SHAJAHAN v. STATE OF KERALA

'C.R' ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 16[TH] DAY OF AUGUST 2022 / 25TH SRAVANA, 1944 CRL.A NO. 20 OF 2006** **AGAINST THE JUDGMENT IN SC 242/2005 OF ADDITIONAL DISTRICT AND SESSIONS COURT, FAST TRACK (ADHOC)-II, KOTTAYAM APPELLANT/1ST ACCUSED:** SHAJAHAN, S/O. ABKAR, MELETHUNDIYIL HOUSE, KUMARAMPEROOR, VADAKKEKKARA, CHITTAR, SEETHATHODU. BY ADVS. C.S.MANILAL S.NIDHEESH ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.20 of 2006 2 'C.R' ## K.BABU, J. -------------------------------------Criminal Appeal No.20 of 2006 --------------------------------------Dated this the 16[th] day of August, 2022 ## JUDGMENT This appeal arises from the judgment of conviction and sentence dated 30.12.2005 passed by the Additional District and Sessions Court, Fast Track (Adhoc)-II, Kottayam. The appellant/accused No.1 faced trial for the alleged commission of the offences punishable under Sections 304 and 395 of the Indian Penal Code. 2. The appellant was accused No.1. He was convicted under Section 304 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a term of five years. He was acquitted of the offence under Section 395 of IPC. Accused Nos.2 to 5 were acquitted of the offences alleged. 3. The prosecution case unfolded during trial is as follows: The jeep bearing No.KL 5A-3849 was subjected to a hire-purchase agreement. One Sri.Gorphy Gabriel was in possession of the jeep. Crl.A No.20 of 2006 3 The appellant and the other accused, on 13.12.2003 at 7.20 p.m., repossessed the vehicle at the instance of the hirers. The vehicle was taken from Cholathalam-Mannam road. The appellant/accused No.1 was driving the vehicle. He drove the vehicle in a rash and negligent manner. When the vehicle reached Kavali junction, the appellant/accused No.1, with the knowledge that he was likely to cause the death of the persons assembled there, drove the vehicle over the rocks and wooden logs placed across the road to prevent the vehicle from moving further and hit Sri.Kurian Mathew, who later succumbed to the injuries. 4. The prosecution examined PWs 1 to 18 and proved Exts.P1 to P15. 5. After the closure of the prosecution evidence, the statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence, they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. On the side of the defence, Exts.D1 to D6 were marked. At the closure of the trial, the Crl.A No.20 of 2006 4 appellant/accused No.1 was convicted under Section 304 of IPC and acquitted of the offence under Section 395 of IPC. 6. Heard Sri. C.S.Manilal, the learned counsel appearing for the appellant/accused No.1 and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant contended that the prosecution failed to establish culpable homicide as alleged. 8. The learned Senior Public Prosecutor has countered and submitted that the prosecution could establish the charge against accused No.1. 9. The case of the prosecution is that the appellant/accused No.1 drove the vehicle involved in this case along MundkayamPoonjar road in a rash and negligent manner with the knowledge that he was likely to cause the death of the persons standing on the road at Kavali Junction and hit Sri.Kurian Mathew, who succumbed to the injuries. 10. The Trial Court held that accused No.1 had driven the jeep at high speed and recklessly, unmindful of the consequences and in spite of seeing the hurdle on the road, he drove the jeep over it and Crl.A No.20 of 2006 5 thereby caused it to hit Kurian Mathew, the deceased. 11. The incident occurred on 13.12.2003 at about 7.20 p.m. Admittedly, accused No.1 was driving the vehicle on the MundkayamPoonjar road. It has come out in evidence that at Kavali junction, the place of occurrence, as instructed by PW2 some persons placed wooden logs and rocks across the road with the intent to obstruct the vehicle from moving further. 12. The prosecution relied on the oral evidence of PWs 2, 3 and 17 to establish its case against accused No.1. PW2 gave evidence that the appellant was driving the vehicle in a rash and negligent manner and hit against the rocks placed on the road. PW3 also has spoken about the rash and negligent driving of the vehicle by accused No.1. The evidence regarding the rashness and negligence attributed against accused No.1 was proved to be omission amounting to contradiction as provided in the explanation to Section 162 Cr.PC. The evidence of PWs 2 and 3 is, therefore, not reliable as to the allegations of rashness and negligence attributed against accused No.1. PW17 is the Investigating Officer. He has admitted in his examination in cross that at the place of occurrence, wooden logs Crl.A No.20 of 2006 6 and rocks were placed across the road with the intent to prevent the movement of the vehicle. He has further admitted that the offending jeep hit on the hindrance placed on the road. It is also relevant to note that the incident happened in the night. 13. The learned counsel for the appellant contended that the prosecution failed to establish that the appellant/accused No.1 had the knowledge that the death of Kurian Mathew was likely to happen. 14. There are three species of mens rea in culpable homicide: - (i) an intention to cause death; - (ii) an intention to cause dangerous injury; - (iii) The knowledge that death is likely to happen. 15. In the present case, the prosecution has no case that accused No.1 had the necessary intention to cause the death of the victim. The Trial Court found that accused No.1 had knowledge that the death was likely to happen. 16. The prosecution has miserably failed to establish that the appellant/accused No.1 drove the vehicle without proper care and caution. The admitted case of the prosecution is that wooden logs and rocks were placed across the road at the place of occurrence at Crl.A No.20 of 2006 7 the relevant time. This was not in the knowledge of accused No.1. Even admitting that accused No.1 was driving the vehicle at high speed but within the permissible limit, the incident can only be treated as an accident as its occurrence as a consequence of the unforeseen hurdle on the road was not so probable that a person of ordinary prudence ought, under the circumstances in which it was done, to take a reasonable precaution against it. Therefore, it is relevant to consider whether the appellant/accused No.1 is entitled to the benefit of exemption as provided in Section 80 of IPC. Section 80 reads thus: " 80. Accident in doing a lawful act. --Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution." 17. The Section exempts the doer of an innocent or lawful act in an innocent and lawful manner from any unforeseen result that may ensue from an accident or misfortune. If either of these elements is wanting, the act will not be excused on the ground of an accident. An accident is not the same as an occurrence but something that happens out of the normal or ordinary course of things. An effect is said to be accidental when the act is not done with the intention of Crl.A No.20 of 2006 8 causing it, and its occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought, under the circumstances in which it is done, to take reasonable precautions against it. The idea of something fortuitous and unexpected is involved in the word "accident". ( Per Lord Halsbury, L.C. in Hamilton Frasor & Co. v. Pandorf & Co., [(1887) 12 AC 518]. 18. In Atmendra v. State of Karnataka (MANU/SC/0254/1998: 1998 CriLJ 2838) the Apex Court observed that to claim the benefit of the provisions of Section 80, it has to be shown: (1) that the act in question was without any criminal intention or knowledge; (2) that the act was being done in a lawful manner by lawful means; and (3) that the act was being done with proper care and caution. 19. When the accused pleads the benefit of the presumption as provided in Section 80, there is a presumption against him. The burden is on him to rebut the presumption drawn against him. 20. When the burden of an issue is upon the accused, he is not, in general, called on to prove it beyond a reasonable doubt; it is sufficient if he succeeds in proving a preponderance of probability, for then the burden is shifted to the prosecution which has still to Crl.A No.20 of 2006 9 discharge its original onus that never shifts. In other words, the degree and character of the burden of proof which casts on an accused when he pleads the benefit of the presumption under Section 80 of the IPC cannot be equated with the degree and character of proof which under Section 101 of the Evidence Act rests on the prosecution. Such proof may consist of circumstances appearing in the prosecution evidence itself, as a result of cross examination or otherwise. {Vide: Kundan Lal Rallaram v. The Custodian, Evacuee Property Bombay (AIR 1961 SC 1316) , M.S.Narayana Menon Alias Mani V. State of Kerala and another [(2006) 6 SCC 39] , V.D.Jhingan v. State of Uttar Pradesh [(1996) 3 SCR 736] , Harbhajan Singh v. State of Punjab and another (AIR 1966 SC 97) and Trilok Chand Jain v. State of Delhi [(1975) 4 SCC 761)]}. 21. In the instant case, the appellant/accused No.1 could succeed in rebutting the presumption drawn against him for seeking the benefit of Section 80 of IPC. The prosecution has not succeeded in establishing the ingredients to attract the offence of culpable homicide as provided in Section 299 read with Section 304 of the IPC. The Trial Court has not considered this vital aspect. Therefore, Crl.A No.20 of 2006 10 conviction and sentence cannot be sustained. Accused No.1 is found not guilty of the offence alleged. He is acquitted of the offence under Section 304 of IPC. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS