Pyarison v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 29TH DAY OF SEPTEMBER 2016/7TH ASWINA, 1938** **CRL.REV.PET.NO. 1488 OF 2003 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.80/2001 OF SESSIONS COURT, MANJERI DATED 31-03-2003** **AGAINST THE JUDGMENT IN CC NO. 591/1997 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I,PERINTHALMANNA DATED 17-03-2001 ---------------** **REVISION PETITIONER(S): ----------------------** **PYARISON, S/O KURIAKOSE, DRIVER, PARAYANIKKAL VEEDU, KARIKKODE VILLAGE, THEKKUMBHAGAM, THODUPUZHA.** **BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE** **RESPONDENT(S)/COMPLAINANT : ------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.50 OF 1997 OF KOLATHUR POLICE STATION)** **BY PUBLIC PROSECUTOR SRI.C.N.PRABHAKARAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. ---------------------------Crl. Rev.Pet. No.1488 of 2003 ---------------------------------Dated this the 29[th] day of September, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.80 of 2001 of the Sessions Judge, Manjeri. He was charge sheeted in C.C. No.591 of 1997 by the Judicial First Class Magistrate Court-I, Perinthalmanna under Secs.279 and 304(A) of the Indian Penal Code ('IPC' for short). The learned Magistrate convicted the accused and sentenced him to undergo rigorous imprisonment for one year under Sec.304(A) IPC and rigorous imprisonment for six months under Sec.279 IPC. Against that, he preferred the above criminal appeal before the Sessions Court, where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision petition. 2. The charge against the accused is that on 15.04.1997 at 3.30 p.m., the accused had driven a mini lorry bearing registration no.KL-7/G-3362 in a rash and Crl. Rev.Pet. No.1488 of 2003 2 negligent manner so as to endanger human life from Malappuram to Perinthalmanna (west to east) and when it reached in front of the house of PW1, the vehicle hit against a minor child who was walking on the southern side of the road. As a result, the minor child sustained serious head injuries and while undergoing treatment at Moulana hospital, Perinthalmanna he succumbed to the injuries thereby, the accused committed the offences under Secs.279 and 304(A) IPC. Perinthalmanna Police registered a crime and after completing investigation, Circle Inspector laid charge in the Judicial First Class Magistrate Court-I, Perinthalmanna. During trial, prosecution examined PW1 to PW11 and marked Exts.P1 to P7 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. 3. Learned counsel appearing for the revision petitioner contended that three children were waiting for crossing the road, out of which two of them crossed the road but the deceased one crossed half of the road and on Crl. Rev.Pet. No.1488 of 2003 3 seeing the vehicle she returned to the southern side thereby the accident occurred. Moreover, no test identification parade was conducted by the prosecution to prove that the revision petitioner was rash and negligent at the time of incident. He relied the decisions reported in **Chandran v. State of Kerala [2013 (3) KHC 312], Mahabir v. State of Delhi [2008 KHC 4541] and also Nar Singh v. State of Haryana [2014 KHC 4711]** . 4. Learned Public Prosecutor strongly opposed the above argument and contended that the direct oral testimony of the occurrence witnesses is believable and the ingredients of rash and negligent driving were deposed by them. There is no evidence to show that the deceased attempted to cross the road. Therefore, in the absence of such evidence, such contention is not admissible. PW1 and PW2 saw the accused at the time of occurrence in the broad day light and subsequently they identified him before court in such a situation, test identification parade is not mandatory and their evidence is believable. 5. The rash and negligent driving of a vehicle Crl. Rev.Pet. No.1488 of 2003 4 on a public way to endanger human life or likely to cause hurt or injury to another person is an offence affecting the public safety is punishable under Chapter XIV of the Indian Penal Code. In negligence there is no intention which happens without any previous planning on the part of the wrong doer. In negligence, the wrong doer breaks a positive duty and in “rashness” he breaks a negative duty. On the other hand in “rashness” the person does any act which he is bound to attain and he breaks that negative duty and “in negligence” the person who commit a wrongful act, fails to observe a positive duty and he does not advert to the act which is his duty to do. The difference between the two has been explained by Lord Esher M.R in **Le Lievre and Dennes V. Gould** (1989(1) QB 491). It was held as follows:- “The question of liability for negligence cannot arise at all until it has been established that the man, who has been negligent, owed some duty to the person who seeks to make him liable for his negligence. A man is entitled to be a negligent as he pleases toward the whole world if he owes no duty to them. If one man is ## Crl. Rev.Pet. No.1488 of 2003 5 near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property. For instance, if a man is driving along a road, it is his duty not to do any act, which may injure another person whom he meets on the road. In the same way, it is the duty of a man not to do that, which will injure the house of another to which he is near. If a man is driving on Salisbury Plain and no other person is near him, he is at liberty to drive as fast or recklessly as he pleases. But if sees another carriage coming to him, immediately a duty arises not to drive in such a way as is likely to cause an injury to that other carriage. So too, if a man is driving along a street in a town, a similar duty-not to drive carelessly arises out of contiguity or neighbourhood”. Therefore negligence can be fixed only when it is established that the man owed some duty failed to do that duty. 6. Apex Court in **S.N. Hussain v. State of A.P. [1972 (3) Supreme Court Cases 18]** which reads ## Crl. Rev.Pet. No.1488 of 2003 6 ## as follows: 1. 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 the 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. 7. While adverting to the above argument, I have perused the oral and documentary evidence in this case. PW1 deposed that the accident occurred in front of his house when he was standing there. PW2 who was proceeding to his house also witnessed the incident. The occurrence witness PW1 deposed that he saw the mini lorry coming from east to west by overtaking another vehicle and it dashed against the child. This witness deposed that the offending vehicle came at a high speed. PW2 who was near the place of occurrence deposed that Crl. Rev.Pet. No.1488 of 2003 7 the revision petitioner had driven the vehicle in a rash and negligent manner from west to east by overtaking another vehicle it hit against the deceased. Analysing the evidence of these witnesses, it is clear that the rash and and negligent driving of the revision petitioner was properly proved by their direct oral testimony. Both courts below rightly appreciated the evidence in the correct perceptive, there is no misreading of evidence and no illegality in the analysis. All relevant factors with regard to the rash and negligent driving have been considered and the other factors which in favour of the accused/revision petitioner were also properly considered and answered. 8. The medical evidence is corroborating the oral testimony of PW1 and PW2. Immediately after the incident, the minor child was removed to Moulana hospital, Perinthalmanna and treated there. PW8 conducted postmortem examination and issued Ext.P6 postmortem certificate which shows that the death was due to brain injury. This evidence is corroborating the prosecution case. Crl. Rev.Pet. No.1488 of 2003 8 9. The place of occurrence was noted as 30 cms north from the southern tar end. The lie of the road at the place of occurrence is towards west to east. The minor deceased was standing on the southern side of the road. The vehicle was plying from west to east by the revision petitioner. He has to keep northern side as his right side. At the place of occurrence, the tarred portion has a width of 7 metres. The northern road margin has a width of two metres and the southern road margin has a width of 1½ metres. The tyre mark has two metre length at the place of occurrence. In this context, I have considered the defence put forward by the revision petitioner. Learned counsel submitted that three students were standing at the southern side and they attempted to cross the road from south to north, of which two of them crossed the road, after that the deceased made an attempt to cross the road and he retreated to the southern road margin. In order to avoid an accident, the vehicle turned to the southern road margin and the accident happened. This story is unbelievable since the road at the place of occurrence has a width of 7 metres and the place of Crl. Rev.Pet. No.1488 of 2003 9 occurrence is 30 cms north from the southern road margin. The presence of other vehicle at the place of occurrence is not proved which shows that the revision petitioner was driving the vehicle at a high speed and he was unable to control the vehicle at the place of occurrence and the vehicle went on the other side and it knocked down the deceased. Therefore, the defence contention put forwarded by the revision petitioner is discarded. Sec.304A IPC requires causing death by doing any rash or negligent act which means death must be the direct or proximate result of the rash or negligent act. The evidence of PW1 and PW2 and the medical evidence show that the revision petitioner was rash and negligent for the accident which was rightly appreciated by the trial court and the appellate court. Therefore the conviction under Secs.279 and 304A IPC is confirmed. 10. The incident was occurred 19 years back. Now the revision petitioner is working as a sales man in Popular tools and abandoned his driving job. Apex court considered the similar matter in **Chandramohan Nair v. State of Kerala [1994 SCC Cri.1750 ]** and held that Crl. Rev.Pet. No.1488 of 2003 10 sentence of three months rigorous imprisonment with payment of fine with default clause is sufficient to meet the ends of justice which reads as follows: “There is no dispute that the accused was driving the car, but according to the learned counsel, the car was proceeding on a public road and the deceased crossed suddenly and the same resulted in an accident which cannot be said that the appellant was driving the car rashly and negligently. This is a question which depends upon the merit in each case. The evidence on record i.e., of PW1 shows that the deceased was crossing the road at a distance of 50 feet away from the running car. In such a situation it would not have been impossible for the accused to apply brakes. That apart, the number of injuries would show that the impact must have been very severe. The appellant without stopping the car sped away. This circumstance would go to show that he acted rashly and negligently. There is no merit in this appeal and the same is dismissed accordingly. But having regard to the fact that the incident took place in the year 1981, the sentence is reduced to 3 months RI. The payment of fine with default clause, if any, is confirmed. The appellant shall surrender and serve out the Crl. Rev.Pet. No.1488 of 2003 11 remaining portion of sentence, if any. ” 11. Considering the facts and circumstances, the sentence imposed by the trial court is modified as follows: The revision petitioner is sentenced to fine of Rs.1,000/- (Rupees one thousand only) under Sec.279 IPC in default simple imprisonment for one month and sentenced to simple imprisonment for three months and fine of Rs.10,000/- (Rupees ten thousand only) under Sec.304A IPC in default, simple imprisonment for six months. Revision petitioner is directed to surrender in the trial court to undergo the modified sentence failing which the learned Magistrate shall issue non bailable warrant forthwith. This revision petition is disposed of accordingly. Sd/- **P.D. RAJAN, JUDGE** / True Copy / P.A. To Judge NS/26/09/2016