Palliyalil Sidique v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.D.RAJAN FRIDAY, THE 5TH DAY OF APRIL 2013/15TH CHAITHRA 1935 Crl.Rev.Pet.No. 535 of 2003 ( ) -------------------------------AGAINST THE JUDGMENT IN CRA 140/1999 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC) FAST TRACK COURT-I, MANJERI DATED 28-09-2002 AGAINST THE JUDGMENT IN CC 580/1994 of JUDICIAL FIRST CLASS MAGISTRATE COURT, TIRUR DATED 25-09-1999 REVISION PETITIONER(S)/(ACCUSED):: ------------------------------------------------------------------ PALLIYALIL SIDIQUE, S/O. KUNHEEDU, KUTTIPPURAM AMSOM, DESOM, TIRUR TALUK MALAPPURAM DISTRICT. BY SR.ADV.SRI.T.KRISHNAN UNNI ADV.SRI.M.G.VENUGOPALAN RESPONDENT/COMPLAINANT:: ------------------------------------------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R BY PUBLIC PROSECUTOR SMT.M.MADHUBEN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-04-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: AV ## **P.D.RAJAN, J.** ## **-----------------------------Crl.R.P.No.535 of 2003** ## **-----------------------------Dated this the 5[th] day of April, 2013** ## **ORDER** Revision petitioner was convicted by the Judicial First Class Magistrate Court, Tirur under Sections 279, 337 and 304 (A) IPC and sentenced to undergo rigorous imprisonment for different periods and also directed to pay fine under the aforesaid sections. The substantive sentences were ordered to run concurrently. An appeal filed was partly allowed by the Additional Sessions Judge, Manjeri, confirming the conviction passed by the trial court but, modified the sentence of rigorous imprisonment into simple imprisonment. Challenging the said judgments this criminal revision petition has been preferred. 2. The prosecution case is that on 05.08.1994, at about 1 a.m., the revision petitioner was driving a jeep, KEV.6050, in rash and negligent manner along the Kuttippuram-Valanchery public road. When the vehicle reached at Karinkapara, it collided against an autorickshaw No.KL-10A-6681, as a result, the passengers of the autorickshaw sustained serious injuries and one Suresh Babu, who was travelling in the autorickshaw succumbed to the injuries. On the basis of the information A.S.I. of police, Kuttippuram, registered a Crime No.75/94 under Sections 279, 337 and 304(A) of IPC. After completing Crl.R.P.No.535 of 2003 2 investigation, Circle Inspector of Police, Changaramkulam filed charge sheet before the Judicial First Class Magistrate, Tirur. 3. When accused appeared in the trial court, particulars of the offence read over to him to which he pleaded not guilty. The prosecution examined PWs.1 to 11 and admitted Exts.P1 to P11 in evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning under Section 313 Cr.P.C and he did not adduce any defence evidence. The trial court convicted the accused under Sections 279, 337 and 304(A) of IPC. Against that order, he preferred an appeal in the first appellate court where the findings of the trial court, was confirmed. 4. Heard both sides. The learned counsel Adv.Sri.Sivadas, appearing for the appellant contended that PWs.1 to 3 are the occurrence witnesses. Their evidence is inconsistent with regard to the occurrence. The rash and negligent driving of the revision petitioner was not deposed in the oral testimony of PWs.2 and 3. PW1 was travelling in the autorickshaw at the time of accident and he saw the accident in the light of a lorry, which was not disclosed to the police when he was questioned. The place of occurrence was neither identified in the scene plan nor in the mahazar. When rash and negligent driving was not proved by the prosecution with Crl.R.P.No.535 of 2003 3 reliable evidence, the accused is entitled to get the benefit of doubt. [He relied on a decision reported in **Munib Sao v. State of Bihar (Patna), [1997(3) Crimes 200)].]** 5. The learned Public Prosecutor Smt.M.Madhuben, strongly resisted the above contention and contended that PWs.1 to 3 saw the accident and no reason to disbelieve their oral testimony. The rash and negligent driving of the jeep was proved through the direct oral testimony of PW1 and no reasons are highlighted by the defence counsel to discredit the evidence of the occurrence witnesses. In the mahazar, place of occurrence is properly identified. There was sufficient light at the time of accident to identify the driver of the jeep. They saw the driver in the light of a lorry. Moreover, the revision petitioner approached PWs.1 and 2 for a settlement. That identity itself is sufficient to prove that the revision petitioner was the driver of the offending vehicle. 6. In the light of the above argument, the only question that arises for consideration is whether there is any illegality or irregularity in the finding of the court below? If so, the conviction and sentence passed by the trial court is sustainable in law ?. In order to attract rash and negligent driving, prosecution has to prove that the revision petitioner had driven a vehicle on a public way in a manner so rashly or negligently, so as to endanger Crl.R.P.No.535 of 2003 4 human life or likely to cause hurt to any person. In this context, I have considered the oral testimony of PW1, who was an occurrence witness in this case. The oral testimony of PW1 shows that on 05.08.1994 at 12 O' Clock in the night, the accident occurred at Paiganoor, while he was travelling in an autorickshaw, the offending vehicle came from the opposite side at high speed. On seeing this, his vehicle stopped on the side of the road. The accident was only due to the rash and negligent driving of the jeep and the driver suddenly escaped from the place of occurrence. He gave Ext.P1 statement to the police. In cross-examination, he admitted that immediately he was removed to hospital and on the next day at 8 O'clock, he went to the police station and gave the statement, after that, he was never questioned by the police. 7. According to PW2, the autorickshaw was driven at a slow speed very cautiously by the side of the road. According to PW1, the offending vehicle, jeep came through the right side and subsequently added left side and hit against the autorickshaw. But PW2 stated that the jeep came through the left side and hit against the autorickshaw. PW3, who was the driver of the autorickshaw, stated that he was driving the vehicle very slowly and the autorickshaw stopped at the side of the road and the jeep came Crl.R.P.No.535 of 2003 5 through the wrong side and collided. While analysing the oral testimony of PWs.1 to 3, it is clear that their oral testimonies are inconsistent with regard to the occurrence. After the accident the jeep stopped at a long distance and the passengers in that vehicle ran away, but PW3 fell under the autorickshaw and people came there took him from under the autorickshaw, removed him to hospital. Only after three days, he came to the place of occurrence. According to him, the jeep came through the right side of the autorickshaw. Thus, these three versions of oral testimony of PWs.1 to 3, are inconsistent and not sufficient to prove the rashness and negligence of the jeep. 8. PW1 omitted to say about the identity of the accused in his statement given to the police. This created a doubt in the credibility of PW1 and the omission which was not clarified by asking question in re-examination. He saw the jeep driver in the light of a lorry when he flee from the place of occurrence. Such a statement regarding identity of the driver was not given to the police when he gave Ext.P1 statement. He disclosed this fact for the first time before the Court. On the next day, when he visited the police station, saw accused there, but such a statement was not found in Ext.P1. This omission amounts to a contradiction and this law was settled by the Apex Court in **Dahyabhai** Crl.R.P.No.535 of 2003 6 **Chhaganbhai Thakkar v. State of Gujarat (AIR 1964 SC** ” **1563)** held that “Omission amounting to contradiction . It is admitted fact that immediately after the accident the driver of the jeep ran away from the jeep in the night from the place of occurrence. Therefore strong and convincing evidence is necessary to prove the identity of the driver of the offending vehicle. PW3 stated that the revision petitioner and another person visited his house and demanded for a compromise. At that time, he identified the driver of the vehicle. The only evidence available for the identity was that of PW9 who deposed that he entrusted the key of the jeep to the revision petitioner. But he is not sure that petitioner was the driver at the time of accident. But he is not an eye witness and trip sheet and other documents were not produced in the trial court to prove that point. The incident was in the night and they saw the accused in the light of another lorry plying on the road is also not believable in the absence of independent evidence. Therefore, the identity of driver of the vehicle is important since the incident was occurred in this night. 9. The Ext.P2 inquest was attested by PW4. PW5 was also present at the time of preparing Ext.P2 inquest. PW6 attested Ext.P3 mahazar. According to Ext.P3, the place of occurrence was southern road margin and there was a distance of 92 centimetres Crl.R.P.No.535 of 2003 7 from the southern tar end at the place of occurrence and the tar portion road has a width of 5.50 metres. Both the vehicles were found at the south and north side of the road. The postmortem examination of the deceased was conducted by PW7 and Ext.P4 is the postmortem certificate. There was no dispute with regard to the cause of death. The postmortem report shows that the death was because of the hemorrhage and stroke due to the extensive injury sustained by him. 10. The Sub Inspector of police prepared Ext.P2, inquest report, Ext.P3 mahazar and he questioned the witnesses. PW10 inspected the vehicles involved in the accident and reported no mechanical defect to both the vehicles. Ext.P5 and P6 are the reports of AMVI. The investigating officer Sri.N.K.Balachandran was not examined in this case. From the aforesaid evidence of the witnesses, what is evident in this case is that the prosecution had not discharged its initial burden in proving the rash and negligent driving. 11. Generally a person driving the vehicle on a public road is expected to drive a vehicle in control of the vehicle in such manner to enable him to prevent hitting against other vehicles or pedestrians. Culpable negligence or failure to exercise reasonable care is a matter of evidence. To prove the rashness and negligence 8 Crl.R.P.No.535 of 2003 the principal of “Res ipsa loquitur” can be applied in a case. Honourable Supreme Court, in **State of Karnataka v. Sathish [1998(8)SCC 493],** held that merely because of vehicle in question was being driven at a “high speed” does not bespeak of either “negligence” or “rashness” by itself. “High speed” is a relative term. It was for the prosecution to bring on record materials to establish as to what it meant by “high speed” in the facts and circumstances of the case. In the absence of any material on record no presumption of “rashness” or “negligence” could be drawn by invoking the maxim “res ipsa loquitur”. Here the accident was occurred on the national highway where the vehicles are plying through the road at a particular speed. Rashness means doing of an act without due consideration and negligence means want of proper care. The person doing the rash act being conscious of the consequences but a negligent act on the other hand refers to an act without sufficient precautions. The word 'rash' or 'negligent' used in this Section connotes a criminal act of negligence or rashness. According to Section 80 IPC “nothing is an offence which is done by accident or misfortune and without any criminal knowledge or intention in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.” In the absence of such care and caution in doing an act is made Crl.R.P.No.535 of 2003 9 punishable under this Section. It is the degree of negligence really settle whether an act would measure 'rash' or 'negligent' defined under the Section. PW1 who is the injured, deposed that the autorickshaw was at a low speed and the jeep was at high speed. The evidence of PWs.2 and 3 also not consistent with the rashness or negligence of the vehicle. From the evidence of these witnesses, I am of the view that there is no consistent version regarding the rashness or negligence. 12. The Sub Inspector prepared a site plan and scene mahazar but the exact place of the occurrence was not stated by none of the occurrence witnesses. Apex Court in **Jit Singh v.** ## **State of Punjab [1976 SC 1421]** held thus: _“It is argued that presumably this site – plan also was prepared by the investigating officer in accordance with the various situations pointed out to him by the witness. We are afraid it is not permissible to use the site-plan (ext.P14) in the manner suggested by the Counsel. The notes in question on this site-plan were statements recorded by the police officer in the course of investigation, and were hit by Sec.162 of the Code of Criminal Procedure. These notes could be used only for the purposes of contradicting the prosecution witnesses concerned in accordance with the provisions of Sec.145 Evidence Act, and for no other purpose.”_ The Sub Inspector, who is wisely not an eye witness to the incident has prepared the site-plan. He could have prepared it only after taking statement of witnesses. The marking of place of occurrence on the site-plan is really bringing on record the conclusion of the Crl.R.P.No.535 of 2003 10 Sub Inspector on the basis of statements made by the witnesses to him. The site-plan would admissible so as to indicate that the investigating officer himself had seen the spot. It is the primary responsibility of a prosecution to prove the place of occurrence. When they failed to point out the place of occurrence the revision petitioner is entitled to get the benefit of doubt. 13. The investigating officer was not examined in this case. The Circle Inspector of Police, Changaramkulam conducted investigation in this case and laid charge in the magistrate court but he was not examined in this case. It is settled that non examination of investigating officer will not sufficient to throw the prosecution case in toto when prosecution has established its case with other evidence . In **Hirianna Shetty v. State of Mysore [1972 CRLJ 976 (977)]** Karnataka High Court held that “non examination of the investigating officer is a serious infirmity resulting in prejudice to the accused.” If investigating officer is not examined accused were deprived of the opportunity to effective cross-examination of the prosecution witness and bring out contradiction in their statement before the police. In such situation prejudice must depend up on the facts of the case and there is no straight jacket formula. Therefore, the revision petitioner is entitled to get that benefit of doubt. In the decision **Krishnankutty v.** Crl.R.P.No.535 of 2003 11 ## **State of Kerala [1988(1) KLT 401]** , this Court held that : _“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, form the owner of the vehicle, if the owner himself is not the driver, and from several other circumstances. It does not take uncommon skill to unearth such material.”_ In the light of the above settled law, I am of the opinion that the conviction and sentence passed by the trial court under Sections 279, 337 & 304 IPC are to be set aside. 14. In the result, the conviction and sentence passed by the trail court under Sections 279, 337 and 304(A) of IPC are set aside and the revision petitioner is acquitted there under and set at liberty. The revision petition is allowed as above. ## P.D.RAJAN, JUDGE AV