Ismail v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 10TH DAY OF MARCH 2020 / 20TH PHALGUNA, 1941** ## **Crl.Rev.Pet.No.1027 OF 2004(C)** **Crl.A 214/2002 DATED 10-03-2004 OF ADDITIONAL SESSIONS** **COURT, NORTH PARAVUR** **CC 745/1999 DATED 25-03-2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ALUVA** ## **REVISION PETITIONER/S:** **ISMAIL** **S/O.PAREED, VELLOORKODATHIL VEEDU, NEAR MUTTOM BUS STOP, MUTTOM DESOM, ALUVA WEST VILLAGE.** **BY ADVS. SRI.K.C.SANTHOSHKUMAR SMT.ANUPAMA JOHNY** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SR.GP.JAYASURYA B.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY** **HEARD ON 14.02.2020, THE COURT ON 10.03.2020, PASSED THE FOLLOWING:** Crl.R.P.No.1027 of 2004 2 ## **ORDER** Dated this the 10[th] day of March, 2020. **The revision petitioner stands convicted and sentenced for the offences under Sections 279 and** **338 of the Indian Penal Code. The appeal against his conviction and sentence having been dismissed,** **the revision petition is filed assailing the judgments of the trial and appellate courts.** **2. The prosecution allegations, which led to the conviction of the revision petitioner, are as under:-** **On 27.02.1999 by about 5 p.m, the lorry bearing registration No.KLR 9705 driven by the accused in a rash and negligent manner on the Kakkanad -Edachira road, hit on the bicycle pedalled by PW1 and caused grievous injuries to PW1; the cyclist and PW2; the boy sitting on the** Crl.R.P.No.1027 of 2004 3 **cross bar of the bicycle.** **3. The evidence in the case consists of the oral testimony of PW1 and PW2 who are the injured, PW3; an alleged eye witness, PW4; the Assistant Motor Vehicle Inspector, who had inspected the lorry. PW5; an attester to the scene mahazar and PW6 and PW7; the Police officials who conducted investigation. Exts.P1 to P7 documents were also marked. The accused denied the incriminating circumstances put to him during questioning under Section 313 Cr.P.C and chose not to adduce any defence evidence.** **4. The trial court, on appreciation of evidence, found the prosecution to have succeeded in proving that the accident, resulting in grievous injuries to PW1 and PW2, was due to the rash and negligent manner in which the accused had driven the lorry. In appeal, the appellate court** Crl.R.P.No.1027 of 2004 4 **upheld the conviction and sentence, relying on the evidence of PW1 to PW3; the injured and the independent witness, who stated that the accused had driven the lorry at high speed.** **5. Heard Sri.K.C.Santhosh Kumar, learned Counsel for the revision petitioner and Sri.B.Jayasurya, learned Senior Public Prosecutor.** **6. The learned counsel for the revision petitioner assails the finding of guilt, conviction and sentence on the following grounds:-** **(i) Complete absence of evidence to prove that the accused had driven the vehicle in a rash and negligent manner.** **(ii) No evidence to connect the accused with the accident, except the testimony of PW3, which is unbelievable.** **(iii) Failure to bring forth medical evidence to prove the injuries, if any, sustained by PW1** Crl.R.P.No.1027 of 2004 5 **and PW2, without which the courts below could not have come to the conclusion that PW1 and PW2 had sustained injuries in the accident.** **7. Elaborating on the first ground of challenge, the learned counsel referred to the oral testimony of PW1 to PW3. It is pointed out that PW1 had clearly stated that at the place of occurrence, the road was sloping from east to west and that, PW1 was speeding down hill when the accident occurred. Of course, he later corrected himself and said that the lorry had come at high speed. PW2 also stated that the lorry was driven at high speed. According to PW3 also, the reason for accident was over speeding of the lorry. The learned Counsel points out that, none of the three witnesses had stated that the accident had occurred as a result of rash and negligent driving of the lorry by the accused.** Crl.R.P.No.1027 of 2004 6 **8. The next challenge is against the identification of the accused. PW3 had identified the accused standing in the dock to be the driver of the lorry. In cross-examination, PW3 stated that at the time of accident he had seen the accused sitting inside the lorry through the side mirror of his scooter and after the accident, had seen the driver coming out of the vehicle. To a specific suggestion that he could identify the accused to be the driver only because the accused was the person in the dock, PW3 did not give a clear answer. The learned counsel contends that it was highly improbable for PW3, who, after the accident on 27.02.1999, was seeing the accused for the first time on 18.09.2001, to have identified him as the driver of the offending vehicle.** **9. Elaborating on the third contention, the learned Counsel would submit that by its failure** Crl.R.P.No.1027 of 2004 7 **to examine the Doctor and mark the wound/treatment certificate, the prosecution had miserably failed to prove that PW1 and PW2 had suffered any injury, let alone grievous injury, in the accident.** **10. I find substantial force in the contentions urged on behalf of the revision petitioner. The offence under Section 279 would be attracted only when a person drives a vehicle on a public way in a manner so rash or negligent as to endanger human life, or in a manner likely to cause hurt or injury to any other person. Section 338 is attracted when grievous hurt is caused to any person by doing an act so rashly or negligently as to endanger human life or the personal safety of others. A reading of the provisions would reveal that the crucial ingredient for attracting the offences under Sections 279 and 338 is the act of driving the** Crl.R.P.No.1027 of 2004 8 **vehicle in a rash or negligent manner with the knowledge that by such driving, death or hurt may be caused to others. Therefore, speeding of the vehicle, even if proved, by itself, is not sufficient to hold that the vehicle was being driven in a rash and negligent manner. Hence, in the absence of evidence that the accident had occurred due to rash and negligent driving of the vehicle by the accused, he could not have been convicted.** **11. The accused was identified to be the driver of the vehicle, based on the oral testimony of PW3. As observed earlier, PW3 had stated that, after the date of accident, he was seeing the accused for the first time in court. PW3 also stated that he had seen the accused sitting inside the lorry through the side mirror of his scooter and had, after the accident, seen the accused come** Crl.R.P.No.1027 of 2004 9 **out of the vehicle. The question arising for consideration is whether these fleeting glimpses of the driver of the lorry, more than two years back, would have been sufficient for PW3 to identify the accused as the person who had driven the lorry. Under similar circumstances, this Court, in** _**Basheer v. State of Kerala [2011 (1) KLD 41],**_ **had held the identification to be bad, entitling the accused to the benefit of doubt. The relevant portion of the decision in** _**Basheer**_ **'s case reads as follows:-** _**“6. What remains is only the evidence of PW 1. True, PW 1 identified petitioner as the driver of the Trucker from the box. But, PW 1 deposed that he did not see the driver after the fateful day and the accused was not shown to him, even, during the investigation. When PW 1 was asked whether the accused was having beard when he saw him at the time of the incident, PW 1 said, he cannot say. No data was furnished by PW1 to identify the petitioner as the driver. Evidence of PW 1 shows that he had no previous acquaintance with the petitioner and had not even seen the petitioner earlier to the date of the**_ Crl.R.P.No.1027 of 2004 10 _**incident or thereafter, till he saw the petitioner from the box. In such circumstances, his identification from the box and that too, based on no data, should not have been accepted by the Courts below. There is no other evidence to show that petitioner was driving the Trucker on that fateful day. If that be so, conviction of the petitioner for the offences under S.279 and S.304(A) of Indian Penal Code is illegal, on the failure of the prosecution to prove that petitioner was driving the Trucker on that day. Hence, the conviction can only be set aside. Revision is allowed. Conviction of the petitioner for the offences under S.279 and S.304(A) of Indian Penal Code in CC No. 521/1995 by Judicial First Class Magistrate - I, Aluva, as confirmed by Additional Sessions Judge, North Paravur in Crl A No. 338/2000, is set aside. Petitioner is found not guilty of the offences. He is acquitted.”**_ **12. With regard to the third ground of** **challenge, which is based on the failure of the prosecution to prove the injuries allegedly sustained by PW1 and PW2, the learned Senior Public Prosecutor would submit that for attracting the offence under Section 279, the only requirement is driving of the vehicle in a rash or negligent manner so as to endanger human life and** Crl.R.P.No.1027 of 2004 11 **there is no further requirement of an accident having occurred as a result of such rash and negligent driving. I am in agreement with the argument advanced by the Government Pleader. Going by the wording of Section 279, the mere act of driving the vehicle in a rash or negligent manner as to endanger human life would attract the offence. Therefore, the omission to prove the injuries sustained by PW1 and PW2 in the accident will not vitiate the trial for the offence under Section 279. But, as far as Section 338 is concerned, the grievous hurt suffered by the victim, as a result of rash and negligent driving should necessarily be proved, which the prosecution, as far as the instant case is concerned, had failed to do.** **13. The contentions discussed above and the conclusion arrived at compel me to hold that the** Crl.R.P.No.1027 of 2004 12 **trial court had committed an error in convicting the accused, in spite of the fatal defects in the prosecution case. It necessarily follows that the appellate court judgment which upheld the conviction and sentence cannot also be sustained.** **In the result, the criminal revision petition is allowed by setting aside the impugned judgments and acquitting the revision petitioner. The bail bond executed by the revision petitioner will stand cancelled.** Sd/- **V.G.ARUN JUDGE** Scl/10.03 Crl.R.P.No.1027 of 2004 13