Rajan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 27TH DAY OF SEPTEMBER 2016/5TH ASWINA, 1938** **Crl.Rev.Pet.No. 4069 of 2007 ( )** **--------------------------------AGAINST THE JUDGMENT IN Crl.APPEAL NO.333/1999 of ADDITIONAL DISTRICT & SESSIONS JUDGE, FAST TRACK COURT-I, THIRUVANANTHAPURAM DATED 16-08-2007** **AGAINST THE JUDGMENT IN CC 644/1996 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I,ATTINGAL DATED 30-07-1999** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **---------------------------------------RAJAN, AGED 39 YEARS, S/O.KRISHNANKUTTY NAIR, VILAYATTUMOOLA VEEDU, VANCHIYOOR, MEVARKKAL DESOM, ALAMCODE VILLAGE.** **BY ADVS.SRI.P.B.ASOKAN SRI.SHERRY J. THOMAS** **RESPONDENT(S)/RESPONDENT/COMPLAINANT:** **-------------------------------------** **STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, ATTINGAL,CRIME NO.1162/96 BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA.** **R, BY PUBLIC PROSECUTOR SRI. D. CHANDRASENAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.4069 of 2007 ---------------------------------------------Dated this the 27[th] day of September, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.333/1999 of Additional District & Sessions Judge, Fast Track Court-I, Thiruvananthapuram. He was charge sheeted in C.C.No.644/1996 of Judicial First Class Magistrate-I, Attingal u/s.279, 340A IPC. The learned Magistrate convicted the accused and sentenced to rigorous imprisonment for two years u/s.304A IPC and sentenced to imprisonment for six months u/s.279 IPC. The sentence was ordered to run concurrently. He was also disqualified from holding driving licence for a period of one year from the date of expiry of the sentence. Against that, he preferred the above criminal appeal before the Sessions Court, where the learned Crl.R.P.No.4069/2007 2 Sessions Judge dismissed the appeal. Being aggrieved by that, he preferred this revision petition. 2. The charge against the accused is that on 17.6.1996 at 9 a.m., the accused had driven the bus bearing registration No.KL-01D 9875 through AttingalKollampuzha public road in a rash and negligent manner endangering human life, when it reached at Kollampuzha, the vehicle knocked down one Anilkumar, who was proceeding through the road, as a result, he sustained serious injury and died at the spot itself. During trial, prosecution examined PW1 to PW13 and marked Exts.P1 to P13 as documentary evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He examined DW1 to DW3. The learned Magistrate convicted the accused. 3. The main argument advanced by the learned counsel appearing for the revision petitioner is that while the revision petitioner was trying to overtake a jeep, a Crl.R.P.No.4069/2007 3 school bus came from the opposite direction and a child suddenly jumped in front of school bus, then the driver of the school bus suddenly diverted the school bus, which forced the revision petitioner to swerve his vehicle towards the north, it resulted in the accident. There was no negligence from the part of the revision petitioner. 4. The learned Public Prosecutor contended that the above contention was rejected by the learned Magistrate. When rash and negligent driving of the revision petitioner is proved, no interference is necessary. 5. Apex Court in _**S.N. Hussain**_ v. _**State of Andhra Pradesh**_ [1972 (3) SCC 18] held as follows: “(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. Crl.R.P.No.4069/2007 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. 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.” It is the duty of the prosecution to prove the rash and negligent driving of the vehicle by the driver of the vehicle. It must also be proved that the injury or death had happened, due to the rash and negligent act of the revision petitioner. 6. For establishing the rash and negligent driving, Crl.R.P.No.4069/2007 5 the prosecution examined PW1, the member, Ward III of His evidence shows that on Attingal Municipality. 17.6.1996, at 9 a.m. he was 14 meters away from the place of occurrence. At that time, the offending vehicle came in rash and negligent manner from east to west and hit against one Anilkumar, who was riding bicycle, as a result he fell down under the bus and crushed. He categorically stated that the accident had occurred due to the rash and negligent driving of the revision petitioner. He identified the accused at the Police Station. PW2 and PW5 supported the evidence of PW1. The evidence of these occurrence witnesses shows that the deceased was riding a bicycle from west to east keeping his side and the vehicle went towards southern side. The bus proceeding from eastern side went to the wrong side and hit against the motorcycle rider. Therefore, the rash and negligent driving of the bus was properly proved by the prosecution. From the evidence of PW1, PW2 and PW5, it is clear that they saw Crl.R.P.No.4069/2007 6 the accident and their direct oral evidence is believable. PW13 conducted postmortem of the deceased and issued Ext.P12 certificate. Ext.P12 is corroborating the oral testimony of PW1 and PW2. 7. In the light of the above evidence, I have examined the defence evidence adduced by the revision petitioner. He examined DW1 to Dw3. DW1 is the driver of the school bus. DW2 is the driver of the jeep. DW3 is another witness. Even though DW1 and DW2 deposed that they were drivers, no documents were produced in the trial Court to show that they had driven the bus and jeep. In the absence of such evidence, it is difficult to accept their defence contention. From the statement of PW1, PW2 and PW5, it is clear that the vehicle went at wrong side and hit against the deceased. A perusal of Ext.P7 Mahazar shows that accident had occurred on the northern tar end 55cm south towards northern tar end. It is clear that DW1, DW2 and DW3 cooked up a new story. Nothing has been Crl.R.P.No.4069/2007 7 brought out in evidence to show that while overtaking a jeep, the school van came from the opposite side, at that time, the minor child crossed the road and the accident occurred. In such a situation, I am discarding the defence contention. Their evidence was also rejected by both courts below and concluded that the accident was due to the rashness or negligence of the revision petitioner. 8. It is true that the speed alone is not criteria for deciding rashness or negligence on the part of the driver. Normally, the driver of the vehicle is expected to drive the vehicle in a normal speed. The relationship between the negligence and rashness depends upon the place and time of the accident. In a wide and straight road, if one drives a vehicle and no obstruction of passengers and other vehicle, the driver is expected to drive the vehicle at a permitted speed. In such a situation, it cannot be said that he was driving the vehicle in a rash and negligent manner. Analysing the oral and documentary evidence of PW1, PW2 Crl.R.P.No.4069/2007 8 and PW5, I am of the opinion that the trial Court and the appellate Court rightly appreciated the fundamental principle analysing the prosecution evidence. The prosecution evidence is sufficient to confirm the findings of the courts below. Therefore, the conviction passed by the trial Court u/s.279 and 304A IPC is confirmed. 9. Learned counsel submitted that sentence may be reduced by imposing compensation and fine. The trial court imposed rigorous imprisonment for two years under Section 304A IPC and six months under Section 279 IPC. Apex Court in _**Chandra Mohan Nair**_ V. S _**tate of Kerala**_ (1994 SCC Crl 1750) held that having regard to the fact that the incident took place long back, the sentence is reduced to three months rigorous imprisonment. Considering the nature of the offence and the circumstances under which it was committed, I am of the view that the imprisonment imposed by the trial court is to be reduced to rigorous imprisonment for three months and Crl.R.P.No.4069/2007 9 fine of Rs.10,000/-, in default imprisonment for three months. Crl.R.P is disposed of as above. **P.D. RAJAN, JUDGE.** acd