Jose Joseph v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 19TH DAY OF JULY 2016/28TH ASHADHA, 1938** **Crl.Rev.Pet.No. 2466 of 2004 ( )** **--------------------------------AGAINST THE JUDGMENT IN CRL.APPEAL NO 14/2003 of ADDITIONAL SESSIONS COURT,THODUPUZHA DATED 30-06-2004** **AGAINST THE JUDGMENT IN CC 182/2000 of CHIEF JUDICIAL MAGISTRATE COURT,THODUPUZHA DATED 03-01-2003** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------JOSE JOSEPH, PAIKADA HOUSE, THULANGANADU KARA, MUTTOM VILLAGE.** **BY ADVS.SRI.SUNNY XAVIER SRI.ANIL J.KOCHUPARAMBIL** ## **RESPONDENT(S)/RESPONDENT/COMPLAINANT:** **--------------------------** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. M.G LISHA.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.2466 of 2004 ---------------------------------------------Dated this the 19[th] day of July, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.14/2003 of Additional Sessions Judge, Thodupuzha. He was charge sheeted in C.C.No.182/2000 before Chief Judicial Magistrate, Court, Thodupuzha u/s.279, 337, 338 and 304A IPC. The learned Chief Judicial Magistrate convicted the accused u/s.279, 337, 338 and 304A IPC and sentenced the accused u/s.304A IPC for imprisonment for six months and fine of 50,000/- and no separate sentence for₹ other offence. Against that, the accused preferred the above criminal appeal before Additional Sessions Judge, Thodupuzha, where the learned Additional Sessions Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision petition. 2 Crl.R.P. No.2466/2004 2. The charge against the accused is that on 29.1.2000 at 2 p.m., he had driven a bus KL-6/6188 in a rash and negligent manner so as to endanger human life along the Thodupuzha- Moolamattam public road and when it reached at Aarakulam, it hit against a jeep KL 5D 4998, as a result two passengers died and others sustained grievous injuries. Circle Inspector of Police, Thodupuzha laid charge in the trial Court. To substantiate the charge, prosecution examined PW1 to PW27 and marked Exts.P1 to P13 series. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He examined DW1 in the trial Court. 3. The main argument advanced by the learned counsel appearing for the revision petitioner is that there is no direct evidence to prove the occurrence. The trial Court relied the trip sheet Ext.P4 to prove the identity. When there is no direct evidence to prove the rash and negligent driving, the production of the trip sheet alone itself is not sufficient Crl.R.P. No.2466/2004 3 for a conviction u/s.304A IPC . 4. In reply, the learned Public Prosecutor contended that the name of the accused is mentioned in the trip sheet. Therefore, the statutory presumption can be drawn. Rule 224 of the Motor Vehicles Rules mentions about the trip sheet and Rule 225 mentions its custody. Therefore, it is a valid document kept by the conductor or driver in the bus. This document can be used for connecting the accused with the crime and no illegality in receiving that document, if it is validly obtained from proper custody, by the investigating officer. ## 5. 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 Crl.R.P. No.2466/2004 4 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.” 6. While adverting to the above argument, I have scrutinized the evidence in this case. PW1 to PW9, PW11 and PW23 were examined as occurrence witnesses. Their oral evidence shows that they were passengers in a jeep and no direct knowledge about the driver of the bus. It is true that the bus was plying from Moolamattom to Thodupuzha in a rash and negligent manner so as to endangering human Crl.R.P. No.2466/2004 5 life and hit against the jeep, as a result the vehicle capsized, two persons died and others sustained injuries in the incident. What is seen from the evidence of PW26 is that he examined some of the injured and issued Ext.P13 series wound certificate. He noticed that two persons sustained several injuries and after examination, he issued Ext.P13 series document. PW22 conducted postmortem examination and issued Ext.P8 and P9 certificates. A perusal of the postmortem certificate shows that the death is due to internal bleeding and abdominal liver injury. Accepting the evidence of PW22 and PW26, both courts observed that they sustained serious injury in the accident and the death was due to the injuries sustained in the accident. I have no disagreement with the above observation made by the Courts below. 7. Even though rash and negligent driving was alleged by the prosecution, no evidence has been adduced to prove the rash and negligent driving of the bus by the Crl.R.P. No.2466/2004 6 revision petitioner. Therefore, it is the duty of the prosecution to prove that the revision petitioner had driven the vehicle in a rash and negligent manner endangering human life, which is the primary factor in this case. Now the question is who is the driver of the vehicle was not proved in v. this case. Apex Court in _**State of Hariyana Sher Singh**_ [2008(15) SCC 571] held that there being no material to show that the vehicle was being driven in a rash and negligent manner, a conviction cannot be maintainable. This Court in _**Krishnankutty**_ v. _**State of Kerala**_ [1988 (1) KLT 401] held that an important ingredient of an offence of this kind is the identity of accused. Evidence should be available from the trip sheet of the vehicle, from the owner of the vehicle, if the owner himself is not the driver, and from several other circumstances. Analysing the evidence in this case, it is found that the evidence is shabby and vague. The identity of the accused cannot be traced out from other evidence. PW25 obtained Ext.P4 trip sheet but it is only a Crl.R.P. No.2466/2004 7 connecting evidence along with other evidence, therefore trip sheet alone is not sufficient for a conviction. The important ingredient of the offence of identity is relevant **.** In the absence of specific evidence, a moral conviction is not a proof for legal evidence. Whatever be the nature of the crime, it is the duty of the prosecution to prove the case beyond reasonable doubt. In the absence of such evidence, the conviction and sentence passed by the trial Court u/s.279, 337, 338 and 304A IPC is set aside and the accused is acquitted and set at liberty. **P.D. RAJAN, JUDGE.** acd