accused u/s.279, 337 and 304A IPC and sentenced to simple imprisonment for three months each u/s.279 and 337 IPC and simple imprisonment for one year and fine of 5,000/- with a default₹ sentence u/s.304A IPC. Against that, he preferred Crl. Appeal No.2/1998 before Additional Sessions Judge, Fast Track CourtI, Palakkad, where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, he preferred this revision Crl.R.P. No.2252/2004 2 petition. 2. The charge against the accused is that on 8.4.1994 at 14 hours he had driven a bus bearing registration No.KRP 9095 in a rash and negligent manner so as to danger human life through Pudunagaram-Kollengode public road from south to north and hit on the back side of a car bearing registration No.KLH 5761 came from opposite direction near Punthoni bus stop. As a result, the driver of the car sustained serious injurie and he succumbed to the injuries. Kollengode Police registered a crime and after completing investigation, Sub Inspector laid charge in the trial Court. In pursuance of the trial, prosecution examined PW1 to PW16 and marked Exts.P1 to P13. MO1 and Mo2 were marked as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. DW1 was examined in the trial Court. 3. Heard both sides. The learned counsel appearing for the revision petitioner submitted that the revision Crl.R.P. No.2252/2004 3 petitioner never committed any rash or negligent act and the courts below have erred in appreciating the evidence, facts and law in its proper perspective. ## 4. Apex Court in _**S.N. Hussain**_ v. _**State of Andhra**_ ## _**Pradesh**_ [1972 (3) SCC 18] held as follows: “(i) 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 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. In a case of accident on a level railway crossing where the gate is open and there is no train scheduled to pass at the time, the driver would be justified in driving his vehicle through the level crossing. Passenger trains have a time schedule and if a train is expected to come at about the time the appellant reached the level crossing, a regular driver of motor vehicles on that route may, perhaps, be found negligent in crossing the railway track, if any mischance, the gate was open. But in the case where a goods train not scheduled to pass the level crossing, just about the time the bus reached the spot and an accident takes place, the appellant cannot be held guilty of criminal negligence because he may not have known that a goods train would Crl.R.P. No.2252/2004 4 be coming at that moment. In such circumstances the appellant will not be guilty merely because he did not stop when the road signal wanted him to stop. Such a case will be a case of unavoidable accident because of the negligence of the gateman in keeping the gate open and inviting the vehicles to pass.” 5. The occurrence was deposed by PW1, PW6 and PW7. The evidence of PW1 shows that on 8.4.1994 at 2 p.m., he was travelling in the bus with PW2. The revision petitioner was driving the bus in an excessive speed from south to north. An ambassador car came there from the opposite direction and the bus hit against the car. The driver of the car thrown away and immediately he was removed to Hospital. The specific case of PW1 is that the accident was due to the rash and negligent driving by the revision petitioner. Even though he was cross examined by the defence counsel, no reasons are highlighted by the revision petitioner to discard his evidence. But in the trial Court, PW1 made an observation that he knew about the incident after hearing the sound. When bus stopped he alighted and seen the car laying on the road. In the circumstances, the Crl.R.P. No.2252/2004 5 trial Court not fully relied upon his evidence. 6. In this context, I have examined the evidence of PW6 and PW7, who were passengers in the vehicle. They deposed that the accident occurred due to the rash and negligent driving of the revision petitioner. He was driving the vehicle at a high speed and the car was proceeding through the road at slow speed. Analysing the oral evidence of PW6 and PW7 it is clear that the accident had occurred due to the fault of the revision petitioner. Even though there are some minor discrepancies in their evidence, the trial Court fully relied their oral evidence. Therefore, it appears that their evidence is reliable and it can be used for a conviction against the revision petitioner. In this context, it is relevant to notice the place of occurrence with the help of the scene mahazar. From Ext.P13 series (photos), it is clear that the bus came though the middle portion of the road. The tyre mark of the offending vehicle was also found in the photograph submitted by the prosecution. PW15 reported Crl.R.P. No.2252/2004 6 that the incident had occurred not due to the mechanical defect to the vehicle. Ext.P9 is the MVI report. The trial Court rightly analysed the evidence and convicted the accused u/s.279, 338 and 304A IPC. 7. The learned counsel appearing for the revision petitioner submitted that the revision petitioner is aged 61 years and suffering from various ailement and therefore, some leniency may be shown in the sentence. Apex Court in _**Chandramohanan Nair**_ v. _**State of Kerala**_ [1994 SCC (Crl) 1750] held as follows: “3. 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 merits in each case. The evidence on record i.e. 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 Crl.R.P. No.2252/2004 7 fine with default clause, if any, is confirmed. The appellant shall surrender and serve out the remaining portion of sentence, if any. With this modification of sentence, the appeal is dismissed.” 8. From the nature offence and the circumstances under which it was committed, I am of the view that the sentence imposed by the trial Court needs interference. The sentence imposed by the trial Court u/s.279 and 337 IPC are confirmed. But the sentence imposed u/s.304A IPC is modified and the revision petitioner is sentenced to simple imprisonment for three months and fine of 5,000/-under₹ the above Section. The sentence shall run concurrently. The Crl.R.P. is disposed of as above. ## **P.D. RAJAN, JUDGE.** acd