Murukesan, S/o Andi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **WEDNESDAY, THE 1ST DAY OF JUNE 2016/11TH JYAISHTA, 1938** **CRL.REV.PET.NO. 2525 OF 2004 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRIMINAL APPEAL NO.177/1999 OF ADDITIONAL SESSIONS COURT (FAST TRACK COURT NO.1), PALAKKAD DATED 22-07-2004** **AGAINST THE JUDGMENT IN C.C. NO.461/1996 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,CHITTUR DATED 30-09-1999** **-------------------------** **REVISION PETITIONER(S)/APPELLANT/ACCUSED : ----------------------------------------** **MURUKESAN, S/O.ANDI, CHINGATTUKULAMBU VEEDU, THATHAMANGALAM.** **BY ADVS.SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ** **RESPONDENT(S)/ COMPLAINANT: ------------------------** **STATE OF KERALA, 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 01-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. R.P. No.2525 of 2004 --------------------------------Dated this the 1[st] day of June, 2016** ## **O R D E R** This revision petition is preferred against the judgment in Criminal Appeal No.177 of 1999 of the Additional Sessions Judge (Fast Track-I), Palakkad. He was charge sheeted in C.C. No.461 of 1996 by the Judicial First Class Magistrate Court, Chittur under Sec.279 and 304(A) of the Indian Penal Code. The learned Magistrate convicted the accused under Secs.279 and 304(A) IPC and sentenced him to undergo rigorous imprisonment for three months under Sec.279 IPC and rigorous imprisonment for one year and fine of Rs.5,000/- in default, rigorous imprisonment for three months under Sec.304(A) IPC. Against that, he preferred the above Criminal Appeal before the Additional Sessions Judge (Fast Track-I), where the learned Additional Sessions Judge confirmed the conviction and modified the sentence. Being aggrieved by that, he preferred this revision petition. Crl. R.P. No.2525 of 2004 2 2. The charge against the accused is that on 22.08.1996 at 4.30 p.m., he drove a lorry bearing no.KL.Z-2379 in a rash and negligent manner along the Pudunagaram-Palakkad public road and when he reached at Peruvemba junction, while overtaking another vehicle, it hit on a motorcycle bearing no.KRP-9797. As a result, the rider of the motor cycle died and the pillion rider sustained serious injuries. Pudunagaram Police registered the case and after completing investigation, Circle Inspector (in charge of Kuzhalmannam CI), Alathur laid charge before the Judicial First Class Magistrate Court, Chittur. During trial, prosecution examined PW1 to PW10 and marked Exts.P1 to P11 as documentary evidence. MO1 series was admitted as material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. 3. Learned counsel appearing for the revision petitioner contended that the rash and negligent driving of the revision petitioner was not proved in this case. The place of occurrence noticed as 65 cms east from the Crl. R.P. No.2525 of 2004 3 western tar end itself is sufficient to prove the defence contention advanced by the revision petitioner. The report submitted by the Assistant Motor Vehicle Inspector is corroborating that contention and the probability of the mechanical defect of the vehicle can be ruled out from the available circumstances. 4. In reply, the learned Public Prosecutor contended that the rash and negligent driving stated by PW1 and PW2 is sufficient to sustain the conviction. No mechanical defect was noticed to the vehicle therefore, the probability of the accident due to mechanical defect is not sustainable from the facts proved in this case. 5. Driving a vehicle on a public way in a manner so rash or negligent to endanger human life or likely to cause hurt or injury to any other person is an offence under the Indian Penal Code. Therefore, the driver of the vehicle is supposed to know that if he drove the vehicle at a high speed endangering human life he will be punished for such offence. At the same time, causing death by rash or negligent act not amounting to murder is culpable homicide and also punishable. Therefore, what is rash act Crl. R.P. No.2525 of 2004 4 or negligent act has to be identified by the court while analysing the evidence. ## 6. The Apex Court in **S.N. Hussain v. State of Andra Pradesh [(1972) 3 SCC 18]** held as follows: (i) 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 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.(para 7) (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. ## 7. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the Crl. R.P. No.2525 of 2004 5 circumstance of each case. When negligence is an issue, the particular circumstances constituting the accident in a particular case may sometime speak for itself. The different circumstances connecting could be clear and unambiguous to prove that somebody was negligent so as to cause such an accident. The accident must be of a kind which does not happen in the ordinary course of things, if those conditions were managed properly by due care and caution. Secondly, the event which causes the accident must be within the control of the revision petitioner. If the injury is caused where the defendant can control such incident, it is presumed that he has not applied due care and caution to avoid such accident. Therefore in criminal cases, burden of proving the negligence is always on the part of the prosecution. For identifying this mandatory requirement in a criminal case, I have analysed the oral evidence of the occurrence witnesses in this case. 8. While adverting to the rash and negligent driving, I have examined the evidence of the occurrence witness. The evidence of PW1 shows that he was Crl. R.P. No.2525 of 2004 6 proceeding through the place of occurrence, at that time, the deceased and his wife were proceeding in the motorbike towards the northern side. At that time a lorry came from the opposite direction, while overtaking another jeep, hit against the motor bike. As a result, the deceased sustained serious injuries, immediately he was removed to hospital. For that, he gave Ext.P1 statement to the police. This witness was cross examined by the defence counsel. In cross examination, he asserted that the accident was solely due to the rash and negligent driving of the driver of the lorry no.KL.Z-2379. 9. PW2, wife of the accused supported the evidence of PW1. Her evidence shows that she was the pillion rider in the motor bike and on 22.08.1996 at 4.30 p.m., the offending lorry hit on the motor bike and she sustained serious injuries. She lost one tooth. A close analysis of the evidence of PW1 and PW2, it is clear that they deposed about the alleged rash and negligent driving of the revision petitioner. 10. The criminality lies in such a case in running the risk of doing an act with recklessness or Crl. R.P. No.2525 of 2004 7 indifference as to the consequences. In this context, it is better to peruse Ext.P7 scene mahazar which was prepared by PW10. PW4 recorded the statement of PW1 and on the basis of that, he registered a crime. Ext.P3 is the First Information Report. PW10 obtained Ext.P8 and Ext.P9 reports. He also obtained Ext.P10 and P11 reports of the Assistant Motor Vehicle Inspector, in which no mechanical defect was noticed in it. PW5, the owner of the lorry, gave Ext.P4 Kychit and PW6 gave Ext.P5 Kychit. 11. Immediately after the incident, the body was sent for postmortem examination. Ext.P2 is the inquest report. PW7 conducted postmortem examination and issued Ext.P6 postmortem certificate. The death was due to the head injury caused in the accident. The District Police Surgeon, Palakkad noticed serious internal injuries. Therefore, it is clear that the death was due to the injuries sustained in the accident. 12. A close analysis of the above evidence in the instant case, it is found that revision petitioner was driving his lorry at a high speed in a rash and negligent Crl. R.P. No.2525 of 2004 8 manner which resulted in the accident. Ext.P7 seizure mahazar shows that the accident occurred 65 cms east from the western tar end and the deceased was travelling towards northern side keeping his side. Revision petitioner was riding from north to south. The road portion at the place of occurrence has a width of 4.96 metres. Both courts considered the rash and negligent act and convicted the revision petitioner. The contention raised by the learned counsel that negligent and rash driving is not proved in this case is unsustainable and I discard that contention. There is no merit in this revision petition and it is dismissed accordingly. NS/02.06.2016 Sd/- **P.D. RAJAN, JUDGE** / True Copy / P.A.To Judge