Reji, s/o Rajan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 31ST DAY OF MAY 2016/10TH JYAISHTA, 1938** **Crl.Rev.Pet.No. 3122 of 2005 ( )** **--------------------------------AGAINST THE JUDGMENT IN CRL.APPEAL 96/2001 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)COURT-I, PATHANAMTHITTA DATED 09-09-2005** **AGAINST THE JUDGMENT IN CC 206/1999 of CHIEF JUDICIAL MAGISTRATE,PATHANAMTHITTA DATED 28-06-2001** **REVISION PETITIONER(S)/ACCUSED/APPELLANT.:** **-----------------------------------------REJI, S/O.RAJAN, MANJATTIL HOUSE, NARAKATHODE, PUTHUPPALLY VILLAGE, KOTTAYAM TALUK.** **BY ADVS.SRI.PIRAPPANCODE V.S.SUDHIR SRI.SAJU JOHN** **RESPONDENT(S)/COMPLAINANT.:** **---------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDINGS, ERNAKULAM, SUB INSPECTOR OF, POLICE, KOIPURAM.** **BY PUBLIC PROSECUTOR SMT. M.G. LISHA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.3122 of 2005 ---------------------------------------------Dated this the 31[st] day of May, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.96/2001 of Additional District & Sessions Judge (Adhoc) Court-I, Pathanamthitta . He was charge sheeted in C.C.No.206/1999 by the Chief Judicial Magistrate, Pathanamthitta u/s.279, 337and 304A IPC. The charge against the accused is that on 25.2.1999 at 8.30 a.m., he was driving a bus bearing Registration No.KL7/L-3411 along the Mallappally-Pullad public road from north to south in a rash and negligent manner. When he reached at Purayidathilkavu junction at Pullad muri in Koipuram the vehicle hit against a pedestrian named Crl.R.P.No.3122/2005 2 Pennamma @ Thaly, as a result, she sustained serious injuries. Immediately, she was removed to Medical College Hospital, Kottayam. While undergoing treatment, she succumbed to her injuries. The accident was due to the rash and negligent driving of the revision petitioner. Koipuram Police registered a crime and after completing investigation, Circle Inspector of Police, Kozhencherry laid charge before Chief Judicial Magistrate, Pathanamthitta. 2. During trial, prosecution examined PW1 to PW11 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. The statement of the witness was marked as Ext.D1. The learned Chief Judicial Magistrate acquitted the accused u/s.337 IPC and convicted him u/s.279 and 304A IPC and sentenced Crl.R.P.No.3122/2005 3 thereunder. Against that, he preferred Crl.Appeal No.9/2001 of Additional District and Sessions Judge (Adhoc) Court-I, Pathanamthitta, which was dismissed by that Court. Being aggrieved by that, he preferred this revision petition. 3. The main contention advanced by the learned counsel appearing for the revision petitioner is that the accident was due to the negligence of the deceased who crossed the road at the place of occurrence without noticing the traffic on the road. There is no evidence to connect the rash and negligent driving of the revision petitioner. The occurrence witness PW2 deposed that the death was due to the negligence of the deceased. When two views are possible one which is in favour of the accused has to be taken into consideration, which was not considered by the court below. Crl.R.P.No.3122/2005 4 4. In reply, the learned Public Prosecutor submitted that with regard to negligence, two versions were stated. 5. Revisional jurisdiction is a supervisory power to correct illegality or irregularity or miscarriage of justice arising from misconception of Law which has resulted in hardship or any injury to any person. Normally the Court exercise this jurisdiction in exceptional cases when it feels that substantial injustice has been done by a Subordinate Court. If miscarriage of justice has been done by violating the fundamental rules of appreciation of evidence, High Court is justified in revising the decision of its lower courts. If a particular point is decided misconstruing the evidence on record or in the absence of evidence it is necessary for the High Court to exercise its revisional power. It is pertinent to note that the possibility of another view on a point is not a ground for interpreting with the above power. Crl.R.P.No.3122/2005 5 6. Rash driving or riding on a public way endangering human life or to be likely to cause hurt or injury to other person or pedestrian shall be punishable under the Indian Penal Code. Like so, causing death of any person by doing any rash or negligent act not amounting to culpable homicide but it is also a serious offence under the Indian Penal Code. Here, the revision petitioner was charge sheeted alleging the offence punishable u/s.304A. Therefore, while fixing or imposing the criminal liability upon an accused person, it must be found that mainly due to the rash and negligent driving the accident had occurred. 7. Here, prosecution examined PW1 to prove the rash and negligent driving of the revision petitioner. The evidence of PW1 shows that on 25.2.1999 while he was standing at Purayidathumkavu junction near the studio, Crl.R.P.No.3122/2005 6 the private bus which was coming from Kottayam to Kozhencherry slowed down, as the students gave signal to stop the vehicle, at that time, the deceased attempted to cross the road. But, the bus immediately picked up speed and so the front side of the the bus hit on the deceased and she fell down and her both legs were run over by the front left wheel of the bus. Immediately, she was removed to hospital. Subsequently, at 4 p.m., she succumbed to the injuries. PW1 identified the driver of the vehicle. 8. Another occurrence witness PW2 was present at the time of occurrence. His evidence shows that he was standing near the shop of Gopalakrishnan Nair. At that time, students and other passengers entered into the tar road and showed signal to stop the vehicle. When the bus slowed down, the deceased crossed the road and the vehicle Crl.R.P.No.3122/2005 7 hit on her body. The front wheel run over her both legs. Immediately, she was removed to hospital. Subsequently, he identified the driver of the bus. PW2 was declared as hostile. 9. Another occurrence witness PW4 also turned hostile. He did not support the prosecution case. On a perusal of the evidence of PW1 and PW2, it is clear that they are giving consistent version with regard to the negligence of the deceased. 10. The pedestrians those who are using the road are bound to obey the traffic rules while crossing the road. In this case, such caution was not taken by the deceased while she was crossing the road at the place of occurrence. 11. PW3 gave Ext.P1 statement to PW9 Head Constable, Koyipuram Police Station. On the basis of Crl.R.P.No.3122/2005 8 Ext.P1 statement, PW11 registered a crime and Ext.P8 is the FIR. He arrived at the place of occurrence and prepared Ext.P2 mahazar. He also prepared Ext.P9 inquest report. PW6 attested Ext.P2 mahazar. The owner of the vehicle was examined as PW8. He identified the driver of the bus. Ext.P6 is the report. There is no dispute with regard to the identity of the driver. The investigating officer issued Ext.P5 notice to the owner and accordingly, in answer to that, he replied with Ext.P6. There is no mechanical defect to the vehicle. Motor Vehicle Inspector was examined as PW10, who inspected the vehicle and issued Ext.P7 certificate. Therefore, the accident occurred not due to any mechanical defect. Immediately, the deceased was removed to Medical College Hospital, Kottayam, where she succumbed to the injuries. PW11 arrived at the Medical College Hospital and prepared Crl.R.P.No.3122/2005 9 Ext.P9 inquest report. PW5, who was present there attested Ext.P9 inquest report. Thereafter, the body was entrusted for postmortem examination. The doctor, who conducted postmortem examination was not examined as a witness. But, Ext.P3 wound certificate issued by the doctor of Pushpagiri Hospital shows that on 25.2.1999 the deceased had sustained eight injuries. Subsequently, the injured was referred to Medical College Hospital, Kottayam, where she succumbed to the injuries. On 26.2.1999, the doctor V.T. Augustine, Medical College Hospital, Kottayam conducted postmortem examination and issued Ext.P4 certificate. The opinion as to the cause of death recorded in Ext.P4 is that 'died due to blunt injury sustained to the chest and pelvis'. A perusal of Exts.P3 and P4 shows that the deceased Thaly sustained serious injuries and she died due to the injury sustained in the Crl.R.P.No.3122/2005 10 accident, while undergoing treatment at Medical College Hospital, Kottayam. 12. From the evidence of PW2, what is seen is that the revision petitioner had attempted to slow down the vehicle at the place of occurrence, at that time, the deceased suddenly crossed the road. The principle of appreciation of evidence in a negligence case is discussed by the Apex Court in **Syad Akbar** v. **State of Karnataka** [ AIR 1979 SC 1848] and held as follows: “As a rule, mere proof that an event has happened or an accident has occurred, the cause of which is unknown, is not evidence of negligence. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. In such cases (a) the event or accident must be of a kind which does not happen in the ordinary curse of things if those who have the management and control use due care and (b) it has to be further satisfied that the event which caused the accident was within the defendant's control. The Crl.R.P.No.3122/2005 11 reason for this second requirement is that where the defendant has control of the thing which caused the injury, he is in a better position than the plaintiff to explain how the accident occurred. Thus, for the application of the maxim res ipsa loquitor no less important a requirement is that the res must not only be speak negligence, but pin it on the defendant. ## Apex Court in **Duli Chand** v. **Delhi Administration** [AIR 1975 ## SC 1960] held as follows: “The jurisdiction of the High Court in a criminal revision petition is severely restricted and it cannot embark upon a re-appreciation of evidence. The question whether the accused was guilty of negligence in driving the bus and death of the deceased was caused due to negligent driving is a question of fact which depends for its determination on appreciation of the evidence. Where the Magistrate, and the Additional Sessions Judge arrived. On assessment of the evidence, at a concurrent finding of fact that the death of the deceased was caused by negligent driving of the bus by the accused and the High Court even though justified in refusing to re-appreciate the evidence, reviewed the same in order to satisfy itself that there was evidence in support of the finding and that the finding was not perverse, came to the conclusion that the evidence established the death of the deceased was caused by negligent driving of bus by the accused the Supreme Court on an appeal under Article 136 refused to interfere. ## Apex Court in **Mrs.Shakila Khader** v. **Nausher Gama and** Crl.R.P.No.3122/2005 12 ## **another** [AIR 1975 SC 1324] held as follows: “The main criterion for deciding whether the driving which led to the accident was rash and negligent is not only the speed at which the car was running but the width of the road, the density of the traffic and the attempt to overtake other vehicles resulting in the car going to the wrong side of the road and causing the accident. Even if the accident took place in the twinkling of an eye it is not difficult for an eye witness to notice a car overtaking other vehicles and going to the wrong side of the road.” The principles of negligence of pedestrians while crossing the road was discussed by the Apex Court in **Balachandra Waman Pathe** v. **State of Maharashtra** [1968 ACJ 38] and ## held as follows: “There is a distinction between a rash and a negligent act. In the case of a rash act the criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequence. Criminal negligence 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. Negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. A culpable Crl.R.P.No.3122/2005 13 rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and if he had he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection. In the instance case the appellant was driving his car at a speed of 35 miles an hour, the speed permissible under the rules. No other circumstance was pointed out to show that he was driving in a reckless manner. Therefore, he cannot be said to have been running the risk of doing an act with recklessness or indifference as to the consequences. But he was undoubtedly guilty of negligence. He h ad a duty to look ahead and see whether there was any pedestrian in the pedestrian crossing. It is likely that while driving the car he was engrossed in talking with the person who was sitting by his side. By doing so, he failed to exercise the caution incumbent upon him. His culpable negligence and failure to exercise that reasonable and proper care and caution required of him resulted in the occurrence. He was therefore guilty of offence under S.304A.” **Mahadeo Hari Lokre** v. Apex Court in another decision in **The State of Maharashtra** [ AIR 1972 SC 221] held as follows: Crl.R.P.No.3122/2005 14 “If a pedestrian suddenly crosses a road without taking note on the approaching bus there is every possibility of his dashing against the bus without the driver becoming aware of it. The bus driver cannot save accident however slowly he may be driving and therefore he cannot be held to be negligent in such a case.” ## 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. (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 Crl.R.P.No.3122/2005 15 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.” Now it is clear that the question whether the revision petitioner was guilty of negligence in driving the bus at the place of occurrence and the death of the deceased was due to his negligent driving is a question of fact, which depends upon the determination on appreciation of evidence. Both the learned Chief Judicial Magistrate and the learned Additional Sessions Judge arrived on an appreciation that the death was due to the negligent driving of the bus by the revision petitioner. While High Court exercising the supervisory jurisdiction, it is a Crl.R.P.No.3122/2005 16 restricted nature and this Court cannot reappreciate the evidence for the purpose of determination whether the concurrent finding of the Courts below was right. But, I have noticed the illegality committed by the courts below, which shows that the evidence in support of the fact reached by the court below was a perverse one, which needs interference. A wrong appreciation was made by the trial Court and the appellate Court. Therefore, the concurrent finding about the guilt of the accused warranted interference. There is manifest illegality and serious miscarriage of justice while disposing the matter by the courts below. It is true that the revision petitioner attempted to stop the vehicle, but he did not stop the vehicle, at that time the deceased crossed the road and hit on her. Therefore, the evidence of PW1 and PW2 is endorsing this finding. Crl.R.P.No.3122/2005 17 In the result, conviction and sentence passed by the trial Court u/s.279 and 304A IPC are set aside. The accused is acquitted and set at liberty. The Crl.R.P. is allowed. **P.D. RAJAN, JUDGE.** acd