Pradeep Kumar v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY, THE 04TH DAY OF JULY 2018 / 13TH ASHADHA, 1940** ## **CRL.A.No. 1530 of 2005** **AGAINST THE JUDGMENT IN SC 309/2003 of ADDITIONAL SESSIONS COURT (ADHOC)-II, MANJERI DATED 16-08-2005** **AGAINST THE ORDER IN CP 42/2003 of JUDICIAL MAGISTRATE OF FIRST CLASS, MALAPPURAM** ## **APPELLANT/ACCUSED:** **PRADEEP KUMAR, S/O.PURUSHOTHAMAN, KUNNAMGERI HOUSE, KOLAYAD P.O., KANNUR DISTRICT.** **BY ADV. SRI.P.V.SURENDRANATH (SR.) ADV.SYAMANTHAK B.S** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SRI.D.CHANDRASENAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.07.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.A.No.1530 of 2005 2 ## **MARY JOSEPH, J** **--------------------------------------------------Crl.A.No.1530 of 2005 --------------------------------------------------Dated this the 4[th] day of July, 2018** ## **J UD G M E N T** This appeal is originated from the judgment dated 16.8.2005 of the Court of Sessions, Manjeri in S.C.No.309/2003 (fort short 'the court below'). In the case referred, the appellant, who was the accused was charge sheeted by the Kottakkal Police for the offence punishable under Section 304 of the Indian Penal Code (for short 'the Code'). In the case the court below had framed a charge against the accused for an offence under Section 304 IPC, he was tried for that offence, found guilty under Sections 304(A) and 279 IPC and convicted and sentenced to undergo punishment. The punishment imposed was rigorous imprisonment for six months for the offence under Section 279 IPC and rigorous imprisonment for two years for the offence under Section 304(A) IPC. Aggrieved accused is now before this Court in the appeal on hand. The facts of the prosecution case needs to be summarised in the context:- On 24.7.2002 at 5.30 pm the appellant was driving a bus Crl.A.No.1530 of 2005 3 bearing registration No.KL-13/C7097 through ThrissurKozhikode NH 17 from Changuvetti side to Edarikkode at an excessive speed in a rash and negligent manner and thereby knocked a boy named Arun Sethu, who was pedalling a bicycle through the road against the bus. The boy sustained fatal injuries in the incident and succumbed to those after he was brought to the hospital. The First Information Statement was lodged by a man who was running a grocery shop very near to the place of occurrence. On the basis of the First Information Statement, Crime No.336/2002 was registered by the Sub Inspector of Police, Kottakkal for the offence under Section 304 IPC. The preliminary investigation in the case was conducted by him and it was continued by the Circle Inspector of Police, Tirur. The accused was arrested and produced before the Judicial First Class Magistrate Court, Malappuram. A scene mahazar was prepared forthwith by the Sub Inspector of Police. The witnesses were questioned by him and after concluding the investigation, a final report was laid before the Judicial First Class Magistrate Court, Malappuram alleging commission of offence punishable under Section 304 IPC against the accused. Finding that the offence alleged is one exclusively triable by a Court of Sessions, the Magistrate committed the case to that Crl.A.No.1530 of 2005 4 court by committal proceedings initiated as C.P.No.42/2003. On receipt of the case records, the Court of Sessions, took the case on file and made the same over to the Assistant Sessions Judge, Manjeri for trial and disposal. Subsequent to that the case was withdrawn from the Court of Additional Sessions Judge, Manjeri by the Court of Sessions, Manjeri and was again made over to the Court of Additional District and Sessions Judge, Adhoc II, Manjeri. A preliminary hearing was held therein. After hearing the learned Public Prosecutor and the learned counsel for the defence, a charge was framed for the offence under Section 304 IPC. It was read over and explained to the accused. He pleaded not guilty to the charges and claimed to be tried. Accordingly, the trial was held. 2. On the side of the prosecution, it's witnesses were examined as PWs1 to 8 and documents were marked as Exts.P1 to P8. On closure of the evidence of the prosecution, the accused was questioned under Section 313(1)(b) Cr.P.C with reference to the incriminating circumstances brought in evidence by the prosecution. The accused denied all those incriminating circumstances put to him. He did not file any written statement in addition. Sufficient grounds having not been made out to record an order of acquittal, the accused was Crl.A.No.1530 of 2005 5 asked to enter upon his defence. The accused did not adduce any evidence Thereupon, the learned Public Prosecutor and the learned counsel for the defence were heard. The court below found the accused guilty for the offences under Sections 304(A) and 279 IPC. He was convicted and sentenced to undergo the punishment imposed. Aggrieved by the finding of guilt against him for the offences, order of conviction and sentence imposed, he approached this Court in the captioned appeal. 3. Adv.Syamanthak B.S. and Sri.D.Chandrasenan, the learned counsel for the appellant and the Public Prosecutor respectively were heard. The evidence on record is appreciated in depth. 4. The learned counsel for the appellant raised several arguments to rest his contention that the judgment under challenge is illegal and against the facts and evidence let in by the prosecution. According to him the oral as well as the documentary evidence on records have not been correctly appreciated by the court below and thereby a finding of guilt was entered, following which an order of conviction was passed and the sentence was imposed. According to the counsel the charge framed by the court does not incorporate the necessary ingredients liable to attract the offence under Section 304 IPC Crl.A.No.1530 of 2005 6 for which he was charged with and tried. According to him for the reason, the trial held has no sanctity at all and it is liable to fail. It is contended by the learned counsel that though two ocular witnesses have been examined by the prosecution as PW1 and PW2, PW1 turned totally unloyal to the prosecution. According to him, PW2 has deposed in a manner supporting the case of the prosecution, but his identification of the accused in the court is liable to be viewed with suspicion. The learned counsel has also contended that though the accused had been questioned under Section 313(1)(b) Cr.P.C, it is pertinent to note that a question referring to his rash and negligent driving was not put to him and he was not made to explain the same. According to the learned counsel, this is a serious flaw and the trial is liable to be vitiated on its basis. The contention secondly raised was that despite being chargesheeted by the police and charged by the court for the offence under Section 304 IPC, he was found guilty after trial only alleging to have committed the offences under Sections 304(A) and 279 IPC. He was convicted accordingly and sentenced to undergo the punishment prescribed by the Code for those offences. Placing reliance on **Benny Francis and others v. State of Kerala (1991 Crl.LJ.2411)** , it is contended by the learned counsel that it was Crl.A.No.1530 of 2005 7 improper and illegal for the prosecution to convict an accused who was chargesheeted for the offence under Section 304(A) IPC without a charge to that effect being framed against him and read over to him. According to the learned counsel none among the ocular witnesses examined by the prosecution have deposed during the trial held that the accused was driving the vehicle in a rash and negligent manner. Therefore, the court below ought not to have arrived at a finding that the accused has committed the offences under Sections 304(A) and 279 IPC. Thirdly, it was contended by the learned counsel that PW2, an ocular witness of the prosecution had no occasion to identify the accused, since he was proceeding through the road at the relevant time at a distance far away from the place of occurrence. According to him neither PW1 nor PW2 while being examined as witnesses, did not have a case that the accused have been shown to them by the police during the course of investigation for identification purpose. According to the counsel, the witnesses have identified the accused for the first time in court during trial and therefore their identification is tainted with impropriety. 5. Raising arguments as above, the learned counsel pleaded for a reversal of the judgment in question and to enter into an order of acquittal of the accused. Crl.A.No.1530 of 2005 8 6. Per contra, the learned Public Prosecutor has submitted that in the case on hand PW1 and PW2 have supported the case of the prosecution in corroborative terms. According to him the witnesses have deposed in categoric term about the material particulars of the prosecution case and there is no reason to doubt those. Accordingly, he pleaded for noninterference with the judgment under challenge. 7. In the backdrop of the arguments advanced, a scrutiny of the evidence on record is also done. The oral evidence tendered by PW1 and PW2 are relevant, they being ocular witness. PW1 was the first informant of the incident to the police and Ext.P1 is the First Information Statement lodged by him. The First Information Statement was recorded by PW6, the Sub Inspector of Police, Kottakkal Police Station. Ext.P1(a) is the crime registered on the basis of Ext.P1. PW1 when examined before the court has turned unloyal to the prosecution by tendering evidence against the claim of the prosecution but the strange factum noticed from his evidence during cross examination after declaring him hostile was that he had admitted the facts recorded from him by the police and also put underneath his deposition in writing that what have been stated by him in the court are true and correct. To a specific question put to him by Crl.A.No.1530 of 2005 9 the prosecution, he has stated that all matters spoken by him before the court are true and correct and those stated before police are not true to facts. PW6 is the officer who has recorded his Ext.P1 statement from him. PW6 has stated that the defence has no case that the contents of Ext.P1 was falsely recorded by him. According to him whatever have been furnished by PW1 about the incident have been recorded by him in Ext.P1. Admittedly, the signature found in Ext.P1 was put by PW1. Admittedly, whatever is recorded in Ext.P1 was stated by PW1 to PW6. Therefore, there is nothing wrong in relying on the first information statement. Going by Ext.P1 it is seen that PW1 has narrated the incident and has stated that he had witnessed the same. In this connection it is pertinent to have a look at Ext.P5, the scene mahazar prepared by the prosecution in the case on hand. As evidenced from the description in the scene mahazar, the incident was occurred in front of the shop belonging to one Cherala Mohammed, who is PW1 in the case on hand. PW2 another ocular witness of the prosecution has also spoken about the presence of PW1 at the place of occurrence at the relevant time of incident. Therefore, it can be safely concluded that PW1 was very much available at the place of occurrence and had witnessed the incident. This court finds no reason to disbelieve Crl.A.No.1530 of 2005 10 PW1 in the circumstances narrated hereinabove. 8. PW2 is another ocular witness examined by the prosecution. His version was that he went to a place near the place of occurrence on the alleged day to meet a person. According to him after the assignment while he was proceeding through the road ahead, due to sounding of a horn repeatedly from behind, he turned back. He saw bus bearing registration No.KL-13/C 7097 proceeding ahead in high speed after overtaking another vehicle. It went to the wrong side i.e., northern side and hit a boy who was riding a bicycle against the direction in which the bus was proceeding. According to PW2, after the incident, the bus was stopped after moving ahead further to a distance of 20 meters. The driver of the bus got down therefrom and fled from the scene. The incident was occurred in day-light. While the incident was occurred, PW2 was proceeding ahead through the road in the very same direction in which the bus was proceeding and therefore there is nothing wrong in accepting his version that he had seen the driver of the bus. It is with that identifiable features captured in his mind that he had deposed before the court and identified the accused as the person, who had driven the bus on the fateful day. The learned counsel for the appellant has cited **Suresh v. State of** Crl.A.No.1530 of 2005 11 **Kerala (2018(1) KHC 735)** to contend that non identification of the accused by the witnesses prior to the trial proceedings would vitiate the trial. Paragraph 17 of the aforesaid judgment is relied on by the learned counsel to rest his contention. “17. PW2, Francis claimed to have witnessed the incident and deposed accordingly. He has stated in the box that the incident was occurred 30-35 metres away from the shop where he was sitting at the relevant time of the incident. According to him, he rushed out from the shop to the spot on hearing the sound of collision of the vehicles. He would also state that when reached at the spot, the victim was found lying on the road in a pool of blood. If the version of PW1 was appreciated in the proper way, it could be gathered that he reached the spot only after the alleged occurrence. Admittedly, PW1 has no previous acquaintance with the accused and accordingly, has not stated any identification marks of the accused to the police when he was questioned. But, PW1 identified all the accused in the dock. His specific case was that the Investigating Officer has not questioned him showing the accused in the course of the investigation. According to him, the incident was witnessed by him in the street light as well as in the light that emanates from the bus. But, defence has successfully pointed to this Court during cross-examination that, the said statement was only an embellishment. Therefore, the version having been spoken by the witness for the first time in the Court and identification of the accused having done first in point of time in Court, those pieces of evidence cannot be given much weight. The definite case of the Crl.A.No.1530 of 2005 12 witnesses was that identification marks of the accused have not been noted by him. Admittedly, previous acquaintance of the accused was not there. He had also no occasion to see the accused during investigation. Therefore, the identification for the first time in the Court cannot be given much weight. These circumstances, as rightly contended by the learned counsel, would only tend to disbelieve the version of PW2.” 9. The ocular witness examined in the said case as PW2 had also no previous acquaintance with the accused. It was also gathered by the court in the case on hand based on materials available before it that PW2 had reached the spot only after the alleged occurrence. It is pertinent to note from the evidence that the case of PW2 himself was that by the time he reached the spot, the victim was lying on the road in a pool of blood. In the case cited supra, the witness himself has no case that he had seen the accused and had witnessed the incident. There was identification of the accused by the witnesses in the court. In the said circumstances the court held that the identification of a witness first in point of time in the court alone would vitiate the trial. When viewed in the backdrop of the evidence in the case on hand it is relevant to notice that PW2 has deposed categorically that the incident was witnessed by him at a Crl.A.No.1530 of 2005 13 distance during the course of moving ahead in the very direction of the bus. It is the specific case of PW2 that when he reached very near to the place of incident, the driver got down from his seat and fled from the scene. Moreover incident being occurred at day time, daylight was also there to facilitate identification of the accused. According to PW1 based on the memory of the figure of the accused captured in the very glance that he had identified the accused in the court. Moreover, this is a case wherein only a single accused is involved. The witness PW2 was cross examined by the defence at length and nothing was brought out to discredit his version regarding the incident and also with regard to the identification of the accused. Therefore, the case cited by the learned counsel will not come to his rescue in the case on hand. 10. As already stated, the accused was chargesheeted by the police for the offence under Section 304 IPC. Going by the court charge also, the accused was charged by the court for the very same offence. The trial was held and after conclusion of the trial, the court found the accused guilty for the offences punishable under Sections 304(A) and 279 IPC and convicted and sentenced him. The learned counsel has relied upon **Benny Francis** 's case supra to rest his contention that the trial held is Crl.A.No.1530 of 2005 14 vitiated on the failure of the court below to charge the accused for the offence under Sections 304(A) and 279 IPC. In the backdrop of the said contention, it is relevant to have a look at **Benny Francis** 's case supra. It is a case wherein the accused was chargesheeted by the police and charged by the court for the offences defined under Sections 300 and 304 Part II. It is a case wherein the accused was found guilty for the offence under Section 304(A) IPC without a charge being framed against the accused. When the evidence on record is viewed in that backdrop, it is relevant to notice that the court has framed a charge against the accused for the offence under Section 304 IPC. Going by the charge, it is relevant to notice that it also incorporates the ingredients to attract the offences under Sections 304(A) and 279 IPC. It is apposite to extract the relevant portion of the charge framed by the court below in the case on hand hereunder. “You being the driver of the bus bearing No.KL13.C.7097 drove the same at 5.30 pm. on 24.7.2002 through the Thrissur-Kozhikode N.H.17 public road from Changuvetti side to Edarikkode side in a rash and negligent manner and in an excessive speed with the knowledge that it is likely to cause death of the deceased boy who was riding a bicycle through the side of the road in the apposite direction and when the bus reached about Crl.A.No.1530 of 2005 15 200 metres west of Kottakkal Ayurveda College it hit on the body of the deceased boy by name Arun Sethu and his bicycle. The bus dragged the boy and bicycle to a distance of about 20 metres which caused fatal injuries on the body of the said Arun Sethu and he succumbed to those injuries. It is further alleged that the accused had driven the bus in an excessive speed without ignoring the warning of CW3 who was a passenger of the said bus and thereby the accused committed culpable homicide not amounting to murder punishable under section 304 of IPC and within the cognizance of Court of Session, Manjeri.” 11. Therefore, there is no scope for a doubt to arise that the accused in the case on hand was charged with allegations liable to attract offences under Sections 304(A) and 279 IPC. Therefore, the decision supra cited by the learned counsel would not help him and contentions raised on its basis are clearly untenable. 12. The further contention advanced by the learned counsel was that either PW1 or PW2 who have been examined as ocular witnesses in the case on hand has not spoken about the negligence of the accused. Going by the evidence of PW1, as already discussed herein above, Ext.P1 first information statement given by him can be safely relied upon, in the absence of any contradiction with reference to that brought on record by the defence. It is true that Ext.P1 first information statement is Crl.A.No.1530 of 2005 16 not a substantive piece of evidence. But that being a signed statement and the contents thereof have not been controverted by the defence successfully, there is nothing wrong in relying on those. The statement given by PW1 and recorded in Ext.P1 being relevant in the context is extracted hereunder: "ബസ� മന�ൽ പ��യ�രന മറ��ര ബസ�റ� വളറ� പവഗതയ�ൽ ഡ�വർ ശദ�ക�റത ഓവർപ�ക� റ�യവ��കയ#, ആ സമയ# എ���പക��� ഭ�ഗത ��ന# പക�ടകൽ ഭ�ഗപ-ക� പ.�ഡ�റ0 വ�പക റ��ള�യ�ലറ� ഡസക�ള�ൽ വരകയ�യ�രന മ���# �.മ�ൽ പസതമ�ധവറ0 സമ�ർ 14 വയസള അരൺ പസത എന കട�റയ ഇ��ച വല�ചറക�ണപ��കനത# കണ.” 13. The extracted portion would clearly indicates that the accused was negligent in driving the vehicle. It is true that the word 'negligence' has not been used in the version. But it can be deduced from the version given by PW1 in Ext.P1 that the accused was rash and negligent while driving the bus. The oral evidence of PW2 in chief examination, is also relevant in the context. The relevant portion is extracted hereunder for reference purpose. “അവ�റ� ��ന ഞ�ൻ ആശ�റ� കണ. എ���പക��� ഭ�ഗറ- പ.�ഡ�റ0 വ�ക ഭ�ഗത ക�� ��ന പ��വകയ�യ�രന. അപന�# back ൽ ഒര Bus വല�റത Air horn അ��ച വരനത പകട. ഞ�ൻ ത���ഞ പ��ക�. Bus over speed ആയ�രന. അപന�# കട� ഡസക�ള^ൽ വ�ക ഭ�ഗ# പ.�ഡ�ൻ. side ൽ വരനണ�യ�രന. Bus അപക��# മറ��ര Bus റ� Crl.A.No.1530 of 2005 17 ## overtake റ�യ� ത wrong side ൽ ക�� വന കട�യറ� ഡസക�ള^ൽ ഇ��ച. 10-20 മ^�ർ അപത side ൽ ക�� വല�ച റക�ണ പ��യ�.” 14. It is true that PW2 has also not specifically mentioned the word negligence in his version. But from the aforesaid portion extracted from his deposition, it is clear that the accused was driving the bus in a rash and negligent manner. As already stated the court charge was also specific on terms regarding rashness and negligence on the part of the driver while driving. Therefore the contention of the learned counsel that the witnesses have not spoken about the negligence of the accused is devoid of merits. 15. In view of the aforesaid discussion this Court finds that there was every reason to support the logical conclusion arrived at by the court below in the case. The ocular witnesses of the prosecution, examined as PW1 and PW2 have deposed in corroborative manner on the material aspects of the case of the prosecution. The identification of the accused is not liable to be interfered with for the reasons stated above. The finding of guilt of the accused for the offences under Sections 304(A) and 279 IPC is therefore, a sustainable one. The conviction based on that is also sustainable. 16. At this juncture, the learned counsel has pleaded for Crl.A.No.1530 of 2005 18 interference with the punishment imposed by the court below vide the impugned judgment. Going by the punishment imposed, it is relevant to notice that the maximum punishment prescribed by the Code to be imposed for offences under Sections 304(A) and 279 IPC was imposed by the court below. It is true that the offence when viewed in the backdrop of its impact is grave in nature. But the court is granted by the Code with discretion to be exercised in the matter of imposition of sentence. Under Section 279 IPC, the punishment of six months is the maximum period prescribed by the Code. Similarly, for offence under Section 304(A) two years imprisonment is the maximum punishment liable to be imposed. As already stated the maximum period of punishment has been imposed by the court below. In view of the factum evidenced from the impugned judgment that the accused was not previously convicted for identical offences, this Court is inclined to modify the sentence by reducing the same. While confirming the conviction for the offences under Sections 279 and 304(A) IPC, the punishment already imposed is modified to imprisonment of three months for the offence under Section 279 IPC and imprisonment for one year, for the offence under Section 304(A) IPC. The accused is directed to undergo the modified sentences concurrently. The Crl.A.No.1530 of 2005 19 direction to set off the period of custody in the judgment under challenge is maintained. The Crl.Appeal is allowed on terms as above. **Sd/MARY JOSEPH Judge** ab **Sd/-** **MARY JOSEPH JUDGE**