Mani s/o Avinasi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 27TH DAY OF MAY 2016/6TH JYAISHTA, 1938** **Crl.Rev.Pet.No. 499 of 2005 (B)** **--------------------------------** **AGAINST THE JUDGMENT IN CRL.APPEAL NO.38/1999 of ADDITIONAL SESSIONS JUDGE FAST TRACK COURT NO.1, PALAKKAD DATED 20-01-2005** **AGAINST THE JUDGMENT IN CC 479/1995 of JUDICIAL MAGISTRATE OF FIRST CLASS,ALATHUR DATED 05-02-1999** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **---------------------------------------MANI S/O. AVINASI, SREERANGARAYANCODE, VALLIPALAYAM ROAD, METTUPALAYAM,COIMBATORE DISTRICT, TAMIL NADU.** **BY ADVS.SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P** **RESPONDENT(S)/RESPONDENT/COMPLAINANT:** **-------------------------------------** **STATE OF KERALA, REP.BY THE CIRCLE** **INSPECTOR OF POLICE, VADAKKENCHERRY, PALAKKAD, 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 27-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.499 of 2005 ---------------------------------------------Dated this the 27[th] day of May, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.38/1999 of Additional Sessions Judge, Fast Track Court-I, Palakkad. He was charge sheeted in C.C.No.479/1995 by the Judicial First Class Magistrate Court, Alathur u/s.279, 338 and 304A IPC. The charge is that on 12.6.1995 at 12 'o' clock in the night, the accused had driven a lorry bearing Registration No.TN 27E 1129 through the National Highway from Thrissur to Palakkad in a rash and negligent manner and hit on the back side of a stationary lorry bearing Registration No.KED 1629,which was parked on the side of the road at Crl.R.P. No.499/2005 2 Panthalampadam in Kannambra amsom, as a result, the stationary lorry moved forward and run over the cleaner who was changing the front tyre of the said lorry and he succumbed to the injuries thereby committed the offence. On the basis of information, Vadakkanchery Police registered a case and after completing investigation, Circle Inspector of Police, Vadakkanchery laid charge before Judicial First Class Magistrate Court, Alathur. 2. During trial, prosecution examined PW1 to PW8 and marked Exts.P1 to P7. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned Magistrate convicted the accused and sentenced to simple imprisonment for 6 months under u/s.338 and 304A IPC. Against that the accused preferred Crl.Appeal No.38/1999 before Additional Crl.R.P. No.499/2005 3 Sessions Judge, Fast Track Court No.I, Palakkad, where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, he preferred this revision petition. 3. Revisional jurisdiction is a supervisory power to correct illegality or irregularity or miscarriage of justice arising from misconception of Law which has resulted in hardship or any injury to any person. Normally the Court exercise this jurisdiction in exceptional cases when it feels that substantial injustice has been done by a Subordinate Court. If miscarriage of justice has been done by violating the fundamental rules of appreciation of evidence, High Court is justified in revising the decision of its lower courts. If a particular point is decided misconstruing the evidence on record or in the absence of evidence it is necessary for the High Court to exercise its revisional power. It is pertinent to note that the possibility of another view on a point is not a ground for interpreting with the above power 4 Crl.R.P. No.499/2005 4. Heard both sides. **The specific case of the prosecution is that the accused had driven a lorry on the public way in rash and negligent manner so as to endanger human life, which caused hurt to one George and as a result, he succumbed to the injuries.** In a revision, it is not possible to re-appreciate the evidence unless there is glaring features brought to the notice of the court showing miscarriage of justice. Therefore, the main question that arises for consideration is whether the deceased sustained any injury in a motor accident and he died due to the injury sustained in the accident. Prosecution examined the lorry cleaner to prove the occurrence. The evidence of PW1 shows that on the date of incident at 12 'o' clock in the night he was travelling in the lorry driven by the accused from Cherthala to Mettupalayam. He was sleeping in the lorry and when he Crl.R.P. No.499/2005 5 reached at Panthalampadam, the lorry hit on the back side of a stationary lorry. As a result, he sustained serious injury and became unconscious and another person died in the accident. But, he did not know the reason for the accident. 6. The medical evidence is supporting the evidence of PW1 and PW4. Ext.P7 is the postmortem certificate issued by PW7. PW5 examined the injured Suresh and issued Ext.P4 wound certificate. A perusal of the wound certificate shows that PW1 sustained compound fracture in the accident. The postmortem certificate shows that the death was due to the injury sustained in the accident. 7. On the basis of Ext.P4 statement, PW6 registered a crime, Ext.P4(a) is the FIR. PW2 attested Ext.P1 inquest report and identified his signature in the inquest report. Ext.P5 is the same mahazar. PW3 is the Crl.R.P. No.499/2005 6 Motor Vehicle Inspector of Alathur, issued Exts.P2 and P3 inspection reports, in which no mechanical defects were noted. 5. PW4 is the driver of the lorry KED 1629, deposed that the deceased George was his cleaner and he died at the place of occurrence. On 12.6.1995 when he reached at Panthalampadam, the tyre of the lorry was punctured and the deceased George was replacing the punctured tyre. He was standing near the lorry, at that time the offending lorry which came from behind hit on the rear side of his lorry, as a result, his lorry moved forward, run over the cleaner and fell into a ditch. George died on the spot. He gave Ext.P4 F.I. Statement to the Police. This witness stated that he did not know the cause of the accident and he failed to identify the driver of the lorry. Crl.R.P. No.499/2005 7 8. A perusal of the oral evidence of PW1 and PW4 shows the rash and negligent driving of the accused. A criminal negligence is the gross and culpable neglect or a failure to exercise that reasonable and proper care against causing injury either to the public generally or to an individual in a particular manner. Apex Court in **Balwant Singh** v. **State of Punjab and another** [1994 Supp (2) SCC 67] held that the section applies only to such acts which are rash or negligent and are directly the cause of death of another person. Apex Court in **S.N. Hussain** v. **State of Andhra Pradesh** [(1972) 3 SCC 18] held that 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. 9. Analysing the facts and circumstances in this case, I am of the view that the conviction u/s.279, 338, Crl.R.P. No.499/2005 8 304A is only to be confirmed. The incident was happened 20 years back. Revision petitioner was 42 years at the time of incident. Considering the nature of offence and the circumstances under which it was committed, the sentence imposed by the trial Court is modified as follows: (Relied decision in **Chandramohanan Nair** v. **State of Kerala** [2004 SCC (Cri) 1750]) The revision petitioner is sentenced to imprisonment for one month and fine of 1,000/- u/s.279 IPC, fine of₹ ₹1000/- u/s.338 IPC, imprisonment for three months and fine of 5,000/- u/s.304A IPC, in default of payment of₹ fine, imprisonment for one month each. The sentence shall run concurrently. Crl.R.P. is partly allowed. ## **P.D. RAJAN, JUDGE.** acd