Shiju Mathew v. State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.UBAID** **FRIDAY, THE 23RD DAY OF JUNE 2017/2ND ASHADHA, 1939** **CRL.A.No. 292 of 2009** **-----------------------** **AGAINST THE JUDGMENT IN S.C NO. 260/2008 of VI ADDL. SESSIONS COURT, ERNAKULAM DATED 31-01-2009** **APPELLANT/ACCUSED::** **-------------------** **SHIJU MATHEW, S/O.MATHEW, KODUVELIL HOUSE, NALAKAMBE, CHELACHUVADU KARA, KANJIKUZHI VILLAGE, THODUPUZHA, IDUKKI.** **BY ADV. SRI.S.NIRMAL KUMAR** **RESPONDENT/COMPLAINANT: ------------------------** **STATE REPRESENTED BY C.I. OF POLICE, ALUVA POLICE STATION IN CRIME 1058/2007 OF ALUVA POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.C.S.HRITHWIK** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ab** **P.UBAID, J. --------------------------------------Crl.A No.292 of 2009** **---------------------------------------** Dated this the 23[rd] day of June, 2017 ## **J U D G M E N T** The appellant herein challenges the conviction and sentence against him under Section 304 of the Indian Penal Code in S.C No.260/2008 of the Court of Session, Ernakulam. A Vicar aged about 80 years was hit down and run over on the Ernakulam-Aluva Palace Road by the Bus No.KL7/BB 4734, driven by the appellant herein. Regarding the said accident, wherein the Vicar died on the spot, the police registered a crime on the complaint of one Anand George, who had witnessed the accident. After investigation, the police submitted final report in court under Section 304 IPC on the allegation that the accused caused the death of the Vicar by his act of extreme rashness and negligence with the full knowledge of consequence that such act will cause the death of pedestrians. On committal the case came up before the Court of Session, from where it was made over to the learned VI Additional Sessions Judge, Ernakulam, for trial 2 Crl.A No.292 of 2009 and disposal. 2. The accused appeared before the trial court and pleaded not guilty to the charge framed against him under Section 304 of the IPC. The prosecution examined 14 witnesses in the trial court and proved Exts.P1 to P13 documents. When examined under Section 313 Cr.P.C the accused denied the incriminating circumstances and projected a defence that the death of the Vicar was not in fact negligently caused by him, and he practically contented that the unfortunate incident happened only because the Vicar carelessly crossed the road. The accused did not adduce any evidence in defence. On an appreciation of the evidence, the trial court found the accused guilty under Section 304 of the IPC. On conviction he was sentenced to undergo simple imprisonment for two years and to pay a fine of 10,000/- by judgment dated 31.1.2009.₹ Aggrieved by the judgment of conviction, the accused has come up in appeal. 3. On hearing both sides and on a perusal of the entire materials, including the evidence given by the material witnesses I find that the conviction in this case under under Section 304 IPC cannot be sustained. The material witnesses examined by the prosecution are PW1 to PW3. Of them PW1 is 3 Crl.A No.292 of 2009 the witness who gave the first information statement, and PW3 is the driver of the Vicar. PW2 is another person who had been along with PW1 near the spot of accident. 4. On a perusal of the evidence given by PW1 to PW3 who are the material witnesses, I find that all the witnesses are consistent regarding the actual cause of death, that the bus driven by the accused happened to hit down and run over the body of the Vicar, solely due to the rashness and negligence on the part of the driver. A conviction can be made under Section 304 IPC only if the act of the accused that resulted in death was done or committed voluntarily, or with the full knowledge of the consequence of his act, that it will definitely cause death in ordinary circumstances. Causing death by extreme rashness or negligence will never come under Section 304 IPC. Such an act will come only under Section 304A IPC. 5. The accused was driving his vehicle from west to east and the spot of accident is on the tarred road at Aluva. To locate the exact spot of accident the scene mahazar prepared by the police is not helpful. However, the material witnesses are consistent that the exact spot of accident is 1.5 meters to the north from the southern road margin. They are consistent that the unfortunate accident occurred when the deceased crossed Crl.A No.292 of 2009 4 the road. All the witnesses are consistent that the accused came in terrific speed blowing the horn continuously, and in the very same speed he quite rashly and negligently over took other vehicles, and in this process the bus happened to hit down the Vicar. Every pedestrian is entitled to cross the road, but the question is whether the accident occurred solely due to the carelessness on the part of the pedestrian who crossed the road, or whether it was caused due to the rashness or negligence on the part of the driver. The evidence of the material witnesses shows that at the spot of accident, terrific or culpable speed is dangerous. Anyway, I find that the necessary elements of the offence under Section 304 IPC are not there in the evidence given by the material witnesses. For such a prosecution the accused must have caused the death of the Vicar by extreme rashness and negligence on his side with the full knowledge of consequence that it will definitely cause an accident claiming the life of individuals on the public road in the given circumstances. Every act of rashness and negligence in driving vehicles, or every such act that caused the death of any pedestrian or passenger cannot be brought under Section 304 IPC. If it is merely a case of rashness and negligence causing the death of a pedestrian or passenger, it will come 5 Crl.A No.292 of 2009 only under Section 304 A IPC. 6. On an examination of the evidence of PW1 to PW3 I find that all the material witnesses had in fact identified the driver of the vehicle at the spot of accident itself, and all are consistent that immediately after the accident the accused ran off and escaped. All the witnesses are consistent that they had seen the driver stepping down from the driver's seat and running away from the scene of accident. In court all the witnesses identified the accused as the driver who caused the accident and escaped from the scene of incident. Had he been careful, or had he been in normal speed, he could have very well seen the passenger crossing the road from a distance and he could have very well averted the accident. This is the gist of the evidence given by PW1 to PW3. Thus I find that a clear case of causing death by rashness and negligence stands very well proved in this case. 7. Now the question is whether the conviction in this case under Section 304 IPC can be altered to one under Section 304A IPC. The learned counsel for the appellant cited a decision of this Court in **Vijayan v. State of Kerala (1991(1) KLT 325),** wherein a conviction made by the trial court under Section 304A IPC in a prosecution brought under Section 304 6 Crl.A No.292 of 2009 IPC was set aside by the High Court on the ground that the two are different and distinct offences, and that in a case where causing death by a voluntary act is alleged, and the necessary elements of such offences are lacking, only a conviction under Section 323 IPC is possible. 8. This is a case where the final report submitted by the police itself does not contain the necessary requirements under Section 304 IPC. The very allegation in the final report is that the accused caused the death of the Vicar by his rashness and negligence, or by driving his vehicle rashly and in a zig-zag manner on the public road. This is the way in which the trial court also framed charge. On a reading of the court charge I find that the accused was called upon to answer an allegation that he caused the death of a pedestrian who was crossing the road, by his extreme rashness and negligence. Though the section of law quoted in the police charge and also in the court charge is Section 304 IPC, legally and practically the charge framed by the court, and also the allegation with respect to which the accused is called upon to answer, is that he caused the death of a person by extreme rashness and negligence. In **Prabhakaran v. State of Kerala (2007(3) KLT 400 (SC)** the Hon'ble Supreme Court, in an identical case where the accused Crl.A No.292 of 2009 7 was convicted under Section 304 IPC, altered the conviction to one under Section 304 A IPC on the finding that the evidence in the said case revealed only the essentials of the offence under Section 304A IPC. The decision of the Hon'ble Supreme Court in **Prabhakaran's** case can very well be applied in this case. This is also a case where the prosecution alleged the offence under Section 304 IPC, but the offence proved is only under Section 304A IPC. 9. As already observed this is not a case where the prosecution brought a clear case under Section 304 IPC. The very final report shows that practically the allegation would come only under Section 304A IPC. The very material question is what are the allegations contained in the court charge, or what are the allegations, the accused is called up to answer. If the allegations in the final report and also in the court charge constitute only the essential elements of Section 304A IPC, that means, the accused is called upon to answer a charge under Section 304A IPC practically, though the section of law is wrongly quoted in the charge. Anyway, in view of the decision of the Hon'ble Supreme Court in **Prabhakaran'** s case I find that the conviction in this case can very well be altered to one Section 304 A IPC. 8 Crl.A No.292 of 2009 10. Whether it is Section 304 IPC or Section 304A IPC, what is prominently and essentially involved is causing the death of a person. Causing the death of a person by a voluntary act will come under Section 304 IPC, whereas causing the death of a person by an act of negligence or rashness will come under Section 304A IPC. I find that on the basis of the clear evidence proving the essentials of the offence punishable under Section 304A IPC, the conviction can very well be altered. 11. I find nothing to show that there was any flaw or irregularity in the investigation conducted by the investigating officer in this case. The formal evidence given by the other witnesses need not be discussed in the above circumstances. 12. Though the trial court convicted the accused under Section 304 IPC, the sentence imposed is the maximum for the offence punishable under Section 304A IPC. The accident occurred not just because the pedestrian crossed the road. The accused had also a duty in law to drive the vehicle safely and carefully. Had he done so, he could have averted the accident. Anyway, I feel that imprisonment for four months will be the adequate sentence in this case in the particular facts and circumstances. The accused was at his prime youth, at the time of the accident, and it is a fact that his license was suspended 9 Crl.A No.292 of 2009 for two years by the competent authority, immediately after the accident. In the above circumstances it would be unjust to impose a severe sentence. In the result, this appeal is allowed in part. The conviction against the appellant in S.C No.260/2008 of the court below will stand altered to one under Section 304A IPC in exercise of the powers under Section 386(b) of the Cr.P.C. Accordingly, the sentence imposed by the court below under Section 304 IPC will stand set aside, and in its place a sentence of rigorous imprisonment for four months is imposed by this Court under Section 304A IPC. The fine sentence imposed by the court below is maintained subject to the modification that it shall be under Section 304A IPC. However, the default sentence will stand reduced to simple imprisonment for one month. The accused will get the benefit of set off as already ordered by the trial court. Sd/- **P.UBAID, JUDGE** //True Copy// P.A to Judge ab