Mohanan, s/o Anandan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **FRIDAY, THE 19TH DAY OF OCTOBER 2012/27TH ASWINA 1934** **Crl.Rev.Pet.No. 348 of 2003 ( )** **------------------------------CC.104/1996 of ADDL.CHIEF JUDIICAL MAGISTRATE COURT,EKM CR.APPEAL NO.43/2001, OF V ADDITIONL SESSIONS JUDGE, EKM** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **MOHANAN, S/O. ANANDAN, MUNDAKKAL VEEDU, PALLURUTHY KARA, RAMESWARAM VILLAGE, KOCHI-6.** **BY ADVS.SRI.T.K.PANKAJASHAN PILLAI SRI.R.SIVASANKAR RAO SRI.SAJI PANKAJAKSHAN** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **--------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** acd ## **S. SIRI JAGAN, J.** ------------------------------------------- ## Crl.R.P. No.348 of 2003 ---------------------------------------------Dated this the 19[th] day of October, 2012 ## **ORDER** The petitioner is the accused in C.C.No.104/96 before the Additional Chief Judicial Magistrate's Court, Ernakulam. He was prosecuted for offences punishable under Sections 279 and 304A of the Indian Penal Code. 2. The prosecution case is as follows:- On 5.5.1993 at about 6.50 p.m, the accused drove his car bearing Registration No.KBE 8558 in a rash and negligent manner so as to endanger human life, along the Tripunithura - Poothotta Public Road towards south and when the vehicle reached Udayamperoor 10[th] mile, it knocked down one Muniswami, who was riding a cycle along the western side of the road towards north, as a result of which he sustained grievous hurt and succumbed to the injuries at the hospital. Hence the petitioner committed the offences charged against him. The prosecution examined PWs 1 to 7 and marked Exts.P1 to P6. The defence examined DW1 in chief Crl.R.P.No.348/03 2 examination but, he was not available for cross examination. On the basis of the evidence of the witnesses and Exhibit P4 scene mahazar, the Magistrate came to the conclusion that the prosecution has proved the guilt of the petitioner beyond a reasonable doubt. Accordingly, the Chief Judicial Magistrate convicted the petitioner and sentenced him to undergo simple imprisonment for one year and to pay fine of Rs.5,000/(Rupees five thousand only) with a default sentence of three months' imprisonment under Section 304A of Indian Penal Code. No separate sentence was awarded under Section 279 of the Indian Penal Code. The petitioner challenged the judgment of the Chief Judicial Magistrate by filing Criminal Appeal No.43/2001 before the V[th ] Additional Sessions Judge, Ernakulam, who dismissed the same. The petitioner is challenging the judgments of the courts below in this Criminal Revision Petition. 3. The learned counsel for the petitioner contends that the prosecution has not proved the guilt of the petitioner beyond a reasonable doubt. He submits that the lower courts misdirected themselves in appreciating the evidence of the witnesses and other evidence available. According to the Crl.R.P.No.348/03 3 petitioner, on the basis of the oral evidence available, the petitioner could not have been convicted. He submits that the so called eye witnesses PWs 1 and 2 could not have actually seen the occurrence sitting inside their shops, which has been proved by the evidence of PW6, who categorically states that sitting inside their shops, PWs 1 and 2 can see only what is happening in front of their shops. The petitioner submits that the accident occurred only because the deceased suddenly crossed the road, which has been proved by the evidence of DW1, who gave evidence to the effect that the petitioner was driving the vehicle carefully and the accident occurred only because the deceased suddenly crossed the road from west to east. The learned counsel for the petitioner submits that the mere fact that a vehicle was on the wrong side does not ipso facto prove rashness and negligence on the part of the driver. In support of his contention, the petitioner relies on the decision of this Court in _**Sanku Balan**_ v. _**State**_ [1972 KLT 982]. The learned counsel for the petitioner further submits that the Supreme Court has, in the decision of the _**Mahadeo Hari Lokre**_ v. _**The State of Maharashtra**_ [AIR 1972 Supreme Court 221], held that if a pedestrian suddenly crosses Crl.R.P.No.348/03 4 a road without taking note of the approaching bus, there is every possibility of his dashing against the bus without the driver becoming aware of it. Therefore, in this case also, the very same thing happened, for which the petitioner cannot be found fault with is the contention raised. The learned counsel for the petitioner further points out that, the lower courts have not discussed the evidence in the right perspective. They have simply accepted the evidence of the witnesses without discussing what the evidence actually was. The learned counsel for the petitioner submits that such practice has been frowned upon by the Supreme Court in the decision of _**Mukthiar Singh and another**_ v. _**State of Punjab**_ [AIR 1995 SC 686]. It is further submitted that in the absence of any clear evidence regarding rashness and negligence of the petitioner in driving his vehicle, simply because the scene mahazar shows that the scene of occurrence is on the wrong side of the road of the petitioner's vehicle, the petitioner cannot be legally convicted. 4. In answer to the same, the learned Public Prosecutor would contend that there is more than sufficient evidence adduced in this case, which would prove the guilt of Crl.R.P.No.348/03 5 the petitioner beyond a reasonable doubt. According to the learned Public Prosecutor, the scene mahazar is a very important document, which would prove the rashness and negligence in driving, better than an eye witness, who may go wrong in perceiving the accident. In support of that contention, the learned Public Prosecutor relies on the decision of this Court in _**Vijayan**_ v. _**State of Kerala**_ [2010 (3) KLT SN 17 (Case No.22). It is also contended that DW1, who deposed in favour of the petitioner was not available for cross examination and therefore, his evidence could not have been relied upon to prove the case of the petitioner that the deceased suddenly crossed the road, which was the reason for the accident. It is further submitted that even assuming that it is so, the evidence is to the effect that the road is a straight road with visibility to considerable distance and therefore the petitioner could have very well applied brake before the vehicle reached the deceased, which he has not done. In support of that contention, the learned Public Prosecutor relies on the decision of this Court in _**Thomas**_ v. _**State**_ [AIR 1971 KLT SN 7] in Cr.R.P.No.438/1970. It is further contended that even assuming that the deceased contributed to the accident, the Crl.R.P.No.348/03 6 principle of contributory negligence is alien to criminal jurisprudence and if the accident occurs because of the negligent act of the accused, the fact that the victim also contributed to the accident by negligence is no defence for the accused in a criminal case. On the basis of these arguments, the learned Public Prosecutor would contend that the prosecution has proved the guilt of the petitioner beyond any reasonable doubt and therefore, there is no infirmity whatsoever in the judgments of the courts below. Therefore, the learned Public Prosecutor argues for dismissing the criminal revision petition. 5. I have considered the rival contentions in detail. 6. I have gone through the evidence of PWs 1 to 3. PWs 1 and 2 are owners of shop rooms by the side of the road near the place of occurrence. They have stated that they were sitting inside their shop rooms at the time of the accident and they actually witnessed the accident. According to them, the accident occurred only because the petitioner drove the vehicle negligently on the wrong side of the vehicle. Of course, PW6 has in his cross examination stated that the accident occurred 25 metres away from the shop of PW1 and sitting inside their 7 Crl.R.P.No.348/03 shops, PWs 1 and 2 can see only the happenings in front of their shops. But, that is not the last word in the matter. PW3 has categorically stated that he saw the accident while standing by the side of the road and it was only because of the negligent driving of the petitioner that the accident occurred. In chief examination, he stated that the petitioner drove the vehicle at a very high speed from north to south and the deceased was coming in a cycle from south to north. The petitioner hit the deceased on the western side of the road which is the wrong side of the petitioner's vehicle, consequent to which the deceased was thrown upwards and landed on the road under the bonnet of the petitioner's vehicle resulting in serious injuries. On his way to the hospital he succumbed to the injuries. The petitioner had extensively cross examined PW3, but nothing material could be brought out to discredit the evidence of PW3. The evidence of PW3 is squarely supported by the scene mahazar. In the scene mahazar, it is specifically stated that the tar road at the scene of accident was 3.08 metres in width. The road is a straight road for 75 metres towards north and south and the road is a level road. The exact place of occurrence is stated as 60 cms, from the Crl.R.P.No.348/03 8 western end of the tar road towards east. The importance of a scene mahazar has been explained by a learned Judge of this Court in Vijayan's case (supra) as follows: In road traffic accidents, to determine the negligence or rashness, scene mahazar describing place of occurrence is a very important piece of document. Scene mahazar is prepared mainly to bring on record the width of the road and margin, the portion of the road where the accident occurred, whether the road was straight or bent, whether there is tyre mark indicating application of brake, the distance at which the vehicle could be stopped after applying the brake, the lie of vehicle after accident etc. Often witnesses would not be in a position to give precise evidence regarding the spot of occurrence and other relevant material particulars. At the same time, the scene mahazar could give a picturesque description. In case of head on collision, scene mahazar would enable one to ascertain which vehicle was on the correct side and which was on the wrong side. Width of the road, spot of occurrence, tyre marks, lie of the vehicle etc described in the mahazar would speak volumes than witnesses. Ordinarily, the evidence of witnesses regarding the negligence of the driver wouldn't be better than a layman's opinion. Sometimes the witnesses may lie. When two vehicles are involved, the drivers may attribute negligence against each other. Here in this case, the revision petitioner attributes negligence against the driver of the car as against the prosecution attributing negligence against the revision petitioner. According to the learned counsel for the revision petitioner, the car was driven to the right side of the road and hit against the bus, which was driven along the left side of the road in the opposite direction. When confronted with such disputes, scene mahazar narrating the place of occurrence would enable one to have a better appreciation of the evidence.” Crl.R.P.No.348/03 9 That decision squarely applies to the facts of this case. Apart from the same it is squarely supported by the evidence of PW3 as well. 7. Of course DW1 has given evidence in support of the petitioner's case that it is because the deceased suddenly crossed the road from west to east that the accident occurred and that the petitioner was driving his vehicle carefully. His evidence cannot be accepted except with a pinch of salt, for more than one reason. First is that he was not available for cross examination. He was examined in chief on 27.5.1999. After completion of the chief examination, the case was adjourned for cross examination, since the Assistant Public Prosecutor was not available on that day. Thereafter, DW1 was not present for cross examination. The court issued non-bailable warrant to secure his presence. In fact he was produced in court for one day and he was bound over. But thereafter also he did not appear for giving evidence. Again non-bailable warrant was issued, but it could not be executed. Ultimately the court posted the case for hearing without waiting for DW1 to appear for cross examination. It is not because of any fault on the part of the prosecution that DW1 Crl.R.P.No.348/03 10 could not be cross examined. Apart from that, DW1 was at the best only a chance witness. He claims to have been going from Kottayam to Ernakulam by sitting beside the driver in a lorry as cleaner of that lorry. But there is no reference to the said vehicle or DW1 in any of the case records. In fact, the witness originally appeared not as a summoned witness but as a witness produced by the petitioner himself. Therefore, I am not inclined to rely on the evidence of DW1 to any extent. The decision referred to by the counsel for the petitioner cannot be relied upon in the facts and circumstances of this case. In fact I am of opinion that this is a very fit case where the principle of res ipsa loquitur should be applied, especially in view of the scene mahazar. Even if as contended by the counsel for the petitioner the evidence of PWs 1 & 2 are not sufficient to prove rashness and negligence on the part of the petitioner, the evidence of PW3 read with the scene mahazar, clinches the issue in favour of the prosecution. Therefore, I am of opinion that the prosecution has proved their case against the petitioner beyond a reasonable doubt in this case. Hence, I am not inclined to interfere with the conviction entered by the lower courts. Crl.R.P.No.348/03 11 The counsel for the petitioner makes a fervent plea for reducing the sentence. He submits that the incident occurred in 1993, almost 20 years ago and the petitioner is now suffering from acute diabetics as a result of which some of the fingers of his leg have been amputated. Taking into account the facts and circumstances of the case I am inclined to reduce the sentence of imprisonment to six months. No other lenience is called for in the matter of punishment also. With the above modification in the sentence, the Cr. R.P. is disposed of. ## **S. SIRI JAGAN, JUDGE** acd