Mathew v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 26TH DAY OF JULY 2016/4TH SRAVANA, 1938** **CRL.REV.PET.NO. 3693 OF 2006 (B) ---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.133/2004 OF SESSIONS COURT, KOZHIKODE DATED 14-03-2006** **AGAINST THE JUDGMENT IN CC NO.359/2000 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PERAMBRA DATED 30-01-2004** **-------------------------** **REVISION PETITIONER(S)/APPELLANTS/ACCUSED: -----------------------------------------** **MATHEW, S/O.LUKA, PONNAMPARAYIL HOUSE, KAYANNA AMSOM ATHIYODI DESOM, KOZHIKODE DT.** **BY ADV. SRI.P.NARAYANAN** **RESPONDENT(S)/COMPLAINANT: --------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SMT. V.P. SATHI** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. Rev.Pet. No.3693 of 2006 ---------------------------------Dated this the 26[th] day of July, 2016** ## **O R D E R** This revision petition is preferred by the accused against the concurrent judgment in Criminal Appeal No.133 of 2004 of the 3[rd] Additional Sessions Judge, Kozhikode. He was charge sheeted by the Judicial First Class Magistrate-II, Perambra in C.C. No.359 of 2000 under Secs.279, 337 and 304(A) of the Indian Penal Code ( 'IPC' for short). The learned Magistrate convicted the accused and sentenced him to simple imprisonment for three months each under Secs.279 and 337 IPC and simple imprisonment for six months under Sec.304(A) IPC. Against that, the accused preferred the above Criminal Appeal before the 3[rd] Additional Sessions Judge, Kozhikode where the learned 3[rd] Additional Sessions Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision petition. 2. The charge against the accused is that on 27.09.1998 at 4.00 p.m., the accused had driven a bus Crl. Rev.Pet. No.3693 of 2006 2 KL-11/E-3087 in a rash and negligent manner through Balussery- Thamarassery public road. When the bus reached near the road to Rajagiri, it hit on the backside of a jeep KL-11/D-1530 which was proceeding in front of the bus. Due to the impact, the jeep went out of the road and capsized and the passengers sustained serious injuries. Balussery Police registered a crime and after completing investigation, SHO Balussery laid charge in the trial court. During trial, prosecution examined PW1 to PW15 and marked Exts.P1 to P14 as documentary evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. 3. The main argument advanced by the learned counsel appearing for the revision petitioner is that the accident was due to the negligence of the driver of the jeep. The bus was stopped at the place of occurrence. The jeep came from behind in a rash and negligent manner and without any notice, turned to a byroad without noticing the moving bus and the accident occurred. Crl. Rev.Pet. No.3693 of 2006 3 4. But the learned Public Prosecutor contended that the jeep was proceeding in front of the bus, when it tried to enter into a byroad going to Rajagiri, revision petitioner had driven the vehicle from behind in a rash and negligent manner and it hit on the jeep. 5. 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. Crl. Rev.Pet. No.3693 of 2006 4 6. Rashness consists of dangerous or wanton act with knowledge that it may cause injury if it is done. The criminality in such a case in running the risk of such act in a reckless or indifferent manner which resulted in the consequences. Criminal negligence on the other hand is a gross and culpable neglect or failure to exercise reasonable and proper care and precaution to guard against injury either to the public generally or to an individual particularly. For ascertaining the rashness or culpable negligence in exercising reasonable care, I have examined the oral evidence of the witnesses. The principle of rash and negligent driving in a case has been explained by the Apex Court in **Balachandra Waman Pathe V. State of Maharashtra [1968 A.C.J. 38]** in which the Apex Court held as follows: “ (i) the question as to what sentence should be imposed was essentially within the discretion of the trial Court and the High Court was not justified in interfering with the discretion unless it was satisfied that the sentence imposed by the trial court was unduly lenient or in other words grossly inadequate. (ii) the High Court seemed to have been influenced by ## Crl. Rev.Pet. No.3693 of 2006 5 the fact that a human life had been lost. If that was so, it had clearly lost sight of the fact that causing death was a necessary ingredient of an offence under section 304-A of the Code. Yet the legislature in its wisdom had left it to the discretion of the Court to punish an offence under that section either with imprisonment or with fine or both. From that it was clear that the legislature did not consider that for an offence under section 304-A of the Code, a term of imprisonment was a must. On the other hand, it did visualise the possibility of an offence falling under that provision being penalised by mere fine. The High Court should not have allowed itself to be prejudiced by the fact that a life had been lost. ” 7. The oral evidence of occurrence witness shows that the revision petitioner was driving the bus in a rash and negligent manner. PW1, who was a passenger in the jeep KL-11/D-1530, deposed that on 27.09.1998 at 4.00 p.m., he was proceeding to Rajagiri in the jeep with other family members, the revision petitioner driven the bus at a high speed and it hit on the backside of the jeep when the jeep was turning towards Rajagiri side. As a result, the vehicle capsized. His wife and mother thrown out of the vehicle and sustained serious injuries. Subsequently, his mother died. The accident was due to ## Crl. Rev.Pet. No.3693 of 2006 6 the negligence of the revision petitioner. PW1 was cross examined by the defence counsel. Nothing has been brought out to discredit his evidence. PW2 another injured who was travelling in the bus supported the rashness of the revision petitioner. He also deposed that the accident was due to the rash and negligent driving of the revision petitioner. PW3, the wife of PW1 also deposed that she saw the incident. The accident was due to the rash and negligent driving of the revision petitioner. The independent witnesses PW4 and PW5 did not support the prosecution case. A close scrutiny of the oral evidence, it is clear that they had witnessed the incident and competent to swear about the rashness or negligence of the revision petitioner but, PW4 and PW5 does not have any knowledge with regard to the rashness of the revision petitioner. 8. The medical evidence is corroborating the oral evidence of PW1 to PW3. PW10 examined the injured and issued Exts.P5 and P6 certificates. PW6 another doctor examined the injured and issued Ext.P7 certificate. ## Crl. Rev.Pet. No.3693 of 2006 7 PW12, Assistant Professor, Forensic, conducted postmortem and issued Ext.P8 certificate. The medical evidence shows that the death was due to the injures sustained to the head and chest. What is seen from the evidence of the doctors who treated the injured and the doctor who conducted postmortem is that the injuries were sustained in the accident which is corroborating the oral testimony of PW1 to PW3. 9. In this context, I have examined Ext.P2 scene mahazar. PW6 and PW7 attested Ext.P2. At the place of occurrence, the tarred portion has a width of 6.65 metres. The road lies 50 metres straight towards west and 75 metres towards east from the place of occurrence. The accident was occurred at the BalusseryThamarassery Public road. The accident occurred 150 cms south from the northern tar end. Therefore, it is clear that the road was straight at the place of occurrence and no obstructions were found seen to get a vicinity of the other vehicle. Accepting the oral and documentary evidence of PW1 to PW3 both courts found that the Crl. Rev.Pet. No.3693 of 2006 8 revision petitioner had driven the bus in a rash and negligent manner at the place of occurrence. It appears that the finding is based on evidence. Nothing has been brought out before me to discard the above finding. In my opinion, both courts appreciated the evidence in the right manner and followed the fundamental rules of appreciation of evidence. Therefore, the conviction and sentence passed by the courts below under Secs.279, 337 and 304A IPC is only to be confirmed. Considering the age of the revision petitioner and the fact that the incident took place about 18 years back, the sentence imposed on the revision petitioner is modified as follows in view of the decision of the apex court in **Chandramohan Nair v. State of Kerala [1994 Supreme Court Cases (Cri.) 1750]** : Revision Petitioner is sentenced to simple imprisonment for four months and fine of Rs.5,000/- (Rupees five thousand only) under Sec.304A IPC, in default, simple imprisonment for three months. I am not interfering in the Crl. Rev.Pet. No.3693 of 2006 9 sentence imposed by the courts below under other sections. The sentence shall run concurrently. Revision petitioner is directed to surrender in the trial court to undergo the modified sentence, failing which, the learned shall issue non bailable warrant forthwith. This Criminal Revision Petition is disposed of accordingly. Sd/- **P.D. RAJAN, JUDGE** / True Copy / NS/06/08/2016 P.A. To Judge