RadhaKRISHNAN v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 20TH DAY OF SEPTEMBER 2016/29TH BHADRA, 1938** **CRL.REV.PET.NO. 202 OF 2004 (A) --------------------------------** **AGAINST THE JUDGMENT IN CRA NO.343/2001 OF SESSIONS COURT, KOZHIKODE DATED 28-10-2003** **AGAINST THE JUDGMENT IN CC NO.550/1994 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOZHIKODE DATED 31-05-2001** **--------------------------------** **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **-----------------------------------------** **RADHAKRISHNAN, S/O. VASU, PULPARAMBIL HOUSE, IRINGALLOOR AMSOM DESOM.** **BY ADV. SRI.P.V.KUNHIKRISHNAN** **RESPONDENT(S)/RESPONDENTS/STATE::** **---------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SRI.C.N. PRABHAKARAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. R.P. No.202 of 2004 --------------------------------Dated this the 20[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.343 of 2001 of the Sessions Judge, Kozhiode. He was the accused in C.C. No.550 of 1994 of the Judicial First Class Magistrate Court-III, Kozhikode for the offences punishable 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 two years under Sec.304(A) IPC and rigorous imprisonment for one month under Sec.279 IPC. Against that, he preferred the above 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 26.12.1993 at 13.45 hours, the accused had driven a bus bearing No.KRH-8348 in a rash and negligent manner Crl. R.P. No.202 of 2004 2 along the Kozhikode-Mankavu public road from south to north and when it reached at the place of occurrence, it hit against a scooter No.KL11/B-1735. As a result, the rider of the scooter sustained serious injuries and while undergoing treatment, the injured succumbed to the injuries thereby, the accused committed the offences under Secs.279 and 304(A) IPC. During trial, prosecution examined PW1 to PW13 and marked Exts.P1 to P10 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 submitted that there was no rash and negligent act from the side of the revision petitioner which resulted in the death of the scooter rider. It is the primary duty of the prosecution to prove the rashness or negligence by adducing convincing evidence. An incident happened itself is not sufficient to convict the accused under Secs.279 and 304(A) of IPC. He relied the decision Crl. R.P. No.202 of 2004 3 reported in **Suleman Rahiman Mulani and Another** v. **State of Maharashtra [AIR 1968 SC 829]** . 4. The learned Public Prosecutor, in reply, submitted that driving of a vehicle through the eastern side of the median which is a prohibited area for the vehicle itself is a negligent act. Therefore, the death of the scooter rider was due to the impact of the negligent act itself is sufficient to attract the offence and no reason to interfere in the finding of the courts below. 5. Rash and negligent driving has been explained by the Apex Court in **S.N. Hussain v. State of A.P. [1972 (3) Supreme Court Cases 18]** which reads 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. Crl. R.P. No.202 of 2004 4 (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. 6. In the present case, prosecution examined PW2 and PW3 as occurrence witnesses. The evidence of PW2 shows that he was travelling in a scooter from Kozhikode to Mankavu. When he reached at Kaloor road junction, a bus plying towards Kozhikode was stopped at Kaloor bus stop. At that time another bus came from the same side plying towards Kozhikode town proceeded through the wrong side of the road and hit against the scooter coming from the opposite direction and it pulled him for a short distance and thereafter he fell on the road. PW2 who was standing 5 to 8 metres near the place of occurrence saw the incident. He also identified the driver of the bus. Analyzing the evidence of these witnesses, it is clear that the accident was due to the rash and negligent act of the driver of the bus. PW3 supported the evidence of PW2. Even though PW2 and PW3 were cross examined by the defence counsel nothing has been Crl. R.P. No.202 of 2004 5 brought out to discredit their evidence. Therefore it is clear that the accident was due to the rash or negligent driving of the bus. The passengers of the offending vehicle were not examined as witness by the investigating officer. But considering the oral testimony of PW2 and PW3, I cannot ignore their direct oral testimony. The lapse or pitfall from the side of the investigating officer in citing the passengers in the bus is not a ground to discard the evidence of PW2 and PW3. 7. Learned counsel relied the decision of the apex court in **Nageshwar Shri Krishna Ghobe Versus State of Maharashtra [ 1973 Supreme Court Cases (Cri) 664]** in which Paragraph 10 reads as follows: “No doubt when an accident like the present takes place one naturally expects the driver concerned to explain the circumstances in which he was obliged to take the bus on to the footpath and to strike against the electric pole with such force, thereby killing one human being and injuring several others. The satisfactory nature of the explanation to absolve him of his criminal liability for the accident has, in such circumstances, to be appraised in the light of the entire evidence on the record. The onus of course remains on the prosecution and does not shift to the accused. The evidence of the Crl. R.P. No.202 of 2004 6 bus, however, having mounted on to the footpath, which, in the normal course, does not happen, is admissible and has to be duly taken into account in understanding and evaluating the entire evidence led in the case and in appraising the value of the explanation given by the accused for his compulsion which resulted in the accident. The appellant's explanation, even though not conclusive, does, in the absence of the testimony of the bhaiya and of at least some out of the passengers, said to have been travelling in the bus, who might have been able to throw some helpful light on the relevant circumstances, seem to leave fair scope for reasonable doubt about his guilt. Whether the failure on the part of the investigating agency to contact persons who would have given useful material evidence relevant for finding the truth was due to inefficiency or was deliberate having been inspired by some other motive, is not for us to speculate on the existing record. Suffice it to say that, if it appears, as it does in this case, that material evidence has not been collected by the investigating agency for reasons which are wholly unconvincing and the evidence actually produced, leaves a serious lacuna in bringing his guilt home to the appellant, them, merely because the nature of the accident prima facie requires an explanation from the driver, would not be sufficient to sustain his conviction, if the truth of his explanation, which is not liable to rejection outright, could have been appropriately judged if the evidence left out by the prosecution had been produced. The learned Chief Justice on appeal did advert to the possibility of recording bhaiya's evidence at that stage. The idea was, ## Crl. R.P. No.202 of 2004 7 however, dropped because the appellant's counsel did not agree to examine him. In our view, this was hardly a proper approach in this case. Though we feel that in August, 1969, two years after the occurrence of July 2, 1967, the statement of Harbasingh, bhaiya, who had never been interrogated by the investigating agency, was unlikely to be very helpful, nevertheless if the High Court felt that his evidence was necessary in the interest of justice, then, the witness could and should have been examined as a court witness, the defence objection notwithstanding. Parties could not control the court's discretion to have before it further evidence if it was considered necessary for finding the truth for promoting the cause of justice. Justice would fail not only by unjust conviction of the innocent but also by acquittal of the guilty for unjustified failure to produce available evidence. On the existing record we find the evidence to be inadequate and unsafe for convicting the appellant. This, however, is entirely due to the faulty and inefficient investigation, for which no justification is forthcoming. On the view that we have taken it is unnecessary to refer to the decision cited at the bar on the question of onus of proof in criminal cases generally.” ## 8. Apex court in **Suleman Rahiman Mulani and Another v. State of Maharashtra [AIR 1968 SC 829]** held in paragraph 9 & 11 as follows: 9. Sec.304(A) says: “ whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with Crl. R.P. No.202 of 2004 8 imprisonment of either description for a term which may extend to two years, or with fine, or with both.” The requirements of this section are that the death of any person must have been caused by the accused by doing any rash or negligent act. In other words, there must be proof that the rash or negligent act of accused was the proximate cause of the death. There must be direct nexus between the death of a person and the rash, or negligent act of the accused. As mentioned earlier there is no evidence to show that it was rash or the negligent act of the accused that caused the death of the deceased. 11. Dealing with the scope of S.304-A, IPC Sir Lawrence Jenkins observed in Emperor v. Omkar Rampratap (1902) 4 Bom LR 679: “ To impose criminal liability under S.304-A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the cause sine qua non”. In case of vehicle plying through the road, normal course it is difficult to find out witness to give positive evidence to prove the incident. When an incident took place on road and the users of the road sometimes happened to be the witnesses and if they come forward and support the case, that evidence is believable and this court cannot Crl. R.P. No.202 of 2004 9 brush aside that direct oral testimony of those witnesses. Analysing the onus to prove the rash and negligent driving and the death of the deceased due to the rash and negligent act, both court unanimously opined that the revision petitioner was rash and negligent at the time of incident. Therefore, further discussion on that point is not warranted and conviction under Sec.279 and 304 (A) IPC is confirmed. 9. Learned counsel submitted that the incident occurred 23 years back and no criminal antecedents were reported against the revision petitioner. He relied the decision in **Pole George** v. **State of N.C.T. of Delhi (2008 KHC 4416)** and prayed to extend the benefit of Sec.4 of the Probation of Offenders Act, 1958. It is true that the incident occurred long back, but that itself is not a ground to release the accused on Probation of Offenders Act. Apex court considered similar matter in **Chandramohan Nair** v. **State of Kerala (1994 SCC Crl.1750)** and held that the sentence of three months rigorous imprisonment with payment of fine with default Crl. R.P. No.202 of 2004 10 ## 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 remaining portion of sentence, if any. ” 10. In the result, the sentence imposed by the trial court under Sec.304(A) IPC is modified and the revision petitioner is sentenced to rigorous imprisonment for three months and fine of Rs.5,000/- (Rupees five Crl. R.P. No.202 of 2004 11 thousand only) in default, simple imprisonment for three months and sentence imposed under Sec.279 IPC is confirmed. 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. Sd/- **P.D. RAJAN, JUDGE** NS/22/09/2016 /True Copy / P.A. To Judge