Pappachan, S/o Pathrose v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 8TH DAY OF APRIL 2013/18TH CHAITHRA 1935** **Crl.Rev.Pet.No. 600 of 2003 ( ) --------------------------------** **AGAINST THE JUDGMENT IN CRA 265/2002 of ADDL.SESSIONS COURT, ALAPPUZHA. DATED 20-02-2002** **AGAINST THE JUDGMENT IN CC 774/1998 of J.M.F.C.-II, CHERTHALA DATED 29-08-2002** **-------------** **REVISION PETITIONER/APPELLANT/ACCUSED::** **---------------------------------------** **PAPPACHAN, S/O. PATHROSE, PULITHARA VEEDU, WARD NO.8, AROOR PANCHAYATH AROOR VILLAGE, CHERTHALA.** **BY ADV. SRI.C.K.SAJEEV** **RESPONDENT/RESPONDENT/COMPLAINANT AND STATE:: ---------------------------------------------** **STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA** **BY PUBLIC PROSECUTOR SMT.M.MADHUBEN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08-04-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **vk** ## **P.D. RAJAN, J.** ------------------------------------------Crl. R.P.No.600 of 2003 ---------------------------------------------Dated this the 8[th] day of April, 2013 ## **ORDER** The revision petitioner was convicted by the trial court U/Ss.280, 337 and 304A of IPC and sentenced to undergo simple imprisonment for different periods under the above Sections. Sentences were ordered to run concurrently. An appeal preferred was dismissed by the Additional Sessions Judge confirming the conviction passed by the trial court. Challenging the said judgments, the accused preferred this petition. 2. The prosecution case was that on 10.5.1998 at about 5.30 p.m. the revision petitioner being Srank of a private boat namely 'Sneha' navigated through the Arookkutty lake from south to north in a rash and negligent manner at high speed. When it reached at the 6[th] pillar from the east of AroorArookkutty bridge hit against a country boat anchored on the south-eastern side of the said pillar in which the deceased and PW2 were sitting and as a result PW2 was thrown out of the 2 Crl. R.P.No.600/03 country boat and the deceased was crushed in between the country boat and the pillar and sustained serious injuries. Immediately he was removed to the hospital, on the way he succumbed to the injuries. On the basis of information, Poochakkal Police registered Crime No.78/98 and after investigation, C.I. of Police, Cherthala laid charge in the Judicial First Class Magistrate-II, Cherthala. 3. In the trial court, particulars of offence were read over to the accused to which he pleaded not guilty. Hence, prosecution examined PWs 1 to 15 and marked Exts.P1 to P10 in evidence. The incriminating circumstances brought out in evidence were denied by the accused, while questioning under Section 313 Cr.P.C. After sifting and weighing the evidence on record, the trial court convicted the accused under Sections 280, 337 and 304A IPC and sentenced to thereunder. Aggrieved by that, he preferred the above appeal before the Additional Sessions Judge, Alappuzha. 4. Heard both sides. The learned counsel Sri. C.K. Sajeev, appearing for the revision petitioner contended that the rash and negligent navigation of the revision petitioner was Crl. R.P.No.600/03 3 not proved in the trial court. The oral testimony of PW2 and PW3 are not sufficient to attract the offence under Section 280 IPC read with Section 304A. The evidence of PW5 is also not believable. When there is rash and negligent navigation, the impact of the injury may be different. The back side of the boat was hit on the country boat and the deceased sustained injury. That was happened because the boat was moved a little due to the waves and hit on the back side of the country boat and the deceased thrown out of the boat and crushed against the pillar. When there is no rash and negligent navigation, the revision petitioner is entitled to get the benefit of doubt. 5. The learned Public Prosecutor strongly resisted the above contention and contended that the oral testimony of PW2, 3 and 5 are sufficient to prove the occurrence. PW3 was waiting at the place of occurrence in another boat and saw the occurrence. PW3 and 5 also present there. Their presence at the place of occurrence was not disputed by the revision petitioner. When direct oral testimony is available to prove the alleged rash and negligent act of the revision petitioner, no Crl. R.P.No.600/03 4 circumstances are brought before me to discard that evidence. Therefore, when prosecution proved the rash and negligent navigation with convincing evidence, the finding entered by the court is only to be confirmed. 6. In the light of the above argument, the question that arises for consideration is whether there is any illegality or irregularity in the findings of the court below? If so, the conviction and sentence passed by the trial court U/Ss.280, 337 & 304A IPC are sustainable in law? In order to attract the offence under Section 280 IPC, the prosecution has to prove that the revision petitioner navigated any vessel in a manner so rashly and negligently so as to endanger human life or to be likely to cause hurt or injury to another person. In order to prove the rash or negligent navigation of the vessel, prosecution examined PW2 as an occurrence witness. The evidence of PW2 shows that on 10.5.1998 at 5.30 p.m., the incident was occurred under the Aroor -Arookkutty bridge. He was sitting along with deceased Peethambaran in the country boat. The deceased was sitting opposite side in the boat. While so, a boat, namely 'Sneha' came there at high speed Crl. R.P.No.600/03 5 navigated by the revision petitioner and the left side portion of that boat hit on the country boat as a result, the deceased thrown away and crushed between the pillar of the bridge and the boat and sustained serious injuries. He was removed to hospital but on the way, he succumbed to the injuries. The revision petitioner was navigated the boat at the time of that incident. This direct evidence of PW2 is believable. Even though he was cross examined by the defence counsel, nothing has been brought out to discredit his evidence. PW3 and 5 also supported the evidence of PW2. Therefore, these witnesses are sufficient to prove the rash and negligent navigation of the vessel and admissible. 7. In this context, I have considered what is the cause for the death of Peethambaran. Ext.P4 is the postmortem certificate issued by PW6. According to PW6, on 11.9.1998, he conducted postmortem examination of deceased Peethambaran, while he was working as Civil Surgeon, PHC Thuravoor. After postmortem examination, he issued Ext.P4 certificate, in which it is stated that the death was due to the crush injuries to chest and abdomen. PW7 is the doctor, who 6 Crl. R.P.No.600/03 examined PW2 and issued Ext.P5 wound certificate. In the wound certificate, PW7 noticed injuries on the right side of chest. PW8 deposed that there was no mechanical defect to the boat. He was the Inspector of Boats at the time of incident and issued Ext.P6 certificate. Ext.P7 is the inquest report. Analysing the wound certificate, postmortem report and the opinion of PW6 and 7, I am of the opinion that the death was due to the injuries sustained in the incident and revision petitioner was rash and negligent for the incident. 8. There was no dispute with regard to the identity of the navigator of the boat and no single question was asked about disputing the identity. PW13 is the owner of the boat. PW1 who possessed the boat did not know the navigator of the boat. PW11 and 13 supported the revision petitioner, but their evidence is not sufficient in the light of the direct evidence of PW2, 3 and 5. PW2 categorically stated that after the incident, the Srank put his head out of the boat. At that time, he identified him. PW2 is the neighbour of PW3 and PW5 and therefore, their evidence itself is sufficient to reach a conclusion that the revision petitioner was navigating 7 Crl. R.P.No.600/03 the boat as a Srank at the time of incident. 9. The crime was registered by PW9 on the basis of information given by PW2. Ext.P9 is the FIR in Crime No.78/98 of Poochakkal Police Station. Immediately he arrived at the place of occurrence and prepared Ext.P1 mahazar, which was supported by PW1. Again, he reached the hospital and prepared Ext.P7 inquest report, the witness present there attested the inquest report. No lapses are highlighted by the defence counsel, when PW9 was cross examined. PW15 completed the investigation and laid charge. 10. Analyzing the oral and documentary evidence of these witnesses, I am of opinion that the trial court considered the relevant facts and convicted the accused. In _**Rugmin**_ i v. _**State of Kerala**_ [1986 KLT 1356] held that “Section 304A is the penalizing provision for causing death by doing any rash or negligent act which does not amount to culpable homicide. The act which causes death need not necessarily be a rash act, it is enough that death is caused by the negligent act of the accused. That act must be the proximate cause, without any other supervening act or intervention. It must be the causa Crl. R.P.No.600/03 8 causana, and it is not enough that it may have been the causa sine qua non.” Accepting the above principle, I am of the view that the deceased sustained injuries due to the negligent act of the revision petitioner. The trial court convicted the revision petitioner and I find no illegality or irregularity in that findings. The learned counsel appearing for the revision petitioner submitted that the revision petitioner is now aged more than 80 years and he prays for leniency in sentence. 11. The Apex Court in _**Madanlal Ramachandra Daga**_ v. _**State of Maharashtra**_ [AIR 1968 SC 1267] held that if the court thinks that a leniency can be shown on facts of case, which may impose lighter sentence. Hence, considering the age of the revision petitioner, the sentence passed against him is to be modified as follows. a) The revision petitioner is sentenced to undergo simple imprisonment for 15 days and to pay a fine of Rs.1000/-, in default to undergo simple imprisonment for one month under Section 280 IPC. b) He is also sentenced to undergo simple imprisonment for 15 days and to pay a fine of Rs.500/-, in Crl. R.P.No.600/03 9 default to undergo simple imprisonment for 15 days under Section 337 IPC. c) Simple imprisonment of three months for the offence under Section 304A IPC ordered by the trial court is confirmed. d) The sentences shall run concurrently. The trial court is directed to take steps to issue warrant for execution of the sentence within seven days from the date of receipt of a certified copy of this judgment. The revision petition is partly allowed. **P.D. RAJAN, JUDGE.** acd Crl. R.P.No.600/03 10 Crl. R.P.No.600/03 11