Moncy v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **TUESDAY, THE 4TH DAY OF OCTOBER 2016/12TH ASWINA, 1938** **CRL.REV.PET.NO. 1080 OF 2006 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.109/2002 OF ADDITIONAL DISTRICT & SESSIONS (ADHOC)COURT-I, PATHANAMTHITTA DATED 17-01-2006** **AGAINST THE JUDGMENT IN CC NO.404/1999 OF CHIEF JUDICIAL MAGISTRATE,PATHANAMTHITTA DATED 25-04-2002 -------------------------** **REVISION PETITIONER(S)/APPLICANT/ACCUSED.:** **-----------------------------------------** **MONCY, S/O PODIYAN, BENCY VILLA, KODUMON MURI, KODUMON VILLAGE, PATHANAMTHITTA DISTRICT.** **BY ADV. SRI.MVS.NAMBOOTHIRY** **RESPONDENT(S)/RESPONDENT/COMPLAINANT:** **-------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.C.N.PRABHAKARAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. Rev.Pet. No.1080 of 2006 ---------------------------------Dated this the 04[th] day of October, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.109 of 2002 of the Additional Sessions Judge, Adhoc-I, Pathanamthitta. He was charge sheeted in C.C. No.404 of 1999 by the Chief Judicial Magistrate, Pathanamthitta for the offences under Secs.279 and 304(A) of the Indian Penal Code ('IPC' for short). After trial, the learned Magistrate convicted the accused and sentenced him to undergo rigorous imprisonment for one year and fine of Rs.25,000/- in default of payment of fine, simple imprisonment for two months under Sec.304(A) IPC. No sentence was awarded under Sec.279 IPC. Against that, he preferred the above criminal appeal before the Sessions Court, where the learned Additional Sessions Judge modified the sentence to simple imprisonment for six months and confirmed the other findings of the trial court. Being aggrieved by that, the accused preferred this Crl. Rev.Pet. No.1080 of 2006 2 revision petition. 2. The charge against the accused is that on 24.07.1999 at 8.30 a.m., the accused had driven a bus bearing registration No.KL-6-6012 in a rash and negligent manner endangering human life through Kozhenchery to Pathanamthitta public road and when it reached in front of General Hospital, Pathanamthitta, it hit against a pedestrian and the bus run over her body thereby, the accused committed the aforesaid offences. Pathanamthitta Police registered a crime and after completing investigation, Sub Inspector, Pathanamthitta laid charge in the Chief Judicial Magistrate, Pathanamthitta. During trial, prosecution examined PW1 to PW8 and marked Exts.P1 to P8 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 principle of rash and negligent driving has been explained by the Apex Court in **S.N. Hussain v. State of A.P. [1972 (3) Supreme Court Cases 18]** which reads as follows: Crl. Rev.Pet. No.1080 of 2006 3 1. 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 the 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. 4. Heard both sides. While adverting to the argument advanced by both sides, I have considered whether the rash act or the negligent act of the revision petitioner resulted in the death of the deceased, Vijayamma. Prosecution examined PW1 to PW3 as occurrence witnesses to prove the rash and negligent driving of the revision petitioner. According to the prosecution PW1 gave Ext.P1 statement to the Police with regard to the accident. He did not witness the accident. PW2, the daughter of the victim, was proceeding with her ## Crl. Rev.Pet. No.1080 of 2006 4 mother at the place of occurrence. Her evidence shows that the revision petitioner had driven the vehicle at a high speed and it hit against the body of her mother. Due to the impact she fell down and the wheel run over her body. Revision petitioner did not stop the vehicle and proceeded further. She identified the revision petitioner at the place of occurrence. Subsequently, she identified him at the Police station also. She narrated the incident to the Police while she was questioned by the investigating officer. This evidence was supported by another eye witness PW3 who was standing near the place of occurrence. Analysing the evidence of PW2 and PW3, it is clear that the rash act or negligent act committed by the revision petitioner is the reason for the accident. 5. The medical evidence is also corroborating the prosecution case. Ext.P4 is the postmortem certificate which shows that the death was due to multiple injury sustained to the deceased. Dr.Umesh, the District Police Surgeon, examined the deceased on 24.07.1999 at 11.45 a.m. at General Hospital, Pathanamthitta and issued Crl. Rev.Pet. No.1080 of 2006 5 Ext.P4 certificate. PW8, Assistant Motor Vehicle Inspector, furnished Ext.P8 report in which, no mechanical defect was noticed to the vehicle. The owner of the vehicle issued Ext.P2(a) reply notice. 6. While dealing with rash and negligent driving, Apex Court in **Mohanthalal Saha V. State of West Bengal** (1968 ACJ 124) held that the statement of witness that the bus was coming at a high speed is not sufficient to justify the conviction. In **Suleiman Rahiman Mulani and another V. State of Maharashtra** (1968 Crl.L.J 1013) it was held as follows:- “Speed alone is not the criterion for deciding rashness or negligence on the part of the driver. A motor vehicle is intended to be driven in speed. The relationship between speed and rashness or negligence depends upon the place and time. In a straight wide road, where obstructions from other vehicles or pedestrians are not there, it cannot be said that driving in speed or absence of sounding horn by themselves will amount to rashness or negligence.” 7. It is true that at the place of occurrence, it is ## Crl. Rev.Pet. No.1080 of 2006 6 a busy area therefore he has to drive the vehicle with due care and caution. The courts below, after analysing the evidence, concluded that the rash and negligent act of the revision petitioner itself is the reason for the accident. The witnesses were effectively cross examined by the defence counsel. Nothing has been brought out to discredit their direct oral testimony. 8. In this context, I have examined the place of occurrence. Ext.P6 is the scene mahazar. The place of occurrence marked in Ext.P6 is 40 cms south from the northern tar end. The tarred portion has a width of 8.50 cms. The southern road margin has 1 metre width and the northern road margin has 62 cms. Analysing the evidence, it is clear that the trial court rightly examined the documents, the place of occurrence and the oral and documentary evidence furnished by the prosecution witnesses. I find no illegality in the above finding. Therefore, the conviction under Sec.279 and 304A IPC is only to be confirmed. 9. Learned counsel appearing for the revision petitioner contended that the incident was occurred in ## Crl. Rev.Pet. No.1080 of 2006 7 the year 1999, 17 years back and he prays some leniency in the sentence. The apex court in **Chandramohan Nair** **v. State of Kerala [1994 SCC Cri.1750 ]** took the view that three months rigorous imprisonment is sufficient to meet the ends of justice which reads as follows: “There is no dispute that the accused was driving the car, but according to the learned counsel, the car was proceeding on a public road and the deceased crossed suddenly and the same resulted in an accident which cannot be said that the appellant was driving the car rashly and negligently. This is a question which depends upon the merit in each case. The evidence on record i.e., of PW1 shows that the deceased was crossing the road at a distance of 50 feet away from the running car. In such a situation it would not have been impossible for the accused to apply brakes. That apart, the number of injuries would show that the impact must have been very severe. The appellant without stopping the car sped away. This circumstance would go to show that he acted rashly and negligently. There is no merit in this appeal and the same is dismissed accordingly. But having regard to the fact that the incident took place in the year 1981, the sentence is reduced to 3 months RI. The payment of fine Crl. Rev.Pet. No.1080 of 2006 8 with default clause, if any, is confirmed. The appellant shall surrender and serve out the remaining portion of sentence, if any. ” 10. Accepting the parameters laid down by the apex court, the revision petitioner is entitled to get some leniency in the sentence. Considering the facts and circumstances of the case the sentence imposed by the trial court is modified as follows **:** Revision petitioner is sentenced to rigorous imprisonment for three months and the fine imposed by the trial court is confirmed. Revision petitioner is directed to surrender in the trial court to undergo the modified sentence forthwith. This revision petition is disposed of accordingly. ## Sd/- **P.D. RAJAN, JUDGE** / True Copy / NS/05/10/2016 P.A. To Judge