Nissar, s/o Muhammed Kunju v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 04TH DAY OF MARCH 2020/14TH PHALGUNA, 1941** **Crl.Rev.Pet.No.2297 OF 2011** **AGAINST THE JUDGMENT IN Crl.A.332/2010 OF ADDITIONAL SESSIONS COURT-I,MAVELIKARA** **AGAINST THE JUDGMENT IN CC 443/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, MAVELIKARA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **NISSAR, S/O.MUHAMMED KUNJU, ILLIYAKATHU THEKKETHIL VEEDU, ELIPPAKKULAM MURI,KATTANAM VILLAGE, ALAPPUZHA DISTRICT.** **BY ADVS. SRI.A.MOHAMMED SRI.K.I.SAGEER IBRAHIM SRI.GEORGE MATHEWS** ## **RESPONDENT/COMPLAINANT & STATE:** **STATE OF KERALA, REP.BY SUB INSPECTOR OF POLICE, NOORANAD POLICE STATION, (CRIME No.361/2008), NOORANAD, ALAPPUZHA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** **PUBLIC PROSECUTOR MS.M.N.MAYA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04.03.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.R.P.No.2297 of 2011 **==> picture [22 x 8] intentionally omitted <==** ## **ORDER** Revision petitioner is the accused in C.C.No.443 of 2008 on the file of the Judicial First Class Magistrate Court-II, Mavelikara. By judgment dated 31.5.2010, the trial court convicted and sentenced the accused to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for one month more for the offence punishable under Section 279 of IPC. The accused was further convicted and sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for one month more for the offence punishable under Section 338 of IPC. The trial court further convicted and sentenced the accused to undergo simple imprisonment for a period of two years and to pay a fine of Rs.10,000/in default to undergo simple imprisonment for four Crl.R.P.No.2297 of 2011 ..3.. months more for the offence punishable under Section 304A of IPC. The above sentences were ordered to run concurrently. 2. Challenging the conviction and sentence, the accused preferred Crl.A.No.332 of 2010 before the Additional Sessions Court-I, Mavelikara. By judgment dated 23.5.2011, the learned Sessions Judge dismissed the appeal confirming the conviction and sentence imposed by the trial court. Feeling aggrieved by the judgment dated 23.5.2011 in Crl.A.No.332/2010 on the file of the Additional Sessions Court-I, Mavelikara which arose from judgment dated 31.5.2010 in C.C.No.443/2008 on the file of the Judicial First Class Magistrate Court-II, Mavelikara, the revision petitioner is before this Court. 3. The prosecution case in brief is herein below:On 16.7.2008 at 5.15 pm, the accused drove a goods carriage vehicle bearing registration No.KL 35/776 Crl.R.P.No.2297 of 2011 ..4.. on Edappon-Para public road in a rash and negligent manner so as to endanger human life and while so, the vehicle hit against the motor bike bearing registration No.KL 31/A 881 which was being driven by one Aneesh Rajan and PW2 as pillion rider. On account of the accident, both the rider and the pillion rider sustained grievous injuries and Aneesh Rajan succumbed to the injuries later. 4. During the trial, PWs.1 to 15 were examined and marked Exts.P1 to P13. On closing the evidence of the prosecution, the accused was questioned under Section 313 (1)(b) of Cr.P.C. On being questioned under Section 313 of Cr.P.C., the accused contended that he was not the driver of the offending vehicle at the time of the accident. According to him, he was sitting on the right side of the vehicle. He further stated that when they were coming from North to West, the motor bike which was being ridden from South to North hit against their vehicle. In Crl.R.P.No.2297 of 2011 **==> picture [22 x 8] intentionally omitted <==** support of his case, DWs.1 and 2 were examined and marked Exts.D1 to D6 on his side. 5. Heard Sri.Grashious Kuriakose, learned Senior Counsel for the revision petitioner and Smt.M.N.Maya, learned Public Prosecutor for the respondent-State. 6. On appreciation of the entire evidence on record, both the trial court as well as the appellate court concurrently found that the accused was guilty for the offences punishable under Sections 279, 337, 338 and 304A of IPC and accordingly the accused was convicted and sentenced as stated in paragraph one supra. 7. The learned Senior Counsel for the revision petitioner Sri.Grashious Kuriakose contended that the trial court as well as the appellate court erroneously appreciated the evidence let in by PWs.2, 4 and 5 for convicting the petitioner. According to the learned Senior Counsel, PW2 was a pillion rider on the date of occurrence and PWs.4, 5 and 9 were cited as eye witnesses. It is Crl.R.P.No.2297 of 2011 **==> picture [22 x 8] intentionally omitted <==** submitted that PWs.5 and 9 are not eye witnesses to the occurrence. Relying on the evidence of PW5, it is contended that the accident took place from behind and he had no occasion to see the occurrence. So far as PW9 is concerned, it is submitted that his shop was situated 150 metres away from the place of occurrence. The learned Senior Counsel further submitted that the evidences of PW2 and PW4 are unreliable in the light of the evidence adduced by the defence. It is further submitted that the rider of the motor bike was not having valid driving license at the time of accident. Ext.P5 mahazar prime facie indicates that the accident took place on account of the negligence on the part of the rider of the motor bike. 8. In a motor vehicle accident case, it is the duty of the prosecution to prove the identity of the accused before court beyond doubt. Unless and until identity is proved, it is not possible to enter a finding that the rider Crl.R.P.No.2297 of 2011 **==> picture [22 x 8] intentionally omitted <==** of the vehicle drove the offending vehicle in a rash and negligent manner as alleged by the prosecution. PW1 lodged Ext.P1 First Information Statement before the police. Admittedly, he had no occasion to see the occurrence. He stated before court that on getting information, he had lodged Ext.P1 First Information Statement before police. 9. PW2 was the pillion rider of the vehicle. According to him, at the time of accident he was travelling by the motor bike which was being driven by Aneesh Rajan through Para-Edappon Public Road from South to North. He stated that, when he reached in front of a kavu (grove), the offending vehicle came from the opposite side in a rash and negligent manner and hit against the motor bike and as a result of which both of them were thrown away from the bike. He had sustained head injury. Both of them were taken to Pushpagiri Medical College at Thiruvalla. He underwent treatment for 26 days. Aneesh Crl.R.P.No.2297 of 2011 **==> picture [22 x 8] intentionally omitted <==** Rajan-rider of the motor bike sustained injuries and succumbed to the injuries later. He maintained that the accident occurred as a result of the rash and negligent manner of the driving of the offending vehicle. However, he stated that he could not identify the driver at the time of accident. 10. PW4 stated that on 16.7.2008 at 5.15 pm, while he was coming from the cashew nut factory he had witnessed the accident. According to him, the motor bike was coming from South to North direction on the Western side of the public road and the offending vehicle was coming from the opposite side. PW5, yet another witness in this case deposed that he had witnessed the occurrence and the accident occurred as a result of the rash and negligent driving of the offending vehicle which was being driven by the accused. 11. The prosecution mainly relied on the oral evidence of PWs.2, 4 and 5 to prove the occurrence. Crl.R.P.No.2297 of 2011 ..9.. Admittedly, the accused was a stranger to the place where the accident occurred. PW2 admitted that he could not identify the accused as the driver. On cross-examination of PW5, it was disclosed that, he could not witness the occurrence as the occurrence took place from behind and after the accident he came to know that the accident was occurred. So far as PW9 is concerned, it has come out in evidence that his shop room was situated 150 metres away from the place of occurrence. 12. PW4 is admittedly an employee of cashew nut factory which is situated 9 kms. away from the place of occurrence. The accident took place at 5.15 pm. His working time is up to 5 pm. DW1, who had been examined before the trial court, is the owner of the factory where PW4 was employed. DW2 is the Watcher attached to the factory of DW1. According to DW2, he has been maintaining a diary noting the entry and exist of an employee during working hours. He would say that PW4 Crl.R.P.No.2297 of 2011 **==> picture [28 x 8] intentionally omitted <==** left the factory premises on the date of occurrence at 5 pm. Relying on the oral evidence of DWs.1 and 2, it is contended that PW4 was not present at the time of accident and he was only a chance witness. 13. In Ext.P5 mahazar prepared by PW15, it is clear that damage was sustained on the left side of both the vehicles. There is no evidence adduced in this case to show that there was a head on collision and as a result of which the rider and pillion rider sustained injuries. No tyre mark was noted in the scene mahazar. No evidence was traced from the scene of occurrence to show that the offending vehicle hit against the motor bike and as a result of which the motor bike sustained damages. 14. To prove the identity of the driver of the offending vehicle, the prosecution failed to examine the owner of the offending vehicle before court. The trip sheet was also not produced. PWs.4 and 5 have no case that they had an occasion to see the accused prior to the Crl.R.P.No.2297 of 2011 ..11.. accident. The dock identification made before the trial court is unacceptable for the reason that the accused was a total stranger to PWs.4 and 5 on the date of occurrence. No test identification was conducted to prove the identity of the accused. PWs.4 and 5 did not adduce any evidence touching the identity of the accused before the trial court. 15. Admittedly, the deceased was 19 years old on the date of occurrence. He was driving a motor bike without any driving licence and while so, both the rider and pillion rider sustained injuries. On going through Ext.P5 mahazar and the oral evidence of PWs.4 and 5, the identity of the accused cannot be established beyond doubt. Further, the rider of the vehicle contributed and the accident is apparently as a result of contributory negligence on the part of the rider as well. In a case relating to rash and negligent driving on the part of the driver of the offending vehicle, the burden is on the part of the prosecution to prove the case beyond reasonable Crl.R.P.No.2297 of 2011 ..12.. doubt. In the case on hand, it has come out in evidence that the rider of the motor bike rode the motor bike without any driving license. The principles of contributory negligence is writ large. Under the circumstances, the standard of proof to determine negligence is on the higher side. On appreciation of the entire evidence, this Court is of the view that, the evidence let in by the prosecution is shabby and vague and the identity of the accused is not established beyond doubt. 16. In **Krishnankutty v. State of Kerala [1988 (1) KLT 401]** , this Court held in paragraph 3 of the judgment as follows:- _"3. ….....Moral conviction can be no proof for legal evidence. However gruesome a crime be, guilt can be found only on proof according to law. An important ingredient of an offence of this kind is the identity of the accused. Evidence should be available from the trip sheet of the vehicle, from the owner of the vehicle, if the owner himself is not the driver, and from several other circumstance. It does not take uncommon skill to unearth such material."_ Crl.R.P.No.2297 of 2011 **==> picture [28 x 8] intentionally omitted <==** 17. As indicated earlier, in this case the owner was not the driver of the vehicle. Hence it is the duty of the prosecution to produce trip sheet of the vehicle from the owner of the vehicle to prove the identity of the accused. Such course was not adopted by the prosecution. 18. Examination of the mark of wheels on the road is very useful in appreciation of evidence under Section 304A of IPC. In this case, no evidence was adduced by the prosecution to prove tyre mark on the road at the time of accident. Ext.P5 mahazar is silent in this respect. The trial court did not rely on Ext.P5 scene mahazar presumably for the reason that scene mahazar cannot be relied on to ascertain the place of occurrence. Taking into account of the entire facts and circumstances including the evidence of PW2, an injured witness in this case, it is clearly evident that the accident was not occurred as a result of the rash and negligent driving of the accused. Crl.R.P.No.2297 of 2011 **==> picture [28 x 8] intentionally omitted <==** PW2 testified before court that the accident occurred when the bike severed from the path and hit against the offending vehicle. Under the circumstances, naturally, a doubt arises as to whether the accident was occurred when the bike was turned towards the left from the right side. Further, the injured witness deposed in clear terms that he could not identify the driver of the offending vehicle. 19. Judged by the above standards, this Court is of the view that the trial court went wrong in convicting and sentencing the accused for the offences punishable under Sections 279, 337, 338 and 304A of IPC. The conviction and sentence imposed by the trial court as confirmed by the appellate court are liable to be set aside. In the result, the Crl.R.P. is allowed. The conviction and sentence imposed by the trial court as confirmed by the appellate court are set aside. The revision petitioner/accused stands acquitted for the offences Crl.R.P.No.2297 of 2011 **==> picture [28 x 8] intentionally omitted <==** punishable under Sections 279, 337, 338 and 304A of IPC. Cancelling the bail bond of the accused, this Court directs that he be set at liberty. Sd/- **N.ANIL KUMAR, JUDGE** skj