Girish v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN** **WEDNESDAY, THE 10TH DAY OF OCTOBER 2012/18TH ASWINA 1934** **Crl.Rev.Pet.No. 916 of 2002 ( )** **------------------------------CRA.266/1999 of ADDL.DISTRICT COURT (ADHOC), KOZHIKODE CC.638/1996 of J.M.F.C.,VADAKARA** **REVISION PETITIONER/APPELLANT/ACCUSED:** **----------------------------------------** **GIRISH, S/O. RAJAN, KOCHEA VEEDU, CHEMBAD AMSOM, PANNIYANNUR DESOM ARYAKKAL, PANOOR.** **BY ADV. SRI.GRASHIOUS KURIAKOSE** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **--------------------------------------** **STATE OF KERALA, (C.I OF POLICE, NADAPURAM), REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **PUBLIC PROSECUTOR, MS.MADHU BEN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **P.S.GOPINATHAN, J. -----------------------------Crl.R.P. No.916 OF 2002 -------------------------------Dated this the 10[th] day of October, 2012** ## **O R D E R ~~~~~~~** The Circle Inspector of Police, Nadapuram Police Station, in Crime No.45/1996, filed a final report against the revision petitioner accusing offences under Sections 279 and 304A IPC, alleging that at 6.p.m., on 8.3.1996, the revision petitioner drove an ambassador car bearing Reg. No.TN 37-A/7893 along Kozhikode-Kannur National Highway in a rash and negligent manner so as to endanger human life and near Kannookkara market the car knocked down late Narayana Kurup, a retired Sub Inspector, who was walking along the western side of the road from south to north and as a result Narayana Kurup sustained severe injuries to which he succumbed on the way to the Medical College Hospital, Kozhikode. 2. On the basis of Ext.P1 First Information Statement given by PW1, an onlooker, PW10, the Sub Inspector of Police, registered a case for which Ext.P5 First Information Report was prepared. The investigation was taken over by then Circle Crl.R.P.No.916/2002 2 Inspector of Police, Nadapuram, who was examined as PW14. PW14 was succeeded by PW15, who completed the investigation and submitted the charge sheet. 3. Responding to the process issued, the revision petitioner entered appearance and pleaded not guilty when the particulars of the offence were read over and explained. Therefore, the revision petitioner was sent for trial. On the side of the prosecution, PWs 1 to 15 were examined. Exts.P1 to P8 were marked. When questioned under Section 313 of the Code of Criminal Procedure, he took a plea of total innocence and stated that he was not driving the car at the alleged time. However, no defence evidence was let in. The learned Magistrate, on appraisal of the evidence, arrived at a conclusion of guilty. Consequently, the revision petitioner was convicted and sentenced to simple imprisonment for six months and two years respectively under Sections 279 and 304A IPC. 4. Aggrieved by the above conviction and sentence, he preferred Crl.A.No.266/1999 before the Sessions Judge, Kozhikode. The Additional Sessions Judge (Adhoc -II), to whom 3 Crl.R.P.No.916/2002 the appeal was made over, by judgment dated 22.4.2002, while confirming the conviction and sentence, dismissed the appeal. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this Revision Petition is preferred. 5. I have heard Sri.Gracious Kuriakose, the learned senior counsel appearing for the revision petitioner and Ms.Madhu Ben, the learned Government Pleader. The learned senior counsel for the revision petitioner took me through the relevant evidence as well as the relevant portions of the judgments of the courts below. 6. Prosecution had relied upon the testimony of PWs 1 to 3 in support of the prosecution case. PW3 turned hostile. Barring PW3, there is the testimony of PWs 1 and 2 regarding the occurrence. PWs 1 and 2 would harmoniously depose that while the deceased was walking towards north along the western side of the road, he was knocked down by the car driven by the revision petitioner. According to PW1, the car was driven at a speed exceeding 50kms. He had not attributed any negligence Crl.R.P.No.916/2002 4 against the revision petitioner. But, PW2 had attributed negligence against the revision petitioner. PWs 1 and 2 were subjected to searching cross examination. Though various suggestions were made to PWs 1 and 2, including that the deceased was attempting to cross the road, PWs 1 and 2 had denied the same. Hearing the testimony of PWs 1 and 2, they appear to be natural witnesses. It doesn't appear that they are falsely implicating the petitioner. The evidence of PW1 is corroborated by Ext.P1 First Information Statement given by him. Critically going through the evidence of PWs 1 and 2, other than certain minor discrepancies and embellishments, as found by the courts below, there is nothing to disbelieve their evidence regarding the occurrence. 7. Ext.P2 scene mahazar, wherein PW4 is an attestor, would show that the road at the spot of occurrence was having a width of 7.07ms and that the accident was at 82cms towards east from the western tar end. That would show that late Narayana Kurup was walking along the western side of the tar road. There is little material to conclude that Narayana Kurup had contributed any negligence to cause the accident. The evidence Crl.R.P.No.916/2002 5 of PW13, the Assistant Motor Vehicle Inspector, supported by Ext.P7 report would show that the vehicle was having no mechanical defect. Therefore, mechanical defect cannot be attributed as a cause for the accident. 8. According to the learned senior counsel, PW1 in cross examination stated that the car stopped at a distance of 10ms after hitting down Narayana Kurup. According to PW2, the car stopped at a distance of 5-6ms. Relying upon Rule 96 of the Central Motor Vehicle Rules, the learned counsel would submit that if the car was driven at a speed of 30kms, on application of break it could be stopped at a distance of 13ms. So, according to the learned senior counsel, by the evidence of PWs 1 and 2, it could be seen that the car was not driven at an extreme speed or at a speed beyond the control of the driver. So also, it was argued by the learned senior counsel that in cross examination, PW1 stated that there was tyre mark; but in the scene mahazar no tyre mark is noted. The learned counsel would further submit that it was an omission by the investigating officer and that the tyre mark at the spot of occurrence in a road accident case is a significant material to decide the negligence alleged against the 6 Crl.R.P.No.916/2002 driver and because of that omission of the investigating officer, the petitioner was prejudiced. Relying upon the decision reported in Nageshwar v. State of Maharashtra [1973 SC 165], the learned counsel would further submit that because of the failure of the investigating officer to note the tyre mark while preparing the scene mahazar, the negligence aspect is to be found against the prosecution. Critically going through the evidence of PWs 1 and 2, in the light of the argument advanced and the precedent referred, I find that though there is little material to conclude that the revision petitioner was driving at a speed beyond his control or at a speed more than what is notified, there is ample evidence on record to come to a conclusion that the revision petitioner could not stop the car without hitting the pedestrian walking along the roadside. Speed is not a criteria to determine the negligence, though sometimes it might be. The question is as to how vehicle was driven. Whether the driver was caring the pedestrians and other vehicles is the relevant aspect. If one drives a vehicle along a road without caring the pedestrians or other vehicles, irrespective of the speed, he is negligent in driving. The materials brought out in evidence would show that a vehicle was Crl.R.P.No.916/2002 7 coming from the opposite direction. According to the learned counsel, while giving side to the vehicle coming across, the driver might have driven a little left to the road. Even then, it is for the driver to see that the pedestrians walking along the road should not be knocked down. Even if it is on a National Highway, pedestrians have the right to walk through the road. Those who are on wheels have to see that even while giving side to a vehicle coming across, the vehicle should not hit down pedestrians along the side of the road. Caring pedestrians and other vehicles on road is the duty of every driver. If one fails there is negligence. Going by the evidence of PWs 1 and 2 and the spot of occurrence, I am not inclined to accept the argument of the learned senior counsel. What is inferable from the evidence on record is that the revision petition did not take care of the pedestrian walking along the road. Such an act would amount to negligence. Therefore, I find that the courts below had not committed any error, illegality or impropriety in appreciating the evidence and coming to a conclusion of the negligence on the side of the revision petitioner, who was driving the car. Crl.R.P.No.916/2002 8 9. The evidence of PW12, the Police Surgeon, supported by Ext.P6 would show that the death was due to the injury sustained to the head and abdomen. Regarding the cause of death there is no dispute. There is consistent evidence of PWs 1 and 2 that when Narayanakurup was taken to the Medical College Hospital, he breathed his last and it was due to the injuries sustained. In the above circumstance, I find that the conviction under Sections 279 and 304A IPC is sustainable and not liable to be interfered in exercise of the revisional powers. 10. The learned senior counsel for the revision petitioner relying upon the decision reported in Manish Jalan v. State of Karnataka [2008(8) SCC 225] sought for confining the sentence to fine. Having gone through the facts of the decision referred, I find that it is a decision on a given set of facts which cannot be totally applied to the case on hand. However, taking note that the incident occurred more than 16 years back, I find that it would be appropriate to modify the sentence and that a sentence of simple imprisonment for nine months under Section 304A IPC and a fine of Rs.5,000/- with order to disqualify the revision petitioner from driving any sort of vehicle for a period of one Crl.R.P.No.916/2002 9 year would meet the ends of justice. 11. In the result, the Revision Petition is allowed in part. While confirming the conviction, the sentence for offence under Section 304A IPC is reduced to simple imprisonment for a period of nine months and a fine of Rs.5,000/- (five thousand only). In default of payment of fine, the revision petitioner shall undergo simple imprisonment for a further period of two months. The revision petitioner is disqualified under Section 20 of the Motor Vehicles Act from driving any sort of vehicle for a period of one year. The revision petitioner is directed to surrender before the trial court which shall see the execution of sentence including endorsement of disqualification in the driving licence and report compliance. ## **(P.S.GOPINATHAN, JUDGE)** ## **ps/10/10**