Gopalakrishnan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 29TH DAY OF JULY 2016/7TH SRAVANA, 1938** **CRL.REV.PET.NO. 1684 OF 2005 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.16/1999 OF ADDITIONAL SESSIONS JUDGE-II, MAVELIKKARA DATED 07.06.2005** **AGAINST THE JUDGMENT IN CC NO.229/1994 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KAYAMKULAM DATED 24.12.2998** **-----------------------------** **REVISION PETITIONER(S)/APPEALLANT/ACCUSED :** **----------------------------------------** **GOPALAKRISHNAN, S/O.NANU, THUNDIL VEEDU, PATHIYOOR, PADINJAREMURI, PATHIYOOR VILLAGE, KARTHIKAPPALLY TALUK.** **BY ADVS.SRI.M.K.DAMODARAN (SR.) SRI.M.P.PRABHANANDAN** **RESPONDENT(S)/COMPLAINANT : -------------------------** **THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.M.G.LISHA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** **P.D. RAJAN, J. ------------------------------Crl. R.P. No.1684 of 2005 ---------------------------------Dated this the 29[th] day of July, 2016** ## **O R D E R** This revision petition is preferred by the accused against the concurrent judgment in Criminal Appeal No.16 of 1999 of the Additional Sessions Judge-II, Mavelikkara. He was charge sheeted by the Judicial First Class Magistrate, Kayamkulam in C.C. No.229 of 1994 under Secs.279 and 304(A) of the Indian Penal Code ( 'IPC' for short). The learned Magistrate convicted the accused and sentenced him to simple imprisonment for six months under Sec.304(A) IPC. No separate sentence was imposed under Sec.279 IPC. Against that, he preferred the above Criminal Appeal, where the learned Additional Sessions Judge-II, Mavelikkara dismissed the appeal. Being aggrieved by that, the accused preferred this revision petition. 2. The charge against the accused is that on 30.01.1994 at 10.30 a.m., the accused had driven an ambassador car KL-5-3584 in a rash and negligent Crl. R.P. No.1684 of 2005 2 manner through Kareelakulangara-Pathiyoor public road and it knocked down a male child aged 2½ years. As a result, the child sustained serious injuries and he succumbed to the injuries at Government hospital, Kayamkulam. Kareelakulangara Police registered a crime and after completing investigation, Circle Inspector, Kareelakulangara Police station laid charge in the trial court. To substantiate the allegation, prosecution examined PW1 to PW9 and marked Exts.P1 to P12 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. When the matter came up for hearing, the learned counsel appearing for the revision petitioner submitted that the revision petitioner is no more. As per the direction of this court, Sub Inspector, Kareelakulangara Police station submitted a death certificate of the revision petitioner issued from the Registrar of Births and Deaths, Ambalapuzha North ## Crl. R.P. No.1684 of 2005 3 Grama Panchayath which is marked as Ext.C1. 4. According to Sec.394 of the Code of Criminal Procedure there is abatement of appeal after the death of the accused. But no such abatement is possible in the case of revision petition. Sec.394 Cr.P.C. reads as follows: Abatement of appeals: (1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused. (2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant: Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate. Explanation.- In this section, “near relative” means a parent, spouse, lineal descendant, brother or sister. Apex court in various decisions like **Pranab Kumar Mitra v. State of West Bengal and Another [AIR 1959 SC 144], State of Kerala v. Narayani Amma Kamala Devi and others [AIR 1962 SC 1530]** , held that after the death of the revision petitioner or Crl. R.P. No.1684 of 2005 4 default of his legal heirs to pursue the revision, the jurisdiction of the high court to decide the matter after it has been taken on file, on its merit does not cease. 5. Prosecution examined PW1 as the occurrence witness in the trial court. His evidence shows that on 30.01.1994 at 10.30 a.m., the incident occurred on the NH-47 on the Kareelakulangara –Pathiyoor road. PW1 was standing in his property near the place of occurrence. The deceased and his father PW2 came there. Since the child had not worn any chappels, he told PW2 to take back the child at home. Subsequently, PW2 took back the child in his house and returned. Thereafter, the child again came near them at that time, the vehicle KL-5A/3584 driven in a rash and negligent manner knocked down the child. As a result, he sustained serious head injuries. Immediately he was removed to General hospital, but the child succumbed to the injuries. PW1 identified the driver. This witness was cross examined by the defence counsel, nothing has been brought out to discredit his evidence. PW2 supported the evidence of Crl. R.P. No.1684 of 2005 5 PW1. Analyzing the oral evidence of PW1 and PW2, it is clear that the incident was occurred due to the rash and negligent driving of the revision petitioner. 6. The medical evidence is corroborating the oral evidence of PW1 and PW2. PW6 conducted postmortem examination of the deceased and issued Ext.P5 certificate. The death was due to massive intra cranial hemorrhage due to trauma sustained which was sustained in a motor accident. This evidence shows that the deceased sustained serious injuries in the accident and succumbed to the injuries. The witnesses also identified the driver. PW5, who is the brother of the registered owner took the vehicle as per Ext.P3 kychit. Ext.P2 is the authorization letter. In Ext.P5 reply notice, the owner reported that revision petitioner was the driver at the time of accident. PW4 identified Ext.P1 mahazar. The Sub Inspector of Police, Kareelakulangara received Ext.P8 information and on the basis of that he registered Ext.P9 FIR. PW7 prepared Exts.P6 and P7. PW8 prepared Ext.P1 vehicle mahazar. A perusal of the evidence of the Crl. R.P. No.1684 of 2005 6 witnesses shows that the accident was due to the rash and negligent driving of the revision petitioner. 7. The principle of rash and negligent driving has 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 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. Having regard to the facts and circumstances of the case and the evidence, it is clear that the rash and negligent driving of the accused/revision petitioner was proved. The trial court rightly considered the evidence Crl. R.P. No.1684 of 2005 7 and convicted the accused which was upheld by the appellate court. There is no illegality or irregularity in the above finding. There is no merit in this revision petition and it is dismissed accordingly. NS/04/08/2016 Sd/- **P.D. RAJAN, JUDGE** / True Copy / P.A. To Judge