Mohammed Shafi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **THURSDAY, THE 31[ST] DAY OF MARCH 2022 / 10TH CHAITHRA, 1944 CRL.MC NO. 4870 OF 2021** **CC 215/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS , PARAVOOR** ## **PETITIONER/GURDIAN OF VICTIM:** **MOHAMMED SHAFI AGED 50 YEARS** **S/O. SHAHUL HAMEED, SHA NIVAS, ANAAPPARA, KADAKKAL P.O, KOLLAM DISTRICT.** **BY ADVS. P.SAMSUDIN M.ANUROOP** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031.** **SR. PP – SMT.V.SREEJA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18.01.2022, THE COURT ON 31.03.2022 PASSED THE FOLLOWING:** Crl.M.C. 4870/2021 2 ## **O R D E R** Petitioner is the unfortunate father of a young man, who was killed in a most terrible motor accident happened at the wee hours, at 2.15 a.m. on 01.01.2015 at Chathannur police station limits on ThiruvananthapuramKollam sector of the National Highway, near JSM Hospital junction at Meenad village in Karamcode. In the accident, an Alto car travelled by six young men through the National Highway from Thiruvananthapuram to Kollam direction collided with a gas tanker lorry which had been moving in the opposite direction and all the six passengers of the car were killed instantaneously, on the spot itself. On the basis of the first information furnished by one Kunjumon, who is the near relative of one of the deceased, crime 1/2015 of Chathannur police station was registered under Sections 279 and 304A of the IPC against the driver of the gas tanker. But after investigation, the Assistant Commissioner of Police, Kollam Crime Branch, Sri. R. Jayasankar, filed a final report alleging offence under Sections 279 and 304A of the IPC against one of the deceased. In other words, an abated charge sheet was laid against the driver of the car Sri.Nixon Aby Mathew who was the classmate and friend of deceased Adil Shah, the son of the petitioner. Crl.M.C. 4870/2021 3 2. The prosecution allegation is that on 01.01.2015 the said Nixon Aby Mathew, along with five classmates went to Varkala beach in his car KL-2-AC-1370 and after visiting CW7 and celebrating the New year, returned to Kollam in the said car. Due to very rash and negligent driving of the car by the said Nixon Aby Mathew, it happened to collide with gas tanker lorry, KL-39-C-4577, driven by CW8 and in the incident all the six passengers of the car suffered very fatal injuries and died on the spot itself. After conducting a detailed investigation, the Investigating Officer concluded that the accident had occurred due to the rash and negligent driving by Nixon Aby Mathew. Thus an abated charge sheet was laid before Court, which was accepted by the Court. However, later the father of the said Nixon Aby Mathew moved a petition before the Assistant Commissioner, Special Branch, Kollam, at whose instance further investigation was conducted, after getting the orders of the City Police Commissioner, Kollam. Thus, further investigation was initially conducted by a Sub Inspector one Anoop followed by Assistant Commissioner of Police, District Crime Branch, Kollam. After further investigation, it was concluded that the incident was an unavoidable accident, that the incident had happened when the Alto car was trying to overtake a pick-up van and since the driver of the van did not give side, it hit on the left side of the car, Crl.M.C. 4870/2021 4 then the car happened to hit against the lorry and thus after deleting Sections 279 and 304A IPC, the final report has been laid as a motor occurrence, virtually exonerating the said Nixon Aby Mathew and reversing the finding of the earlier report of the Assistant Commissioner. Aggrieved by the said finding, the petitioner has moved this Court under Section 482 of the Cr.P.C. for quashing the Annexure-A6 motor occurrence report filed by the Assistant Commissioner. 3. I heard the learned counsel for the petitioner and also the learned Senior Public Prosecutor. I have also summoned the Case Diary and perused the same. The petitioner has produced Annexures-A1 to A8 documents to support his contentions. 4. According to the learned counsel for the petitioner, the Annexure-A1 report is based on true facts and also after taking the oral testimony of eye witnesses into confidence; no serious investigation was conducted thereafter; the second investigation was virtually conducted by a Sub Inspector, which is illegal. The Assistant Commissioner of District Crime Branch has not conducted serious investigation, under the influence of the father of the said Nixon Aby Mathew the Assistant Commissioner of the District Crime Branch was trying to white wash the real culprit, it is intended to obtain compensation from the MACT to the legal Crl.M.C. 4870/2021 5 representatives of the culprit and therefore Annexure-A6 report is liable to be quashed. 5. The learned counsel also invited my attention to Annexure-A7 scene mahazar and Annexure-A8 sketch relied on by the police. According to him, in fact the Assistant Commissioner of District Crime Branch did not conduct a proper investigation in the case. The second report, Annexure-A6, has been submitted with the intention to save the owner of the car from liability to the claimants in claims for compensation. Actually, after long lapse of time no fresh evidence could be collected in the second investigation. He has proceeded on some false assumptions. From the final reports and the scene mahazar it is clear that the car was virtually on the wrong side and rashness and negligence on the part of Nixon Aby Mathew cannot be covered up by any attempt made by his father. He also relied on the decision reported in **State of Karnataka v. L. Muniswami and others [(1977) 2 SCC 699]** . 6. I heard the learned Senior Public Prosecutor also. 7. A worst motor accident had happened on the National Highway in which six young persons, who were classmates in TKM Engineering College, met with their end while returning after attending a revelling New Year celebration in Varkala beach. The eye witnesses to the incident, Crl.M.C. 4870/2021 6 including CW8 the driver of the gas tanker lorry, have clearly testified that the incident had occurred due to the rash and negligent driving by the said Nixon Aby Mathew, the driver of the car. On the other hand, the parents of the said Nixon Aby Mathew, Mathew Alexander and Lissy Mathew, filed a complaint as if the drivers of the lorry and the pick-up van were negligent, which was the cause of the incident. On that basis, after intimating the court, a further investigation was conducted and AnnexureA6 report was filed. But after going through the materials on record, I have no doubt that Annexure-A6 report cannot meet test of reasonableness. 8. Firstly, there is no dispute that the car was driven by Nixon Aby Mathew. As rightly pointed out by the learned counsel for the petitioner, there are overwhelming materials to say that the car driven by Nixon Aby Mathew was in a very rash speed. The incident had happened when he was trying to overtake a pick-up van and in that process the car collided with the lorry which was moving in the opposite direction from Kollam side to Thiruvananthapuram direction. At the place of occurrence the National Highway lies on east-west orientation. The lorry was moving from west to east whereas the car was moving in the opposite direction, from east to west. The incident had happened clearly on the northern half of the road, beyond the mid line. Eye witnesses have spoken in clear terms Crl.M.C. 4870/2021 7 that the car was dashing against the lorry and ramming beneath the gas tanker lorry; it was after taking the lorry reverse and opening the doors of the car using hydraulic cutter by the Fire Force men that body of six men entrapped in the car could be taken out. By the time all of them had breathed their last. In other words, the oral evidence of witnesses clearly indicate that the car was dashing against the lorry in high speed. 9. Secondly, the Annexure-A7 scene mahazar clearly indicates that the road at the place of occurrence had a width of 10.20 metres. The incident had happened at 7.10 m north from the southern tar end and 3.10 m south from the northern tar end. As stated earlier, the road is on eastwest orientation and the lorry was moving from west to east keeping its correct side and the incident occurred clearly on the wrong side of the car. In other words, at the place of occurrence, the car had gone estray, to the wrong side. 10. The learned counsel for the petitioner hinted that the driver of the car was drunk. It must be stated that they were revellers who were returning after attending the new year celebrations in Varkala beach. Therefore, the possibility that they had boarded the car and the said Nixon Aby Mathew had driven the car after taking alcohol cannot be ruled out. Case diary notings on 17.01.2015 indicate that postmortem reports Crl.M.C. 4870/2021 8 indicated that body of Nixon Aby Mathew, Sijo George John, Aju Prakash and Adil Shah contained fluid smelling alcohol. That apart, eye witnesses have spoken that the car was moving in a rash manner and the incident had happened when the driver of the car had overtaken a vehicle moved ahead ignoring the approaching gas tanker lorry from the opposite direction. That means, rashness and negligence on the part of the driver of the car are patent like daylight. 11. As rightly pointed out by the learned counsel for the petitioner, as per the standing instructions of the Kerala State Road Safety Authority, it is peremptory that in a motor accident when three or more persons die, the investigation should be conducted by an officer in the rank of Dy.S.P. or above. That was how the initial investigation was conducted by the said Jayasankar who was the Assistant Commissioner of Police, District Crime Branch. But after giving Annexure-A2 request, it has come out from Annexures-A4 and A5 that the investigation was taken over by Sub Inspector Mr.Anoop, which is illegal and against standing instructions. 12. It is also strange to note that the Case Diary contains a proceedings of the Assistant Commissioner of Police, District Crime Branch, M.R. Satheesh Kumar dated 02.10.2018, assigning the investigation in this case along with three other cases to the said Anoop, Crl.M.C. 4870/2021 9 the Sub Inspector. All the same, that has no effect so long as it is seen that the further investigation was conducted by the present Assistant Commissioner who laid the Annexure-A6 on 07.01.2019. 13. This is a clear case in which the principle of r _es ipsa loquitor_ is applicable. The incident had happened on the wrong side of the car. Even assuming that the opinion as to the cause of occurrence in the further investigation is correct, that will not exonerate the driver of the car. Going by the case, he was overtaking a pick-up van and that the incident happened since the pick-up van did not give side, enabling him to move to the southern portion of the road and thus he was made to hit against the lorry. That does not stand to reason. As per the Rules of the Road Regulation, it is clear that at night times vehicles shall not be overtaken, especially when a vehicle is moving in the opposite direction. Then the driver of the car should not have sped up and should have reduced the speed and should have taken his track, the southern side of the road while moving towards west; that has not been done. 14. Annexure-A6 report indicates that the Investigating Officer had examined the following witnesses: - (1)Ullas S/o. Unni, Kanchana Mandiram, Varinjam cheri, Kalluvathukkal village, Chathannur; (2)Umesh, S/o. Unni, -do-; Crl.M.C. 4870/2021 10 - (3)Anilkumar @ Kochukuttan, S/o. Sasikumar, Madanpoyka Charuvila house, -do-; - (4)Mercy D/o Dasammal Mercy Bhavanam, Mission Vila, Near JSM Hospital, Karamcode, Erancher, Meenad village; (5)Sarojam D/o Aliyamma, Mission Vila, - do-; - (6)Mercy, D/o Kunjamma, Bindu Bhavanam, -do-; (7)Sindhu, D/o. Jainamma, Robin vihar, Near JSM Hospital, -do-; - (8) Radhakrishnan @ Pattar, S/o. Adhichan, Vilayil House, South to Thattarconam petrol pump, Thattarconam cheri, Chirakkara Village; 15. It is also evident that the Assistant Commissioner had made a requisition to the Chief Judicial Magistrate for recording the statements; thus statements of some of the witnesses were recorded under Section 164 of the Cr.P.C. But except the said Ullas, Umesh, Anilkumar and Radhakrishnan, none had reportedly seen the incident. Of course, they had given statements to the Investigating Officer that they had witnessed the pick-up van and the car moving in a hectic and rash manner in the same direction; the car was trying to overtake the pick-up van and at the place of occurrence the pick-up van did not give side and ultimately the car hit against the gas tanker lorry. 16. On the request of the Investigating Officer the statements of four witnesses, Ullas, Umesh, Anilkumar and Radhakrishnan were recorded by the Judicial First Class Magistrate, South Paravur under Section 164 of the Cr.P.C. Copies of statements recorded under Section Crl.M.C. 4870/2021 11 164 of the Cr.P.C. also are available in the Case Diary. Those statements also indicate that the car and the pick-up van were moving at high speed and the incident had happened while the car was trying to overtake the pick-up van and in that process the car dashed against the lorry. The driver of the lorry was again examined by the present Investigating Officer who had stated in clear terms that he had seen two vehicles moving in the opposite direction, he could not take the tanker lorry further towards left and thus he stopped the vehicle and then the car was dashing against the lorry. 17. Of course, now there is a case that the incident had happened while the car was trying to overtake the pick-up van. As the pick-up van did not give side, the incident happened. Even if this version is taken as true, in my opinion, that cannot enable the Investigating Officer to give a clean chit to the said Nixon Aby Mathew, driver of the car. As indicated earlier, the incident had happened in the dead of night. The said pick-up van and the car were moving towards west. It is evident from statements of eye witnesses that the pick-up van moved ahead and the incident occurred when the car had tried to overtake the van. That means, the driver of the car was trying to overtake the pick-up van while the tanker lorry was moving in the opposite direction. In this connection, clause (d) Crl.M.C. 4870/2021 12 of Rule (6) of the Rules of Road Regulations, 1989, which was in vogue on the date of occurrence, prohibits a driver from overtaking a vehicle if the driver moving ahead of his vehicle has not signalled that he may be overtaken. 18. After considering all these materials and perusing the Case Diary, I have reasons to believe that Annexure-A6 report cannot stand and is not supported by materials or evidence. The incident is attributable to the rash and negligent driving of the Alto car. Therefore, the opinions formed in the further investigation are liable to be quashed and Annexure-A6 report shall stand quashed. The Crl.M.C. is allowed as above. **Sd/-** **K.HARIPAL JUDGE** okb/11.3.22 //True copy// P.S. to Judge Crl.M.C. 4870/2021 13 ## **APPENDIX OF CRL.MC 4870/2021** |PETITIONER ANNEXURES|| |---|---| |Annexure A1|TRUE COPY OF FINAL REPORT DATED 27.01.2016 IN| ||CRIME NO. 01/2015 IN CHATHANNUR POLICE| ||STATION,| |Annexure A2|TRUE COPY OF PETITION DATED 19.01.2015| ||SUBMITTED BEFORE THE ASST. POLICE| ||COMMISSIONER SPECIAL BRANCH KOLLAM,| |Annexure A3|TRUE COPY OF ORDER NO. D1 24008/2018/QC DATED| ||17.05.2018.| |Annexure A4|TRUE COPY OF REPORT DATED 13.11.2018| ||SUBMITTED JFCM COURT (TEMP) PARAVOOR.| |Annexure A5|TRUE COPY OF ORDER IN CMP 6281/18 OF JFCM| ||COURT (TEMP), PARAVOOR DATED 19.12.2018.| |Annexure A6|CERTIFIED COPY OF THE FINAL REPORT (MOTOR| ||OCCURRENCE REPORT), DATED 29.11.2019 IN CRIME| ||NO. 01/2015 OF CHATHANOOR POLICE STATION.|