Krishna Pillai v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **WEDNESDAY, THE 1ST DAY OF JUNE 2016/11TH JYAISHTA, 1938** **CRL.REV.PET.NO. 3039 OF 2003 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRIMINAL APPEAL NO.46/1995 OF II ADDITIONAL SESSIONS JUDGE, THIRUVANANTHAPURAM DATED 16-07-2003** **AGAINST THE JUDGMENT IN C.C.NO.283/1990 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-V, THIRUVANANTHAPURAM (SPECIAL COURT FOR MARK LIST CASES) DATED 21-01-1994.** **------------------------------------------** **REVISION PETITIONER(S)/APPELLANT/ACCUSED : ----------------------------------------** **KRISHNA PILLAI, SON OF NARAYANA PILLAI, LEKSHMI BHAVAN, NEAR TO KSRTC BUS STAND, ATTINGAL, AVANAVANCHERRY VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANNATHAPURAM.** **BY ADV. SRI.R.BINDU (SASTHAMANGALAM)** **RESPONDENT(S)/RESPONDENT/COMPLAINANT : ------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. V.P.SATHI** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. R.P. No.3039 of 2003 --------------------------------Dated this the 1[st] day of June, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.46 of 1995 of the Additional Sessions Judge-II, Thiruvananthapuram for offences punishable under Secs.279, 337 and 304(A) of the Indian Penal Code (hereinafter referred to as IPC for short). He was charge sheeted in C.C. No.283 of 1990 before the Judicial First Class Magistrate Court, Thiruvananthapuram under Secs.279, 337 and 304(A) IPC and under Sec.89(a) read with Sec.118(A) of the Motor Vehicles Act. The learned Magistrate convicted him under Sec.279, 337 and 304(A) IPC and sentenced him to undergo rigorous imprisonment for six months under Sec.279 IPC, simple imprisonment for three months and fine of Rs.500/(Rupees five hundred only) in default, simple imprisonment for thirty days under Sec.337 IPC and rigorous imprisonment for six months and fine of Crl. R.P. No.3039 of 2003 2 Rs.1000/- (Rupees thousand only) in default of payment of fine, simple imprisonment for three months under Sec.304(A) IPC. He was acquitted under Sec.89(a) read with Sec.118(A) of the Motor Vehicles Act. Against that, he preferred the above Criminal Appeal, where the learned Sessions Judge modified the sentence. Being aggrieved by that, he preferred this revision petition. 2. The charge against the revision petitioner is that on 15.06.1988 at 7.30 p.m, the accused had driven KSRTC bus KLX-4192 from Pottakuzhy junction to Murinjapalam from east to west in a rash and negligent manner endangering human life. When it reached west of Pottakuzhy junction, the front portion of the bus hit on a bicycle. As a result, Suvarnakumar who was walking by holding the carrier of a bicycle fell down and the rear wheel of the bus run over his head and thereby he succumbed to the injuries at the spot itself. City traffic Police registered a crime and after completing investigation, the Circle Inspector, City Traffic laid final report before the Judicial First Class Magistrate Court, Crl. R.P. No.3039 of 2003 3 Thiruvananthapuram. During trial, prosecution examined PW1 to PW16 and marked Exts.P1 to P13 as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He examined DW1 and DW2. 3. Learned counsel contended that there is no evidence to show that the front portion of the bus hit on the bicycle to prove the rash and negligent driving of the revision petitioner. On the other hand, the steel vessel carried by the deceased hit on the left back portion of the bus just above the rear wheel, which resulted in the accident. The possibility of negligence from the side of the pedestrian carrying with a steel vessel is clear from the evidence. When rash and negligent act of the revision petitioner is not proved, the accused is entitled to get the benefit of doubt. 4. The rash and negligent driving on a public way has been deposed by PW3, the occurrence witnesses, in this case. His evidence shows that on 15.06.1988 at 7.30 p.m, he was riding a bicycle towards Murinjapalam Crl. R.P. No.3039 of 2003 4 side, and reached at Pottakuzhy junction, the deceased also accompanied him by walking with him. When both of them were proceeding, the revision petitioner came there by driving KLX-4192 in a rash and negligent manner and hit on the back side of his bicycle. As a result, both of them fell down and the front left side wheel of the bus run over the body of Suvarnakumar, who died at the spot itself. PW3 became unconscious. Though this witness was cross examined by the defence counsel, nothing has been brought out in evidence to discredit his evidence. Therefore, the evidence of the injured is believable to prove the rash and negligent act of the revision petitioner. PW4, PW5 and PW6 who are the independent witnesses also supported the case. Analysing the oral testimony of these witnesses, it is true that the accident occurred due to the rash and negligent driving of the revision petitioner. 5. The defence contention was that the accident was due to the negligence on the part of the deceased, but no evidence had been adduced by him to corroborate Crl. R.P. No.3039 of 2003 5 that defence contention. DW1 and DW2 were examined to prove the defence contention. Their evidence itself is not sufficient to prove the negligence on the part of the deceased. Therefore, I discard that defence contention advanced by the learned counsel. 6. The medical evidence is corroborating the prosecution story. The body was entrusted to postmortem examination and PW10 conducted postmortem examination and issued Ext.P4 certificate. PW11 examined PW3 and issued Ext.P5 wound certificate. A perusal of Ext.P4 shows that the death was due to the injury sustained in the accident. The wound certificate shows that PW3 sustained injuries in the accident. On the basis of Ext.P1 statement, PW15 registered the crime. Ext.P9 is the First Information Report. PW7 attested Ext.P1 scene mahazar. PW8 attested Ext.P2 mahazar. PW9 issued Ext.P3 kychit. PW16 conducted investigation in this case and prepared Ext.P10 inquest report. He also prepared Exts.P11, P12 and P13. There is no dispute with regard to the identity of the driver. PW12 identified the Crl. R.P. No.3039 of 2003 6 conductor. PW13 inspected the vehicle and issued Ext.P6 certificate. The Inspector, KSRTC who was examined as PW14 issued Ext.P7 certificate which shows that the revision petitioner was the driver at the time of accident. Therefore, it is presumed that the deceased Suvarnakumar sustained injuries in the accident and died due to the injuries sustained in the accident and the rash and negligent driving of the revision petitioner was the cause of the accident. 7. Apex Court in **Balachandra Waman Pathe** **v. State of Maharashtra [1968 ACJ 38]** discussed the distinction between rashness and negligence which reads as follows: S.304-A- Rashness and negligence-Distinction between- There is a distinction between a rash act and negligent act. In the case of a rash act the criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequence. Criminal negligence 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 arises, it was the imperative duty of the accused person to have Crl. R.P. No.3039 of 2003 7 adopted. Negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. A culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The immutability arising from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and if he had he would have had the consciousness. The immutability arises from the neglect of the civic duty of circumspection.” ## 8. In another decision **State of Karnataka v.** ## **Satish [1998 KHC 1353]** in which the Apex Court held that: “ Merely because the truck was being driven at a “high speed” does not bespeak of either “negligence” or “rashness” by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by “high speed” is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by “high speed” in the Crl. R.P. No.3039 of 2003 8 facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of “rashness” or “negligence” could be drawn by invoking the maxim “ res ipsa loquitur”. There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case. ” There is evidence on record to prove the rashness or negligence on the part of the revision petitioner. From the evidence of PW3 to PW6, it is clear that there was negligence or rashness on the part of the driver while Crl. R.P. No.3039 of 2003 9 driving KSRTC bus. The rashness from the side of the revision petitioner is proved in this case. The trial court and the appellate court properly analysed the evidence and convicted the accused. This is not a perversed view. I find no illegality in the above finding. There is no merit in this revision petition and is dismissed accordingly. NS/03.06.2016 Sd/- **P.D. RAJAN, JUDGE** / True Copy / P.A. To Judge