K.P. Narayanan Kutty v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 4[TH] DAY OF JANUARY 2022 / 14TH POUSHA, 1943** ## **CRL.MC NO. 4450 OF 2021** **CC 178/2021 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PALA CRIME NO. 2793/2019 OF PALA POLICE STATION, KOTTAYAM** ## **PETITIONER/4TH ACCUSED:** **K.P.NARAYANAN KUTTY AGED 58 YEARS S/O.NARAYANAN NAIR, KADAMBARI HOUSE, BAKKALAM P.O., MORAZHA VILLAGE, KANNUR DISTRICT** **BY ADVS.I.V.PRAMOD K.C.RENJITH KUMAR K.V.SASIDHARAN** ## **RESPONDENT/DEFACTO COMPLAINANT/STATE:** **STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM KOCHI 682 031** ## **BY SMT. PUSHPALATHA M.K., SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23.11.2021, THE COURT ON 04.01.2022 PASSED THE FOLLOWING:** Crl.M.C.No.4450 OF 2021 2 ## **ORDER** Petitioner is the fourth accused in C.C. No. 178/2021 on the file of the Judicial First Class Magistrate’s Court, Pala, where he, along with other persons, faces allegations under Section 304A of the Indian Penal Code. The incident that led to the registration of Crime No. 2793/2019 of Pala police station had happened on 04.10.2019 at the Pala Municipal Stadium. That day the 63[rd] Kerala State Junior Athletics Meet which was scheduled on 4[th] , 5[th] and 6[th] of October, 2019 under the auspices of the Athletic Association of Kottayam district and also under the State Athletic Association was in progress. The events had started at 6.00 A.M. and deceased 17 year old Afeel Johnson, a plus one student was one of the volunteers. He was also an athlete. At the relevant time, hammer throw and javelin throw items were in progress. Afeel Johnson was volunteer for the javelin throw event. When a throw hits the ground, the official concerned will take measurements and the volunteer is expected to assist the official in taking the measurement and to Crl.M.C.No.4450 OF 2021 3 take back the javelin to the throwing point. At 11.30 A.M., both hammer throw and javelin throw items were being conducted on the south-eastern corner of the stadium which is in north-south orientation. It appears that the hammer throw event was conducted at the south-eastern corner and on the immediate west of it, javelin throw event was also being conducted. There were overlapping areas in the sectors. The hammer throw in respect of under 18 girls was in progress whereas javelin throw of under 18 boys was being conducted on the immediate western sector. 2. The prosecution allegation is as follow:- Hammer throw event had started at 11.30 A.M., whereas javelin throw of under 18 boys category was continuing. At about 12 o’clock, when CW19 threw the hammer, it hit the said Afeel Johnson, who was deployed on the other end as a volunteer in the javelin throw sector. The hammer hit on his head and he was badly injured and was immediately rushed to the Government Hospital, Pala and then to the Medical College Hospital, Kottayam. Even though he was treated in the ICU by Crl.M.C.No.4450 OF 2021 4 conducting surgery etc., he breathed his last on 21.10.2019 at 4.10 P.M. The crime was registered on the First Information Statement given by CW1, Johnson, the father of the boy and on conclusion of investigation, charge sheet was laid and the petitioner is the fourth accused. 3. First accused was the referee of throw events, the second accused was the sector official of hammer throw, the third accused was the chief judge of hammer throw and the fourth accused is the petitioner, who was the chief judge of javelin throw. It is alleged that the incident had happened due to the rashness and negligence on the part of accused Nos. 1 to 4. Thus, they have been charged alleging offence under Section 304A of the IPC. 4. The petitioner has approached this Court under Section 482 of the Code of Criminal Procedure for quashing Annexure A1 final report in Crime No. 2793/2019 of Pala police station which is pending as C.C. No. 178/2021. According to the petitioner, he is totally innocent. He has been unnecessarily and falsely implicated. The deceased was hit by a Crl.M.C.No.4450 OF 2021 5 hammer for which petitioner was not having any liability as he was not having any control over hammer throw events. The girl who threw the hammer is not made an accused. At the most, it can be said that, without clearing the throwing yard(sector), the second accused gave positive signal and the girl threw the hammer, for which no criminal liability can be attributed against the petitioner. He is staying around 400 kms away from Pala. He is a retired Physical Education Teacher; functioned as official in several District, State and National level athletics meets for the last several years. He used to control athletic meets and other sports and games events. On the fateful day, he was engaged as the referee of javelin throw item alone. The position occupied by him was near to the throwing point, which means he was sitting on the end of the line for watching that, while throwing, the line is not crossed by the athlete. He was not having any control over the throwing events conducted by the second accused. On several stadiums, grounds for both throwing items were arranged in the adjacent fields. Deceased was a volunteer, among others, to Crl.M.C.No.4450 OF 2021 6 collect javelin and bring it to the side line. It could be gathered that deceased had no need of going to the sector of the hammer throw. Even otherwise, it can be said that the official of hammer throw should not have given signal to the person to throw the hammer without clearing the field. Anyway, the petitioner has no criminal liability and there is no justification in prosecuting him, so that, entire proceedings are sought to be quashed. 5. I heard the learned counsel for the petitioner and also the learned Senior Public Prosecutor. The learned counsel for the petitioner has reiterated the contentions taken in the statement of facts and also in the grounds. 6. I have carefully gone through the materials made available by the petitioner. The copy of the final report along with statements of witnesses recorded under Section 161 of the Cr.P.C. were produced by the petitioner. It is the admitted position that the petitioner was the chief judge of javelin throw items held on 04[th] - 06[th] October, 2019 in the Municipal Stadium, Pala. It is also the common case that hammer throw Crl.M.C.No.4450 OF 2021 7 and javelin throw items were in progress simultaneously in adjacent sectors. There were common overlapping areas between the two sectors. Deceased Afeel Johnson was a volunteer attached to the javelin throw items and his job was to assist the officials in taking measurements once javelin throw is completed and to take back the javelin to the throwing point. At that time, hammer throw event was also in progress, the hammer thrown by CW19 happened to hit on his head which caused fatal injuries and ultimately, the boy succumbed to the injury. 7. It is very necessary that when offence under Section 304A of the IPC is alleged, firstly, death of a person was caused. Here there is no dispute that Afeel Johnson had died due to the seriousness of the injuries caused to him by the hit of the hammer thrown on 04.10.2019. Secondly, such death was caused due to any rash or negligent act and that thirdly, such act does not amount to culpable homicide. Here the first and third conditions are not in dispute, it was not amounting to culpable homicide and the boy was hit by the hammer thrown Crl.M.C.No.4450 OF 2021 8 by CW19 while participating in the event. It hit on his head and he sustained very grievous injuries and fell unconscious and thereafter, he never regained consciousness. He was immediately rushed to the Government Hospital, Pala and then to the Medical College. He was treated till his death on 21.10.2019. 8. It is also necessary that in order to attract offence under Section 304A of the IPC, death must be the direct result of rash or negligent act of the accused and the act must be efficient cause without the intervention of another negligence. It must be the _causa causans;_ it is not enough that it may have been the _causa sine qua non_ . Thus, where death is not the direct result of rash or negligent act on the part of the accused and was not proximate and sufficient cause without the intervention of another's negligence, the accused must be acquitted of the charge under Section 304A of the IPC. (See the decisions reported in **Kurban Hussein Mohammedalli Rangawalla v. State of Maharashtra [AIR 1965 SC 1616], Suleman Rahiman Mulani and another v. State of** Crl.M.C.No.4450 OF 2021 9 **Maharashtra [AIR 1968 SC 829]** and **Ambalal D. Bhatt v. The State of Gujarat [AIR 1972 SC 1150]** etc. 9. In this case, the oft quoted decision of the Bombay High court reported in **Emperor v. Omkar Rampratap and another** also is very apposite. The Bombay High Court held thus:- “To impose criminal liability under Section 304A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non.” 10. Now the vital question is whether there was any direct role for the petitioner, the 4[th] accused in the death of Afeel Johnson. As indicated earlier, two sectors of hammer throw and javelin throw were adjacent and the events were in progress simultaneously. There were overlapping areas in the sectors. Hammer throw event was in progress on the southeastern corner of the stadium whereas javelin throw was held on the immediate west of that sector and in between there were Crl.M.C.No.4450 OF 2021 10 overlapping areas. The petitioner was at the throwing end whereas the deceased boy was standing at the other end of the sector, watching fall of javelins, taking measurements and also for taking back javelin to the throwing point. At that time, the hammer thrown by CW19 hit on his head and he fell on the spot and later succumbed to the injuries. 11. The incident had happened in overlapping area of the sectors. On going through the statement of witnesses, it is evident that some of the witnesses have attributed two reasons for the death of the boy; i) overlapping of sectors. According to them, two hazardous events were conducted simultaneously in adjacent sectors and, ii) officers of hammer throw sector gave signal negligently and the throw was cleared without ascertaining whether the ground was clear. 12. It is the settled proposition of law that even if the entire allegations are accepted, if there is no material to proceed against accused person, invoking the extraordinary Crl.M.C.No.4450 OF 2021 11 jurisdiction of this Court under Section 482 of the Cr.P.C, the case against him can be quashed. After going through the materials, I have numerous reasons to find that the proceedings against the petitioner cannot be justified and he is entitled to be exonerated at the threshold. 13. Firstly, he was the chief judge of javelin throw events. He had absolutely no role in the selection of location of the sectors or scheduling of timing of the events conducted. He was in charge of javelin throw alone and had no role over the event relating hammer throw. It is true that numerous witnesses have spoken that the mishap had occurred due to the negligence of the officials. The parents of the deceased also spoke to that effect. But the parents have not named anyone. They have only stated generally that there was negligence on the part of the organisers of the meet. 14. It is admitted that the petitioner was an official in the meet. At the same time, he cannot be held liable as he was not an organiser of the meet. In this connection, the oral testimony of CW25 Babu, Secretary of the Kerala State Crl.M.C.No.4450 OF 2021 12 Athletic Association is an eye opener. In his second statement dated 20.11.2020, it is indicated that the petitioner's name was not in the original list of officials prepared for the conduct of the meet. At the last minute, some of the judges whose names were included in the schedule absented from attending the meet and thus the technical committee decided to induct him as an official and thus he was made chief judge of javelin throw items of under 18 boys. I highlighted this for two reasons. Firstly, he was not an organiser of the meet and had no role in the identification of the sectors or deciding timing of the conduct of various events. his name was Secondly, incorporated only at the final phase, when some of the officials did not turn up and that was how he became the chief judge of javelin throw event. 15. Moreover, even though various witnesses have stated that the organisers went wrong in conducting such hazardous events simultaneously in adjacent fields, CW20, who is a celebrated athletic coach, Dronacharya K.P.Thomas has stated that there is no such rule that hammer and javelin Crl.M.C.No.4450 OF 2021 13 throws shall not be conducted simultaneously. According to him, hammer throw and javelin throw of boys are not conducted in adjacent sectors. Normally girls will not throw hammer beyond 40 metres. According to him, there is nothing wrong in conducting such events simultaneously. But in this case, CW19 who had thrown the fateful hammer beyond 45 metres, which was unprecedented. No doubt, both these events are hazardous. Common sense requires that it should not be conducted simultaneously, in adjacent fields. The organisers of the meet should have guarded against such mishaps which would have saved the life of a boy who lost his life at the tender age of 17. Whatever it may be, what I want to highlight is that the petitioner had absolutely no role in the selection of the events, timing of events, fixing of location of the sectors/fields and he had come to the picture only at the last minute, only as an official inducted by the State Athletic Association, when some of the officials included in the original schedule did not turn up. 16. That means, no rashness or negligence can be Crl.M.C.No.4450 OF 2021 14 attributed against the petitioner. He was the official remaining at the starting point of javelin throw event. The fateful hit was due to a hammer throw and the second or third accused was in charge of that event. It appears from the statement of witnesses that the officials at the hammer throw sector had permitted the athlete to make the throw without getting the field cleared. There is also a version that the boy had negligently gone to the area. Whatever it may be, we are concerned only about the culpability of the petitioner. 17. It is also important to note that offence under Section 304A of the IPC alone is alleged against the accused persons, four in number. There is no allegation that they had acted in furtherance of a common intention. In other words, Section 34 of the IPC is not attributed. That means the petitioner who had been the chief judge of the javelin throw sector did not do anything in furtherance of the common intention and on that count also, he cannot be proceeded against. 18. In my opinion, even if the entire materials are taken Crl.M.C.No.4450 OF 2021 15 on its face value, there is no justification for charging the petitioner and he has been unnecessarily implicated in the case and it is clearly an abuse of the process of court. Therefore, there is justification in quashing the proceedings against the petitioner. Proceedings in C.C. No.178/2021 pending before the Judicial First Class Magistrate's Court, Pala as regards the petitioner are quashed and the petitioner shall stand exonerated. Crl. M.C. is allowed as above. **SD/-** **K.HARIPAL JUDGE** **DCS/Okb/01.01.2022** Crl.M.C.No.4450 OF 2021 16 ## **APPENDIX** ## **PETITIONER'S ANNEXURES** |**ANNEXURE A1**|**CERTIFIED COPY OF THE FINAL REPORT IN CC**| |---|---| ||**NO.178/2021 OF JUDICIAL FIRST CLASS**| ||**MAGISTRATE COURT, PALA IN CRIME**| ||**NO.2793/2019 DATED 4.10.2019 OF**| ||**PALA POLICE STATION,**| ||**KOTTAYAM DISTRICT.**| |**ANNEXURE A2**|**TRUE COPY OF THE FIR WITH FIS IN CRIME NO.**| ||**2793/2019 DATED 04.10.2019 OF PALA POLICE**| ||**STATION IN ERNAKULAM DISTRICT**| |**ANNEXURE A3**|**STATEMENT OF OTHER WITNESSES RECORDED UNDER**| ||**SECTION 161 OF CR.P.C.**|