Harilal s/o Pasupalam v. Circle Inspector of Police, Chathannoor, Kollam District; 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. 3444 of 2005 ( )** **---------------------------------** **AGAINST THE JUDGMENT IN CRL.APPEAL NO. 279/2001 of III ADDITIONAL SESSIONS COURT,KOLLAM DATED 17.11.2005** **AGAINST THE JUDGMENT IN CC 397/1997 of JUDICIAL MAGISTRATE OF FIRST CLASS-II, KOLLAM DATED 29.11.2001** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **---------------------------------------HARILAL, S/O.PASUPALAN,** **KUZHIVILA VEEDU, NEAR CHERUKAYAL PLAKKOTTU CHERRY, ADICHANALLOOR VILLAGE.** **BY ADV. SRI.D.KISHORE** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE:** **------------------------------------** **1. THE CIRCLE INSPECTOR OF POLICE, CHATHANNOOR, KOLLAM DISTRICT.** **2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **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.3444 of 2005 ---------------------------------------------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.279/2001 of III Additional Sessions Judge, Kollam. He was charge sheeted in C.C. No.397/1997 before Judicial First Class Magistrate Court-I, Kollam u/s.279, 337, 338 and 304A IPC. The learned Magistrate convicted the accused u/s.279 337, 338 and 304A IPC and sentenced to simple imprisonment for one month for offence u/s.279 IPC, simple imprisonment for one month u/s.338 IPC, simple imprisonment for three months and fine of ₹5,000/- with a default sentence of two months u/s.304A IPC. Against that, he preferred the above criminal appeal before III Additional Sessions Judge, Kollam, where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, he Crl.R.P. No.3444/2005 2 preferred this revision petition. 2. The charge against the accused was that on 27.3.1997 at 2.15 p.m., the accused had driven a bus bearing registration No.KRQ 7117 through Anchal-Ithikkara public road from north to south in a rash and negligent manner so as to endangering human life. When he reached near Ithikkara bridge the bus hit against a tree standing on the southern side of the road and he lost control and capsized into the Ithikkara river, as a result the passengers sustained serious injuries. One person standing in the river sustained serious injury and later succumbed to the injuries. Chathannoor Police registered a crime and after completing investigation, Circle Inspector of Police laid charge in the trial Court. During trial, prosecution examined PW1 to PW22 and marked Exts.P1 to P26. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. In support of his defence, accused examined DW1 to DW3. Crl.R.P. No.3444/2005 3 3. Heard both sides and perused the oral and documentary evidence. The revisional power conferred under Section 397 and 401 of the Code of Criminal Procedure on the High Court is a supervisory jurisdiction to correct the miscarriage of justice arising from the erroneous orders, which may arise from the misconception of law, irregularity of procedure or misreading of evidence. This revisional power is discretionary one and one cannot claim it as a vested right, when there is vested right in appeal. While exercising revisional jurisdiction, the petitioner has no such right, but he has the right to bring the case to the notice of the court and it is for the court to interfere in exceptional cases when it feels that substantial injustice has been done. 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 Crl.R.P. No.3444/2005 4 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 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. Rashness consists of dangerous or wanton act with knowledge that it may cause injury if it is done. The criminality in such a case in running the risk of such act in a reckless or indifferent manner which resulted in the consequences. Criminal negligence on the other hand is a Crl.R.P. No.3444/2005 5 gross and culpable neglect or failure to exercise reasonable and proper care and precaution to guard against injury either to the public generally or to an individual particularly. For ascertaining the rashness or culpable negligence in exercising reasonable care, I have examined the oral evidence of the witnesses. 6. The occurrence of rash and negligent driving was deposed by PW1. Prosecution examined PW2 to PW10 and PW16 the injured witnesses to prove the occurrence. The evidence of PW1 shows that he was travelling in the offending vehicle KRQ 7117 on 27.3.1997 at 2.15 p.m. She was sitting in the front seat of the bus and the revision petitioner was driving the vehicle at a high speed. When she reached at Ithikkara the vehicle hit against a tree standing on the left side of the road, the driver lost the control over the bus and capsized into the Ithikkara river. One person standing in the river sustained serious injury, while undergoing treatment he succumbed to the injuries. PW2 to Crl.R.P. No.3444/2005 6 PW4 and PW6 to 10 and 16 who are other injured in the accident deposed that they sustained serious injuries in the accident and accident was due to the rash and negligent driving by the revision petitioner. What is seen from the oral evidence of PW1 is that one Bhanu who was standing in the river sustained serious injury in the accident, he was removed to the hospital and while undergoing the treatment, he succumbed to the injuries. Analysing the evidence of PW1 and other injured, it is clear that the accident was due to the rash and negligent driving of the driver of the vehicle. 7. The medical evidence is corroborating the prosecution case. The injured were treated by PW19 and PW20. PW19 issued Exts.P7 to P19 wound certificates. PW20 issued Ext.P20 wound certificate. PW17 conducted postmortem and issued Ext.P5 postmortem certificate, which shows that the deceased sustained injuries on the chest and he died due to the injuries. From the evidence of PW1 to PW10, PW16, PW17, PW19, PW20, the wound Crl.R.P. No.3444/2005 7 certificates and the postmortem certificate, it is clear that PW1 to PW10, PW16 and Bhanu sustained injuries and Bhanu died due to the injuries sustained in the accident. 8. In this context, I have examined the defence contention put forward by the revision petitioner. His contention was that the accident had happened due to the mechanical defect of the vehicle. PW18 Motor Vehicle Inspector inspected the vehicle and issued Ext.P6 Inspection report. As per the Inspection report, no mechanical defect was noticed to the vehicle. Even though such a contention was raised, no question was asked to the MVI regarding the mechanical defect. PW18 deposed that the tyre rode was not broken and it is connected to tyre with a knuckle arm. The bolt of the knuckle arm was broken, which happened in the accident. While checking the brake, PW18 conducted an inspection of the vehicle and opined that repairing of the tire rode is not necessary for lifting the vehicle. Analysing the evidence of DW1 to DW3, it is clear that they had given Crl.R.P. No.3444/2005 8 inconsistent versions with regard to the occurrence. On the other hand, analysing the evidence of PW18, it is clear that no mechanical defect detected to the vehicle and the brake system was satisfactory. Therefore, deceased Bhanu sustained injuries and PW1 to PW10 and 16 also sustained injuries in the accident and subsequently, Bhanu died due to the injury sustained, which was caused due to the rash and negligent driving of the revision petitioner. The trial Court rightly analysed the evidence and convicted the accused. Therefore, the conviction and sentence passed by the trial Court do not warrant any interference. In my opinion, the Courts below rightly appreciated the oral and documentary evidence and convicted the accused. There is no miscarriage of justice in the above finding and this revision petition is dismissed accordingly. ## **P.D. RAJAN, JUDGE.** acd