Jose, S/o Stephen v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** ## **TUESDAY, THE 18TH DAY OF SEPTEMBER 2012/27TH BHADRA 1934** ## **Crl.Rev.Pet.No. 1231 of 2004 (D)** **--------------------------------------------[CRL.A.NO.101/2003 OF THE ADDITIONAL SESSIONS JUDGE, (ADHOC-I), THODUPUZHA, CC.NO.347/1998 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ADIMALY]** **...............** ## **PETITIONER/APPELLANT/ACCUSED:** **----------------------------------------------------** **JOSE, S/O. STEPHEN, KAVIPURAYIDATHIL HOUSE, MUNDIKOMBU KARA, KANTHALLUR, NOW RESIDING AT KAMPIPURAYIDATHIL HOUSE, VELLATHOOVAL P.O, IDUKKI.** **BY ADVS.SRI.B.RAMAN PILLAI, SRI.GEORGE PHILIP, SRI.R.ANIL, SRI.RAJU RADHAKRISHNAN, SRI.DELVIN JACOB MATHEWS, SRI.ANIL K.MUHAMMED.** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **------------------------------------------------------------------** **STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.M.T. SHEEBA.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= Crl. R.P. No. 1231 of 2004 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 18[th] day of September, 2012. ## O R D E R The accused in C.C. No. 347/1998 before the Judicial First Class Magistrate-I, Adimali is the petitioner herein. He was prosecuted for offences under Sections 279, 337 and 338 of the Indian Penal Code. The prosecution case was that on 27.4.1998, the accused drove the jeep bearing Reg. No. KL 6/4388 through Anachal-Munnar road rashly and negligently and when it reached Pallivasal village, Chithirapuram Kara, it hit CW1, thereby causing fracture on the leg of CW1. The Magistrate found the petitioner guilty under Sections 279 and 338 of the Indian Penal Code and sentenced him to undergo simple imprisonment for one month for the offence under Section 279 and to pay a fine of Rs. 500/- and simple imprisonment for three months for the offence under Section 338 Indian Penal Code and to pay a fine of Rs. 1000/-. In default of payment of fine, the accused was to undergo simple imprisonment for 15 days more. The sentence was directed to run concurrently. The petitioner was acquitted of the offence under Section 337 of the Indian Penal Code. The petitioner filed Crl. A. No. 101/2003 before the Addl. Sessions Judge (Adhoc-I), Thodupuzha, who confirmed the conviction and sentence. The judgments of the courts below are under challenge in this Criminal R.P. 2. The petitioner contends that the appreciation of evidence by the courts below is perverse. According to him, the prosecution themselves have set up two sets of evidence in the Crl. R.P. No. 1231 of 2004 -: 2 :- matter of the place of occurrence. According to him, the scene mahazar itself would point out the scene of occurrence as the tar end of the road, which is supported by PW6, who proved the scene mahazar. The witnesses examined on behalf of the prosecution would state that the place of occurrence is beyond the tar end by the side of the road. Therefore, according to the petitioner, in view of the decision of this Court in **Vijayakumar and others v. State** , 1994(2) KLJ 903, when two sets of evidence are let in by the prosecution, the courts should reject both and acquit the accused. It is further submitted that there is deviation of the stand of PW1 from the First Information Statement given by him, in the evidence adduced by him. It is pointed out that in the First Information Statement he did not specifically name the accused as the driver of the offending vehicle or the number of the vehicle. His statement is to the effect that a jeep with the name 'Kannai', hit him. The learned counsel for the petitioner points out that such a case was conspicuously absent in the whole of the prosecution case. According to him, even the evidence of PW1 does not support such a case. On the other hand, PW1 would categorically deny having mentioned the name of the jeep to the police, which, according to the learned counsel for the petitioner, is a very material contradiction, which would go to the root of the prosecution case. It is further submitted that while giving evidence, PW1 himself admitted that he was given the evidence on the basis of the photo copies of the documents of the prosecution supplied to him, which would go to show that PW1 was a tutored witness. Crl. R.P. No. 1231 of 2004 -: 3 :- Lastly, it is contended that both the courts below discussed only the evidence in support of the prosecution and did not even refer to the evidence in support of the defence. He would submit that this is clearly against the decision of a Division Bench of this Court in **George v. State of Kerala** , 1959 KLT 1101. The petitioner also points out that for proving an offence of rash and negligent driving, it is not sufficient to prove simple lack of care which may constitute civil liability. But the prosecution should prove a very high degree of negligence which would answer the epithet “reckless” which has not been done in this case. In support of that contention, the learned counsel for the petitioner would rely on the decision of the Supreme Court in **Syed Akbar v. State of Karnataka** , AIR 1979 SC 1848. 3. In answer to the contentions of the petitioner, the learned Public Prosecutor would submit that the so called discrepancies in the evidence are not material enough to throw out the prosecution case. She would point out that actually, there is no contradiction in terms as such in the matter of giving the name of the vehicle. Apart from the fact that PW1, at a time when he was in great pain and was administered with pain killers, had given the name of the jeep, no effective cross examination in respect of the same bringing out any material contradiction in the evidence has been done by the defence. She points out that all the witnesses categorically say that the injured was standing by the side of the road and the vehicle driven by the accused hit him at a place away from the tarred road. According to her, the fact that the scene of occurrence is Crl. R.P. No. 1231 of 2004 -: 4 :- beyond the road itself would be sufficient to apply the doctrine of res ipsa loquitur, since if the petitioner was not rash and negligent, the accident would not have occurred by hitting PW1 who was standing by the side of the road. The learned Public Prosecutor would also point out that the petitioner had no case that any of the witnesses had any motive for implicating the petitioner wrongly in the case. It is further pointed out that two of the eye witnesses, including the injured, were young boys aged only 12 years at the time of accident and their evidence should be appreciated in that perspective. They have absolutely no reason whatsoever to implicate the petitioner wrongly in the case. It is the contention of learned Public Prosecutor that the witnesses had given categoric evidence to the effect that after the accident the injured PW1 was taken to the hospital in the same jeep, which caused the accident itself, which would go a long way to prove the identity of the vehicle and the accused. It is further pointed out that all the witnesses would assert that the petitioner was a person who is usually seen in the locality driving a jeep carrying milk, which the offending vehicle was. Therefore, all the witnesses knew the petitioner by sight and they identified the petitioner as the person who was driving the vehicle at the relevant time. Therefore, there could not have been any doubt as to the identity of the vehicle and the accused, is the contention raised. 4. I have considered the rival contentions in detail. 5. Despite the persuasive arguments of the learned counsel for the petitioner, I am unable to subscribe to the Crl. R.P. No. 1231 of 2004 -: 5 :- contentions raised by him. It is true that in the First Information Statement, PW1 referred to a name for the jeep. It is also true that the prosecution did not choose to bring out the name at the time of evidence. But I am of opinion that that discrepancy, if at all it is a discrepancy, cannot have the consequence of disbelieving the prosecution evidence. PWs 1 and 2, who are eye witnesses, out of whom PW1 is the injured witness, have categorically asserted that they were standing by the side of the road when the vehicle driven by the petitioner at great speed suddenly came and hit PW1. In fact, in cross examination, the accused asked PW1 as to whether or not the accident occurred when the vehicle was abruptly turned to avoid collision with the jeep coming from the opposite direction. Of course, in further cross examination, the accused has put a suggestion that the accident occurred while PW1 attempted to cross the road. But the overall effect of the evidence of PW1 is that the vehicle hit him while he and PWs 2 and 3 together were standing by the side of the road. The same is corroborated by the evidence of the other witnesses also. Despite the contradiction tried to be pointed out by the learned counsel for the petitioner on the basis of the word 'tar end' occurring in the scene mahazar and the evidence of PW6, who proved the scene mahazar, I am not satisfied that the same is sufficient even to put a doubt on the evidence of PWs 1 and 2. The scene of occurrence as the 'tar end' in the scene mahazar cannot be the actual place of occurrence as such. It need not exactly mean that the accident occurred inside the tar end. When PWs 1 and Crl. R.P. No. 1231 of 2004 -: 6 :- 2 categorically asserted that they were standing by the side of the road, especially when they have nothing to gain by stating a falsehood, I am of opinion that, that evidence should be believed. I am not satisfied that there are two sets of evidence adduced by the prosecution as contended by the petitioner. Therefore, there is no question of application of the decision cited in that regard. Of course, in the decision of the Supreme Court in **Syad Akbar's case** (supra) the standard of proof required in the case of rash and negligent driving has been spelled out. But, here is a case where the accident occurred when PW1 was standing by the side of the road where the vehicle driven by the petitioner was not expected to be there. The same coupled with the suggestion put by the accused himself that the accident occurred when he suddenly turned the vehicle to avoid collision with the jeep which was coming from the opposite direction, would go to show that the accident occurred because of culpable negligence which would answer the epithet 'reckless' in driving the vehicle, as held in the decision of the Supreme Court. 6. I also do not find any substance in the contention of the petitioner that the courts below have appreciated only the evidence in support of the prosecution and ignored the evidence brought out by the accused in cross examination. I am of opinion that the courts below have referred to the evidence in favour of the accused as well. In any event, despite my considering both the evidence in support and against the accused, I am unable to come to a conclusion in favour of the petitioner. Crl. R.P. No. 1231 of 2004 -: 7 :- 7. From the overall appreciation of the evidence adduced, I am satisfied that the prosecution has proved the guilt of the petitioner beyond a reasonable doubt. Therefore, I am not inclined to interfere with the conviction of the petitioner entered by the courts below. But, I am inclined to confine the sentence to one of fine alone in the particular facts and circumstances of the case. 8. Accordingly, the sentence of imprisonment on both grounds is set aside The sentence is confirmed to one of fine alone. The petitioner shall pay the fine of Rs. 500/- for the offence under Section 279 I.P.C and the fine of Rs. 1000/- for the offence under Section 338 I.P.C. In default of payment, the petitioner shall undergo simple imprisonment for a period of one month. The Criminal R.P. is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/ [True copy] P.S to Judge.