Prabalakumar v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 **Crl.Rev.Pet.No. 1380 of 2003(C)** **-------------------------------** SC.200/1999 of ADDL.ASSISTANT SESSIONS COURT, KOTTAYAM .................... REVISION PETITIONER: PW6 IN SC 200/99 ------------------------------------- PRABALAKUMAR, AGED 43 YEARS, S/O.LATE SRI.NARAYANAN NAIR, PARAYILPUTHEN VEEDU, KUDAMALOOR, KOTTAYAM - 17. BY ADV. SRI.MOHAN JACOB GEORGE SRI.S.RAJEEV RESPONDENTS: COMPLAINANT/ACCUSED 2 TO 5 ----------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, (CRIME NO.454 OF 1995 OF KOTTAYAM WEST POLICE STATION). 2. A1.ROSH BABU, S/O.RADHAKRISHNAN, KODACKATTU VEEDU, KUDAMALOOR KARA, AYMANAM VILLAGE. 3. A2. SATHEESH KUMAR, S/O.SOMAN NAIR, SATHEESH BHAVAN, KUDAMALOOR KARA, AYMANAM VILLAGE. 4. A3. BINU, S/O.LAKSHMANAN, BIN HOUSE, KARIKULANGARA BHAGOM, KUDAMALOOR KARA, AYMANAM VILLAGE. 5. A4. SURESH @ BABU, S/O.PARAMESWARAN NAIR ANUPAMA VEEDU, KARIKULANGARA BHAGOM, KUDAMALOOR KARA, AYMANAM VILLAGE. ADV. SRI.SUNIL CYRIAC FOR R2 & R5 BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **THOMAS P. JOSEPH, J. -------------------------------------Crl.R.P. No.1380 of 2003 -------------------------------------Dated this the 16[th] day of October, 2008.** ## **ORDER** Respondents 2 to 5/A1 to A4 faced trial in the court of learned Assistant Sessions Judge, Kottayam for offences punishable under Sections 304, 202 and 427 read with Section 34 of the Indian Penal Code (for short, 'the Code') and Section 198 of the Motor Vehicles Act. Originally the case was registered against respondents 2 to 5 and PW2 for offence punishable under Sections 279 and 337 of the Code and after the victim succumbed to the injuries, Section 304 A of the Code was also incorporated. In the subsequent investigation, offences punishable under Sections 279 and 304 A of the Code were deleted and Section 304 of the Code was incorporated. Case was committed for trial as per order in C.P.No.5 of 1997 and the case was taken on file as S.C.No.129 of 1997 of Sessions Court, Kottayam. At that stage, O.P.No.16679 of 1997 was filed in this Court seeking further investigation. In the light of the direction in the order passed by this Court, a special team for investigation was constituted. That team filed further final report before learned magistrate. At that time, fifth accused was granted pardon and his statement (Ext.P2) was recorded by the learned magistrate under Section 164 of the Code of Criminal Procedure. Thereafter the case was committed for trial as **Crl.R.P.No.1380/2003** 2 per order in C.P.No.7 of 1999. Thus the case came before the Sessions Court. Learned Sessions Judge made over the case for trial to the learned Assistant Sessions Judge. That is how the case came before that court. 2. Prosecution examined PWs 1 to 28 and marked Exts.P1 to P19 and Exts.D1 to D4. Learned Additional Assistant Sessions Judge found that charge against respondents 2 to 5 are not proved and acquitted them under Section 235 of the Code of Criminal Procedure. State has not preferred an appeal. PW6, brother of the deceased feeling aggrieved has come to this Court by filing revision under Sections 397 and 401 of the Code of Criminal Procedure. 3. Heard both sides. Perused the records. 4. Counsel for revision petitioner contended that the learned Additional Assistant Sessions Judge has proceeded on a wrong assumption that the learned magistrate (PW15) granted pardon to PW2 after the case was committed to the Sessions Court for trial and therefore, grant of pardon is illegal as held by the Hon’ble Supreme Court **in Devindran v. State of Tamil Nadu (1998 Crl.L.J. 814)** . According to the learned counsel, grant of pardon to PW2 is legal and proper and the very approach made by learned Additional Assistant Sessions Judge is not correct. Counsel for respondents 2 to 5 supported the judgment of learned Additional Assistant Sessions Judge. **Crl.R.P.No.1380/2003** 3 5. Case is that on 23.10.1995 at about 10.15 p.m. second respondent/A1 while going along the road with respondents 3 to 5 and PW2, changed the gear of a jeep that was parked on the road side, that jeep rolled down the gradient and hit the deceased resulting in his death. Further allegation is that second respondent has thus made unauthorized use of the motor vehicle thereby committing the offence under Section 198 of the Act. It is also alleged that respondents 2 to 5 failed to inform the police about the true facts and thereby committed offence punishable under Section 202 of the Code. Charge under Section 427 of the Code is incorporated for causing damage to the compound wall of PW1 who gave first information. 6. PW1 is not a witness to the alleged incident. He learned about the incident came to the scene of occurrence and found his compound wall in a collapsed state and gave first information regarding the incident. PW5 claimed that he had seen respondents 3 and 4 immediately before the incident. He however, denied seeing the second respondent along with respondents 3 and 4 at that time. PW10 was examined to say that respondents 2 to 5 had been to his toddy shop and consumed toddy on the evening of the day of incident. He stated so. PW11 claimed that he had seen respondents 2 and 5 talking to the deceased some time immediately before the incident. 7. PW2 is the star witness for the prosecution. He was originally the fifth accused in the case and after he was granted pardon by learned magistrate under Section 306 of the Code of Criminal Procedure, he was cited as prosecution witness. Ext.P2 is the copy of his statement recorded by learned **Crl.R.P.No.1380/2003** 4 magistrate under Section 164 of the Code of Criminal Procedure. PW2 stated that himself and respondent No.4 were going together (before the incident) and while so, met respondents 2, 3 and 5, they all went to the toddy shop of PW10 and after taking toddy, returned. On the way they found the deceased. Deceased and fifth respondent were talking in front of the house of PW1. PW2 and fourth respondent went towards Kottakkadavu area leaving respondents 2 and 3. Fifth respondent and deceased were seen walking up the gradient. PW2 and fourth respondent went beyond the jeep which was parked on the side of the road in front of the house of PW1. Second respondent commented as to who had left the jeep on the side of the road. PW2 found the second respondent going backwards. What then he found is the jeep rolling down the gradient. Since PW2 did not say anything implicating the second respondent, learned Public Prosecutor questioned him with reference to his statement as per Ext.P2, whether he had told learned magistrate that when he looked back, he found second respondent doing something introducing his hands into the jeep. He answered in the affirmative and stated that it is true. In cross-examination on behalf of respondents 2 to 4, he stated that it was darkness where the jeep was parked, he cannot say about the details of the jeep or, who were standing, where. He was not able to answer the suggestion that the driver of the jeep had reversed the jeep and it hit the deceased. Obviously in the light of that statement, an attempt was made to correct the statement of PW2 in reexamination. He stated that he had not seen anybody in the jeep. PW15 recorded the statement of PW2 (Ext.P2) and granted pardon. **Crl.R.P.No.1380/2003** 5 8. Learned Additional Assistant Sessions Judge observed that grant of pardon to PW2 was after the case was committed to the court of Sessions and hence the order granting pardon is illegal since the magistrate had no jurisdiction to deal with the matter after committal of the case. It is however, stated by counsel on both sides that after the case was originally committed, there was further investigation by the special team based on which further report was submitted before learned magistrate, grant of pardon to PW2 was thereafter and then the case was committed as per order in C.P.No.7 of 1999. Therefore, there is nothing illegal in the grant of pardon to PW2. 9. Though PW2 initially stated that he had told PW15 in Ext.P2 about the second respondent doing something in the jeep introducing his hand, he claimed that it was total darkness at the place of incident and hence, he does not know who all were standing, where. Though law does not require corroboration for the evidence of accomplice, it is a rule of prudence that corroboration in material parts is required for his evidence. Going by the evidence of PWs 2 and 15, it would appear that even the statement of PW2 before PW15 was under pressure to save himself in that, he stated that before Ext.P2, he was called to the office of the investigation team at Ernakulam for about 5-6 months and even in Ext.P2, he told PW15 that though he had not committed any crime, he was being harassed. In cross-examination on behalf of respondents 2 to 5, he stated that Crime Branch police was harassing him and that had PW15 asked about that, he would have confessed that also. PW15 stated that had PW2 told him about that harassment, he would not have recorded the confession **Crl.R.P.No.1380/2003** 6 statement of PW2 since that appeared to be not a voluntary statement. Leaving apart the violation of Rule 70 of the Criminal Rules of Practice, this much is the version of PWs 2 and 15 which is sufficient to think that PW2 was under some pressure to make statement and save himself from harassment. It is also important to remember that PW2 was trying to justify before learned Additional Assistant Sessions Judge since the statement contained in Ext.P2. In these circumstances, there is nothing illegal or irregular in learned Additional Assistant Sessions Judge observing that in the absence of evidence corroborating the version of PW2, conviction cannot be sustained. 10. Counsel for revision petitioner then contended that at any rate, offence under Section 304A of the Code is made out and that the said offence being a minor offence when compared to 304 of the Code, second respondent should have been convicted for offence under Section 304A of the Code. He contended that at any rate, offence punishable under Section 198 of the Act is made out. 11. This contention cannot stand for two reasons:- first, offence under Section 304A is not a minor offence of offence under Section 304 of the Code since both offences operate in different fields, basis for offence under Section 304A being rashness or negligence and that of the offence under Section 304 of the Code being intention or knowledge to cause death of the victim. Therefore, in the absence of a specific charge under Section 304 A of the Code, a conviction is not justified. Secondly, I concurred with the view taken by the learned Additional Assistant Sessions Judge that there is no convincing evidence **Crl.R.P.No.1380/2003** 7 to prove the involvement of respondents 2 to 5 in the matter. 12. Interference in revision against judgment of acquittal is called for only when there is gross injustice resulting from violation of fundamental principle of law or procedure and when the view taken by the trial court is palpably wrong. None of those things is present in this case. Revision Petition fails. It is dismissed. **THOMAS P.JOSEPH, JUDGE.** **cks** **Crl.R.P.No.1380/2003** 8 ## **Thomas P.Joseph, J.** **Crl.R.P.No.1380 of 2003** ## **ORDER** **16[th] October, 2008**