Kunjappan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 29TH DAY OF JULY 2016/7TH SRAVANA, 1938** **Crl.Rev.Pet.No. 2757 of 2005 ( )** **---------------------------------** **AGAINST THE JUDGMENT IN CRL.APPEAL NO.187/2003 of ADDITIONAL SESSIONS JUDGE, NORTH PARAVUR DATED 21-10-2004** **AGAINST THE JUDGMENT IN CC 88/1999 of JUDICIAL FIRST CLASS MAGISTRATECOURT-I, ALUVA DATED 27-01-2003** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **---------------------------------------KUNJAPPAN, AGED 65 YEARS, S/O.KANDAYAN, EZHARAPPARA VEEDU, KONGORPPILLY KARA, ALANGAD VILLAGE.** **BY ADVS.SRI.B.PREMOD SMT.RENI.T.A** **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 29-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P.No.2757 of 2005 ---------------------------------------------Dated this the 29[th] day of July, 2016 ## **ORDER** This revision petition has been preferred by the accused against the judgment in Crl.Appeal No.187/2003 of Additional Sessions Judge, N. Paravur. He was charge sheeted in C.C.No.88/1999 by the Judicial First Class Magistrate Court-I, Aluva for having committed the offence punishable u/s.280 and 304A IPC. The learned Magistrate convicted the accused u/s.280 and 304A IPC and sentenced to simple imprisonment for two years u/s.304A IPC and six months u/s.280 IPC. Against that, the accused preferred Crl.Appeal No.187/2003 before Additional Sessions Judge, North Paravur, where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision petition. 2 Crl.R.P.No.2757/2005 2. The charge against the accused is that on 2.5.1998 at 11.30 a.m., the accused transported 25 passengers in a country boat through Periyar river from Manakkadavu to Kottaramkadavu without any valid permit or registration. As a result of rash and negligent rowing of the revision petitioner, the boat sunk 50 metres away from the Manalkadvu temple, four passengers drowned and others fell into the river, thereby committed the above offences. During trial, prosecution examined PW1 to PW18 and marked Exts.P1 to P14. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. 3. When the matter came up for hearing, the learned counsel for the revision petitioner submitted that the revision petitioner died. In the circumstances, on 01.7.2016 this Court directed the Sub Inspector of Police, Aluva to produce the Death Certificate of the revision petitioner. Accordingly, he Crl.R.P.No.2757/2005 3 produced the Death Certificate issued by the Registrar of Birth and Death, Alangad Grama Panchayat, which is marked as Ext.C1. As per Ext.C1, the revision petitioner died on 3.7.2011. 4. Adv. B. Pramod agreed to assist this Court, hence, he is appointed as Amicus curiae in this case. The revisional jurisdiction of the High Court vested u/s.401 of the Code of Criminal Procedure do not create any right to the litigant, but only conserve the power of the High Court to see that the justice has been properly done by the subordinate criminal courts and whether, while exercising their power, committed any illegality or irregularity or any perversity in their decision. Apex Court in **Pranab Kumar Mitra** v. **State of W.B. and another** [ AIR 1959 SC 144] observed that where the High Court thinks it fit and proper to entertain an application in revision or calls for the record suo motu then notwithstanding the death of the convicted person it has the power to examine the whole question of the correctness, propriety or legality of Crl.R.P.No.2757/2005 4 the sentence in revision. Apex Court in **State of Kerala** v. **Narayani Amma Kamala Devi and others** [AIR 1962 SC 530] observed that revisional powers against the conviction can be exercised even after the death of the accused. The above dictum was followed in **Viswanathan** v. **State of Kerala** [2006 KHC 849] and **Rev. Bishop K.M. Chacko** v. **P.S. Jayaprakash and another** [2009 (3) KHC 67]. The position is that after filing a revision petition, if the accused person dies, the High Court can exercise its revisional power to examine the question of correctness, propriety and legality of the sentence of fine, which necessarily involves examining the order of conviction itself. 5. While discharging this statutory function of supervisory jurisdiction, I think it proper to examine the evidence in this case. PW1 did not support the prosecution case and he was declared as hostile. But, PW2 identified the accused and deposed that on the date of incident at about Crl.R.P.No.2757/2005 5 11.30 a.m., the accused navigated the boat carrying passengers across the periyar river, when it reached near the other bank of the river, the boat sunk into the river and he saved six passengers drowned in the river. The revision petitioner had no licence to navigate passengers in his boat across the river. The country boat has the capacity of ten passengers, instead of that, the accused carried 14 passengers in the boat, which resulted in the accident. During cross examination, he deposed that the accident was due to the rash and negligent act of the revision petitioner alone. 6. The licensed boat man of PWD was examined as PW10, who supported the evidence of PW2. His evidence shows that when he was standing on the southern bank of the river, the boat reached at the middle of the river, it sunk into the river. The evidence of PW10 is an unimpeachable nature and no scope of any discrepancy to discard it. If evidence is relevant, the Court is not concerned with as to how evidence is Crl.R.P.No.2757/2005 6 obtained, but the Judge has the responsibility to admit it which was done by the trial Court. Analysing the evidence, it is found that the accused navigated the vessel in a manner so rash and negligent as to endanger human life which resulted in the accident. The doctors, who conducted postmortem examination were examined as PW3 and PW4. The evidence of PW3 shows that while he was working as Asst. Surgeon, Government Hospital, Aluva, he conducted postmortem of one Thajudheen and issued Ext.P1 certificate. He also conducted autopsy of one Nizar and issued Ext.P2 certificate. PW4 examined one Rahiman and issued Ext.P3 certificate. He also conducted autopsy of one Rafeek and issued Ext.P4 certificate. PW15 conducted postmortem of Siraj and issued Ext.P9 certificate. The above medical evidence is corroborating the prosecution case. 7. Apex Court in **S.N. Hussain** v. **State of Andhra Pradesh** [1972 (3) SCC 18] held as follows: Crl.R.P.No.2757/2005 7 “(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 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.” Crl.R.P.No.2757/2005 8 8. From a reading of the evidence, it is clear that the death was due to the direct result of the rash or negligent act of the revision petitioner. The act was effected without intervention of the others' negligence. There was evidence with regard to conveying persons by water for hire in an overloaded vessel. But no finding was recorded by the learned Magistrate for that offence. The Section says that whoever knowingly or negligently conveys or causes to be conveyed for hire any person by water in any vessel, when that vessel is in such a state or so loaded as to endanger the life of that person shall be punished for an offence u/s.282 IPC. The evidence of PW2 shows that the boat has the capacity of 10 passengers but it was overloaded by more passengers, . Analysing the evidence, it is clear that the prosecution proved the case beyond reasonable doubt and Crl.R.P.No.2757/2005 9 the trial Court appreciated the evidence and convicted the accused. I do not find any illegality in the finding. There is no merit in this revision petition and it is dismissed accordingly. **P.D. RAJAN, JUDGE.** acd