Pappachan v. State of Kerala and C.I. of Police, Mavelikkara

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 28TH DAY OF SEPTEMBER 2016/6TH ASWINA, 1938** **Crl.Rev.Pet.No. 3195 of 2004 (D) --------------------------------AGAINST THE JUDGMENT IN CRL.APPEAL NO. 85/1999 of ADDITIONAL SESSSIONS COURT-I,MAVELIKKARA DATED 13-07-2004** **AGAINST THE JUDGMENT IN CC 230/1993 of JUDICIAL FIRST CLASS MAGISTRATE, KAYAMKULAM DATED 23.02.1999** **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **----------------------------------------PAPPACHAN, S/O. KUTTY, THAYYIL VEEDU, KATTANAM MURI, KATTANAM VILLAGE, MAVELIKKARA.** **BY ADVS.SRI.K.SASIKUMAR SRI.RINNY STEPHEN** **RESPONDENT(S)/RESPONDENTS/COMPLAINANT::** **---------------------------------------** **1. STATE OF KERALA,** **REP. BY CHIEF SECRETARY, THIRUVANANTHAPURAM, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **2. C.I. OF POLICE, MAVELIKKARA.** **BY PUBLIC PROSECUTOR SRI. D. CHANDRASENAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.3195 of 2004 ---------------------------------------------Dated this the 28[th] day of September, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.85/1999 of additional Sessions Judge-I, Mavelikara. He was accused in C.C. No.230/1992 of the Judicial First Class Magistrate Court, Kayamkulam u/s.279, 337, 338 and 304A IPC. After trial, the learned Magistrate convicted the accused u/s.279 and 304A IPC and sentenced to rigorous imprisonment for six months u/s.279 and one year u/s.304A IPC. He was found not guilty u/s.338 IPC and acquitted thereunder. Against that, he preferred the above criminal appeal before Sessions Court, Kayamkulam, where the the learned Sessions Judge dismissed the appeal. Being aggrieved by that, he preferred this revision petition. Crl.R.P.No.3195/2004 2 2. The charge against the accused is that on 10-41993 at 3.45 p.m., the accused had driven a lorry KRA 8343 in a rash and negligent manner endangering human life through Kattanam- Mambisseri mukku road and when it reached at Mappallikutty hospital, the vehicle hit a scooter UGY -7304, as a result, the passengers in the scooter fell down and one of the passengers sustained serious injury and succumbed to the injury at Government Hospital, Mappallikutty. Vallikunnam Police registered a crime and after completing investigation, laid charge in the trial Court. To prove the offence, the prosecution examined PW1 to PW14 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. The learned Magistrate convicted him. 3. Apex Court in **S.N. Hussain** v. **State of Andhra Pradesh** [1972 (3) SCC 18] held as follows: Crl.R.P.No.3195/2004 3 “(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. (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. In a case of accident on a level railway crossing where the gate is open and there is no train scheduled to pass at the time, the driver would be justified in driving his vehicle through the level crossing. Passenger trains have a time schedule and if a train is expected to come at about the time the appellant reached the level crossing, a regular driver of motor vehicles on that route may, perhaps, be found negligent in crossing the railway track, if any mischance, the gate was open. But in the case where a goods train not scheduled to pass the level crossing, just about the time the bus reached the spot and an accident takes place, the appellant cannot be held guilty of criminal negligence because he may not have known that a goods train would be coming at that moment. In such circumstances the appellant will not be guilty merely because he did not stop when the road signal wanted him to stop. Such a case will be a case of unavoidable accident because of the negligence of the gateman in keeping the gate open and inviting the vehicles to pass.” 4. The main contention advanced by the learned counsel appearing for the revision petitioner is that the lorry Crl.R.P.No.3195/2004 4 was driven by the revision petitioner at 50kms speed and the scooter was plying at 40kms speed. The speed itself is not a criteria for fastening the criminal liability upon the revision petitioner. The learned counsel relied the decision reported in _**Mohanthlal Saha**_ v. _**State of West Benga**_ l [1968 ACJ 124] and _**Suleman Rahiman Mulani and another**_ v. _**State of Maharashtra**_ [AIR 1968 SC 829]. 5. The learned Public Prosecutor contended that PW2 and PW3 identified the driver of the lorry. In view of the above argument, I have referred the Apex Court decision in _Suleman Rahiman Mulani 's case (supra),_ in which it is held that _there must be direct nexus between the death of a person and the rash or negligent act of the accused._ 6. In the light of the above settled principle, I have gone through the oral evidence of PW1. His deposed that he saw the accident near Mepallykutty Hospital at KattanamMambisseri mukku public road. While he was proceeding through the road, two- three persons were found lying there Crl.R.P.No.3195/2004 5 with injury, immediately, he removed them to the hospital and gave Ext.P1 statement to the Police. He also deposed that the deceased Vijayan, PW2 amd PW3 were travelling in a scooter, at that time, the lorry hit against their scooter. Subsequently, this witness was declared as hostile. PW2 is the injured in the above incident. His evidence shows that on 10.4.1993 at 3.45 p.m., he was riding a scooter along the Kattanam-Mambisseri mukku public road. When he reached at the place of occurrence, the offending vehicle was proceeding from the opposite direction at a high speed without sounding horn. On seeing the vehicle, he stopped the scooter on the western side of the road. At that time, the lorry came and hit against the scooter and three persons travelling in the scooter fell down and the wheel of the lorry run over the head of his brother-in-law and he sustained serious injury. Immediately, they were removed to Government Hospital, Mavelikkara. He identified the driver of the lorry. During cross examination, he admitted that the Crl.R.P.No.3195/2004 6 lorry was plying at 40kms speed. He has valid licence. This evidence of PW2 is contradicting with oral evidence of PW3 and PW4. 7. PW3 deposed that while PW2 was riding the scooter, the lorry hit against the scooter, as a result, the accident had occurred. PW4 and P5 also deposed that PW2 was riding the scooter along the road. Ext.P3 is the scene mahazar prepared by the investigating officer. As per Ext.P3, the road has width of 4 metres. The incident occurred 35 cm east from the western tar end. The scooter was plying from south to north. Western road margin has 2 ½ meters width and eastern road margin has 1 ½ meters width. There is a slight curve near the place of occurrence. Therefore, it is clear that the speed stated by the witness itself is not a criteria for proving the rash and negligent driving. The inconsistent versions with regard to the occurrence create a doubt in the credibility of the prosecution case. It is the primary duty of the prosecution to prove the rash act or Crl.R.P.No.3195/2004 7 negligent act. The direct nexus between the death of a person and rash or negligent act of the accused has to be proved by cogent and convincing evidence. When inconsistent version was deposed by the occurrence witness, I am of the opinion that, that evidence itself is not sufficient to prove the rash and negligent act of the accused. If the direct nexus between the death of the person and rash or negligent act is not proved, the accused is entitled to get the benefit of doubt. In the circumstance, the conviction and sentenced passed by the trial Court u/s.279 and 304A IPC are set aside and the accused is acquitted and set at liberty. Crl.R.P. is allowed. ## **P.D. RAJAN, JUDGE.** acd