Sasikumar v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 26TH DAY OF JULY 2016/4TH SRAVANA, 1938** **CRL.REV.PET.NO. 514 OF 2006 ( ) --------------------------------** **AGAINST THE JUDGMENT IN CRA NO.60/2004 OF ADDITIONAL SESSIONS COURT , FAST TRACK NO.1(ADHOC), MANJERI DATED 27-12-2005** **AGAINST THE JUDGMENT IN CC NO.91/1996 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,PARAPPANANGADI DATED 03-01-2004** **----------------------** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **SASIKUMAR, S/O.VALLI, EDAMARATH HOUSE, OZHUR, ONNECHUPPUZHA.** **BY ADVS.SRI.P.VIJAYA BHANU SRI.PRASUN.S** **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. M.G.LISHA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. R.P. No.514 of 2006 ---------------------------------Dated this the 26[th] day of July, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.60 of 2004 of the Additional Sessions Judge, Fast Track-I (Adhoc), Manjeri. He was charge sheeted by the Judicial First Class Magistrate Court, Parappanangadi in C.C. No.91 of 1996 under Secs.279 and 304(A) of the Indian Penal Code ( 'IPC' for short). The learned Magistrate convicted the accused and sentenced him to rigorous imprisonment for one year and fine of Rs.5,000/- (Rupees five thousand only) in default simple imprisonment for three months under Sec.304(A) IPC and rigorous imprisonment for three months under Sec.279 IPC. Against that, the accused preferred the above Criminal Appeal before the Additional Sessions Judge, Fast Track-I (Adhoc), Manjeri, where the learned Additional Sessions Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision Crl. R.P. No.514 of 2006 2 petition. 2. The charge against the accused is that on 10.10.1995 at 9.30 a.m., the accused had driven a jeep KLM-8821 in a rash and negligent manner so as to endanger human life from Theyyala to Ayyaya side. When the vehicle reached at Ayyayakunnu, it knocked down a minor girl child Subaibatheer Asalamiya, as a result, she sustained serious head injuries. Immediately she was removed to hospital while undergoing treatment, she succumbed to the injuries. Tanur Police registered a crime and after completing investigation, Circle Inspector, Tanur Police station laid charge in the trial court. To substantiate the allegation, prosecution examined PW1 to PW13 and marked Exts.P1 to P10 as documentary evidence. Incriminating circumstances brought out in evidence were denied by the accused while questioning him. Exts.D1 to D4 were marked in support of his defence. 3. Revisional jurisdiction is a supervisory power to correct illegality or irregularity or miscarriage of Crl. R.P. No.514 of 2006 3 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. 4. The learned counsel appearing for the revision petitioner contended that no evidence has been produced in the trial court to prove the speed of the vehicle. More over, the actual place of occurrence was not properly proved. But the learned Public Prosecutor strongly opposed the above arguments and contended that there is no dispute with regard to the above points Crl. R.P. No.514 of 2006 4 and the evidence of PW1 and PW2 is sufficient to prove the rash and negligent driving of the accused and prays to dismiss this revision petition. 4. The principle of 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. (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. 5. In this context, I have examined the evidence of occurrence witnesses. The evidence of PW1, who is an independent witness, shows that the accident happened in front of the gate of Ayyaya High School. The road lies Crl. R.P. No.514 of 2006 5 at the place of occurrence in north-south direction. PW1 stated that on 10.10.1995 at 9.30 a.m., the accused had driven the vehicle from north to south in a rash and negligent manner and it hit against the deceased minor child. As a result, she sustained serious injuries. Immediately she was removed to hospital, but she succumbed to the injuries. PW1 identified the revision petitioner and he categorically stated that the accident was due to the rash and negligent driving of the accused. Even though this witness was cross examined by the defence counsel, nothing has been brought out to discredit his evidence. PW3, another occurrence witness who supported the oral evidence of PW1. Analysing the evidence of PW1 and PW3 their direct knowledge with regard to the rash and negligent driving of the accused is admissible. It is clear that they had deposed about the actual incident witnessed at the time of occurrence and they are competent to swear about the facts seen by them. The trial court was of the view that rash and negligent driving of the accused was the cause of the Crl. R.P. No.514 of 2006 6 accident. Nothing was brought out by the defence counsel to disbelieve that evidence. While appreciating the evidence of PW1 and PW3, the rashness and negligence of the revision petitioner is proved to fasten criminal liability against the revision petitioner. 6. The main argument advanced by the revision petitioner was that the place of occurrence was not identified. PW9 prepared Ext.P3 scene mahazar and PW5 an independent witness attested Ext.P3. As per Ext.P3, the road has a width of 3.8 metres at the place of occurrence. The place of occurrence was marked as 1.52 metres east from the western tar end. The road margin has a width of 1.50 metres at the western side and 1.45 metres at eastern side. The road was straight at the place of occurrence and had a vicinity of 75 metres towards south and 60 metres towards north. No obstructions were seen at the place of occurrence to see the vehicles or the pedestrians passing through the road. Analyzing the evidence of PW1 and PW3, PW5 and PW9, I am of the view that the place of occurrence is clearly identified. Crl. R.P. No.514 of 2006 7 Nothing has been brought out in cross examination to disbelieve the place of occurrence. 7. In this context, I have examined the medical evidence. PW11 examined the injured and issued Ext.P9 wound certificate. In Ext.P9, there was head injury brainstem injury and cardio respiratory arrest. Ext.P4 is the postmortem certificate which was conducted by PW6. He noticed nine injuries and the death was due to the injuries sustained to the brain which was caused in the accident. Revision petitioner had made an attempt to show that the incident happened due to the negligence of the deceased minor child who was crossed the road at the place of occurrence. He also produced Exts.D1 to D4 in support of his defence. Even though, a contention was raised that the minor girl crossed the road at the place of occurrence, a reading of the evidence of PW1 and PW3, it is clear that the accident was due to the rash and negligent driving of the revision petitioner alone. No circumstances are brought out by the defence counsel indicating absence of rashness or negligence on the part Crl. R.P. No.514 of 2006 8 of the driver of the vehicle. In certain cases speed alone itself is not a criteria for fixing criminal liability. While driving the vehicle through a school zone area, it is the primary responsibility of the revision petitioner to drive the vehicle with due care and caution in order to avoid accidents and injuries to any pedestrians. In the absence of any care and caution, I am of the opinion that the finding recorded by the trial court is only to be confirmed. There is no merit in this revision petition and it is dismissed accordingly. Sd/- **P.D. RAJAN JUDGE** / True Copy / P.A. To Judge NS/04/08/2016