Karuppaswamy v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 25TH DAY OF MAY 2016/4TH JYAISHTA, 1938** **Crl.Rev.Pet.No. 1184 of 2004 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.156/2001 OF ADDITIONAL SESSIONS COURT,THODUPUZHA DATED 20-02-2004** **AGAINST THE JUDGMENT IN CC NO.283/1998 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, DEVIKULAM DATED 22-06-2001** **-------------------------** **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **-----------------------------------------** **KARUPPASWAMY, S/O LAKSHMANAN, NETTIMODU DIVISION, MATTUPETTY ESTATE, KDH VILLAGE, IDUKKI.** **BY ADVS.SRI.P.VIJAYA BHANU SRI.TONY MATHEW** **RESPONDENT(S)/RESPONDENT/COMPLAINANT::** **--------------------------------------** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. MADHUBEN M.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. R.P. No.1184 of 2004 ---------------------------------Dated this the 25[th] day of May, 2016** ## **O R D E R** This criminal revision petition arises out of the the judgment in Criminal Appeal No.156 of 2001 of the Additional Sessions Judge, Thodupuzha in which the appellate court confirmed the conviction of the revision petitioner. He was charge sheeted in C.C. No.283 of 1998 by the Judicial First Class Magistrate Court, Devikulam under Secs.279 and 304A of the Indian Penal Code ( 'IPC' for short). The charge against the accused is that on 18.12.1997 at 2.45 p.m., he had driven a lorry no.KBF9743 in a rash and negligent manner through NH49 from Head Works to Munnar, when it reached in front of the tea shop of one Murukayya near Moolakkada in KDH village, the vehicle hit on the body of one Palpandy who was walking through the side of the road. As a result, Palpandy sustained serious injuries, while taking him to hospital, he succumbed to the injuries. Munnar Police registered Crime No.212 of 1997 and after completing Crl. R.P. No.1184 of 2004 2 investigation, the Sub Inspector laid charge before the Judicial First Class Magistrate Court, Devikulam. 2. To prove the rash and negligent driving of the revision petitioner, prosecution examined PW1 to PW13 and marked Exts.P1 to P9 as documentary evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning him under Sec.313 Cr.P.C. He examined DW1 and DW2 in support of his defence. The learned Magistrate convicted the accused and sentenced him to undergo simple imprisonment for nine months and fine of Rs.5,000/(Rupees five thousand only) in default to undergo simple imprisonment for four months under Sec.304(A) IPC. No separate sentence was imposed under Sec.279 IPC. Being aggrieved by that, he preferred Criminal Appeal No.156 of 2004 and the learned Additional Sessions Judge dismissed that appeal. Being aggrieved by that, the accused preferred this revision petition. 3. Heard both sides and examined the oral and documentary evidence in this case. I have also verified Crl. R.P. No.1184 of 2004 3 whether there is any misreading of evidence and both courts below properly considered the evidence and appreciated it in recording its reason for the finding properly. A conviction based on conjectures, which is not supported by evidence is illegal, even though the view based on conjectures may be probable to the real truth. The learned counsel appearing for the revision petitioner contended that many factors which ought to have been considered in favour of the accused were omitted. While exercising the revisional jurisdiction, re-appreciation of evidence is not possible. Apex Court in **Duli Chand v. Delhi Administration [AIR 1975 Supreme Court 1960** ] held as follows. “ The jurisdiction of the High Court in a criminal revision application is severely restricted and it cannot embark upon a re-appreciation of evidence.” 4. The question whether the accused was guilty of negligence in driving the bus and death of the deceased was caused due to negligent driving is a question of fact which depends for its determination on Crl. R.P. No.1184 of 2004 4 appreciation of the evidence. The bare act of rash and negligent driving or riding on a public way so as to endanger human life or likely to cause hurt or injury to other person itself is an offence. The principle behind this is that the driver of the vehicle while driving through a public road has to take due care and caution while proceeding through the road. Criminal rashness is a dangerous situation that the person doing the act has knowledge that his driving may cause injury, but without intention to cause that effect. The criminality lies in running the risk of doing such act in an indifferent and reckless manner which resulted in the consequences. Therefore, for attributing the rashness or negligence driving in this case, I have analysed the oral and documentary evidence in this case. The evidence of occurrence witnesses Pws.1, 2 and 3 show that the vehicle was driven in a rash and negligent manner by the driver of the vehicle. The oral evidence of PW1 shows that the incident occurred on 18.12.1997 at 2.45 p.m. on the NH road in front of the Parvathy Amman Kovil. The Crl. R.P. No.1184 of 2004 5 vehicle KBF-743 was driven in a rash and negligent manner and it hit on the deceased. Immediately the deceased was removed to the hospital, but on the way to hospital he succumbed to the injuries. He also stopped the lorry by giving hand signal. PW2 and PW3 also supported the oral evidence of PW1. They also identified the accused/revision petitioner. Even though, these witnesses were cross examined, nothing has been brought out in evidence to discredit their direct oral evidence. This direct oral testimony of PW1 to PW3 is believable. The rashness and negligence are deposed by PW1 who was standing near the place of occurrence and the identity of the accused is also clear from his evidence. 5. What is seen from the evidence of PW1 to PW3 is that they saw the vehicle proceeding through the road without due care and caution. The learned counsel appearing for the accused contended that these witnesses had not witnessed the incident and they were looking at different directions. Even though such a contention was raised, no questions were asked in the trial court to Crl. R.P. No.1184 of 2004 6 convince this court that they were looking at different directions. What can be inferred from the oral evidence of PW1 to PW3 and Ext.P6 is that the tarred portion has a width of 4 metres 45 cms. and the road lies at the place of occurrence in north south direction. The place of occurrence is noticed as 80 cms east from the western tar end and blood stains were found there. On the western side of the road, there was a small water collection. The western road margin had a width of 154 cms. Towards south, 300 metre and towards north 30 metres straight. Therefore it is presumed that the injured might have proceeded through the side of the tarred portion. Apex Court in **Mrs. Shakila Khader v. N.L.Untwalia [AIR 1975 Supreme Court 1324 ] held as follows.** “ The main criterion for deciding whether the driving which lead to the accident was rash and negligent is not only the speed at which the car was running but the width of the road, the density of the traffic and the attempt to overtake other vehicles resulting in the car going to the wrong side of the road and causing the accident. Even if Crl. R.P. No.1184 of 2004 7 the accident took place in the twinkling of an eye it is not difficult for an eye witness to notice a car overtaking other vehicles and going to the wrong side of the road.” 6. After assessment of the evidence, there was a concurrent finding of fact that the death of the deceased was caused by negligent driving of bus by the accused. This court cannot re-appreciate the evidence, but this court can review the same in order to satisfy itself that there was evidence in support of the finding and that the finding was not perverse, came to the conclusion that the evidence established that the death of the deceased was caused by negligent driving of bus by the accused. PW9, Assistant Sub Inspector, Munnar Police station recorded Ext.P1 statement. On the basis of that, he registered Ext.P4, FIR. PW10 conducted autopsy of the deceased and issued Ext.P5 postmortem certificate. PW11 Head Constable arrested the accused. He was also interrogated. PW12 Sub Inspector prepared Ext.P2 inquest report. He arrived at the place of occurrence and Crl. R.P. No.1184 of 2004 8 prepared Ext.P6 mahazar. He also inspected the vehicle and prepared Ext.P3 vehicle mahazar. After identifying the name and address of the revision petitioner he filed Ext.P8 report. PW13 inspected the vehicle and issued Ext.P9 certificate in which, no mechanical defect was noticed. PW12 questioned the owner of the vehicle who was examined in the trial court as PW5. Ext.P2 inquest report was attested by PW6 and PW7. Ext.P3 vehicle mahazar was also attested by PW3. No illegality or irregularity found in the investigation conducted by PW12. ## 7. Apex Court in **Syad Akbar v. State of Karnataka [AIR 1979 Supreme Court 1848 ] held as follows:** “ As a rule, mere proof that an event has happened or an accident has occurred, the cause of which is unknown, is not evidence of negligence. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of Crl. R.P. No.1184 of 2004 9 somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. In such cases (a) the event or accident must be of a kind which does not happen in the ordinary course of things if those who have the management and control use due care and (b) it has to be further satisfied that the event which caused the accident was within the defendant's control. The reason for this second requirement is that where the defendant has control of the thing which caused the injury, he is in a better position than the plaintiff to explain how the accident occurred. Thus, for the application of the maxim res ipsa loquitur no less important a requirement is that the res must not only bespeak negligence, but pin it on the defendant. Case law discussed. (Paras 19, 20)” I have gone through the oral and documentary evidence in this case. Both courts rightly appreciated the evidence and convicted the accused. Orissa High Court in **[1994 Crl.L.J 389] Badri Prasad Tiwari v. State** held Crl. R.P. No.1184 of 2004 10 that rash and negligent act under Sec.279 IPC relates to driving or riding on a public way endangering human life while offence under Sec.304(A) extends to any rash and negligent act, falling short of the culpable homicide. Therefore, the conviction under Sec.279 and 304A IPC is confirmed. 8. Having regard to the facts and circumstances of the case and the manner in which the incident took place, I think that the sentence can be modified in view of the decision reported in **Chandramohan Nair v. State of Kerala [1994 Supreme Court Cases (Cri.) 1750].** The learned counsel appearing for the revision petitioner submitted that the incident occurred 18 years back and he prays for leniency. In the circumstances, the sentence imposed by the court below under Secs.279 and 304A IPC is modified as follows: The revision Petitioner is sentenced to rigorous imprisonment for three months and fine of Rs.5,000/- Crl. R.P. No.1184 of 2004 11 (Rupees five thousand only) under Sec.304(A) IPC in default of fine, simple imprisonment for another three months. Since trial court did not impose any sentence under Sec.279 IPC that finding does not warrant any interference. Revision petitioner is directed to surrender in the trial court to undergo the modified sentence, failing which, the learned Judicial First Class Magistrate shall issue non bailable warrant forthwith. Sd/- **P.D. RAJAN, JUDGE** / True Copy / NS/23/05/2016 P.A. To Judge