Sibi Joseph v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **MONDAY, THE 10TH DAY OF SEPTEMBER 2012/19TH BHADRA 1934** **Crl.Rev.Pet.No. 1174 of 2001 ( ) -------------------------------CRA.96/2000 of ADDL. SESSIONS COURT,ALAPPUZHA. CC.842/1998 of J.M.F.C., RAMANKARI** ## **REVISION PETITIONER(S):** **----------------------** **SIBI JOSEPH, S/O. CHACKO JOSEPH PALATHARA VEEDU, WARD NO.2 VAZHAPPALLY PANCHAYAT, CHENGANACHERRY** **BY ADVS.SRI.S.VIJAYAKUMAR** **K. SASIKUMAR** **COMPLAINANT(S):** **---------------** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **BY ADV. PUBLIC PROSECUTOR, SMT. JASMINE V.H** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** das ## **N.K.BALAKRISHNAN, J. ==================** ## **Crl.R.P. No. 1174 of 2001** ## **========================= Dated this the 10[th] day of September, 2012** ## **ORDER** This revision petition is directed against the concurrent verdict of conviction and sentence passed against the petitioner. He was convicted of the offences punishable under Secs.279 and 304-A or IPC and was sentenced to undergo R.I for six months and to pay fine of Rs.2,000/- for the offence under Sec.304(A) of IPC and to pay a fine of Rs.1,000/- for offence under Sec.279 of IPC and in default to undergo S.I for three months. 2. On 03.09.1998 at about 3.00PM, the petitioner, who is the driver of Jeep KL 3B 7727 was driving the same from north to south. The deceased Jayasankar was riding a motor cycle KL 4C 4387 from south to north. The jeep driven by the petitioner, according to the prosecution, hit the motor cycle causing serious injuries Crl.R.P.No.1174/2001 : 2 : to the motor cyclist to which later he succumbed. The prosecution alleged that the jeep was driven by the petitioner in a rash or negligent manner endangering human life and hit the motor cyclist and thus the petitioner has committed the offence as mentioned above. 3. PW1 to PW12 were examined and Exts.P1 to P9 were marked. One site plan was marked as Ext.D1. 4. Learned Magistrate relied upon the oral testimony of the eyewitnesses PW1, 2 and 6 to hold that the jeep was driven by the petitioner in a rash or negligent manner. On a re-appreciation of the evidence, the learned Sessions Judge, concurred with the view taken by the court below and thus the appeal was dismissed. 5. Learned counsel for the petitioner submits that the evidence adduced on the side of the prosecution was not appreciated properly. The place of incident is actually to the south of a Kurisady. It is argued that the witnesses Crl.R.P.No.1174/2001 : 3 : have stated that the incident took place to the north of that Kurisady. That contention does not appear to be correct. Witnesses have also said that the incident took place to the south of Kurisady. It is important to note that the witnesses have stated the distance from the Kurisady to the actual place of incident from memory, after more than one year of the incident. The witnesses are not expected to have a photographic memory of the actual incident spot and to state with precession on a later point of time as to the distance from a particular point to the place of incident. Therefore, the alleged discrepancy in the distance from the Kurisady to the place of incident cannot be blown out of proportion to hold that the evidence was not property appreciated by the two courts below. 6. The other argument advanced by the learned counsel for the petitioner is that immediately prior to the incident, the deceased who was riding the motor cycle Crl.R.P.No.1174/2001 : 4 : had, while driving the motor cycle talked with one of the witnesses who was the driver of the autorickshaw. Hence, the argument is that the deceased was negligent. The other point is that the prosecution did not produce the driving licence of the deceased. It is pointed out as a ground to contend that the prosecution has failed to prove the rashness or negligence required to attract the offence under Sec.304-A of IPC. That argument is also resisted by the learned Public Prosecutor pointing out that it is the duty of the driver of the jeep to avert the accident. Admittedly there were no other vehicles which prevented the sight of the accused, while driving the jeep. No other vehicle had overtaken any of the vehicles. The evidence would show that the deceased had stopped his motor cycle and had conversation with the driver of the autorickshaw and it was only thereafter the deceased proceeded further. It has not come in evidence that the deceased had over taken the autorickshaw at or Crl.R.P.No.1174/2001 : 5 : immediately prior to the incident. 7. Tar road at that place has a width of 3.67 metres. The place of incident is 2 meter to the west of the eastern edge of the tar road. Therefore, according to the defence, the place of incident is almost in the middle of the tar road. It is also argued that the rider of the motor cycle had enough space on the western side so that he could have avoided the accident. Contributory negligence even if there is any, is not a defence available to the accused. If the prosecution proves that the accused had not taken reasonable care to avert the accident and that if the accident did take place because of the rashness or negligence of the driver of the vehicle, then he can not avoid the penal consequence. All these aspects were highlighted by the two courts below to hold that the petitioner has committed the offence as mentioned above. Conviction is thus confirmed. 8. Learned counsel for the petitioner submits that Crl.R.P.No.1174/2001 : 6 : the incident took place about 14 years back and so the jail sentence may be avoided. The decision in **Dalbir Sing** case (2000 (5) SCC 82) was followed by the Apex Court in the decision **State of Punjab v. Balwinder Sing & Others** (2012(2) SCC 182) where it was held: “1. When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic.” 9. The ratio therein was reiterated in **B.Nagabhushanam v. State of Karnataka** (2008 (5) SCC 730. Considering the increased number of road accidents, the Apex Court reminded the criminal courts Crl.R.P.No.1174/2001 : 7 : dealing with the offences relating to motor accidents that they cannot treat the nature of the offence under Sec.304 A of IPC as attracting the benevolent provisions of Sec.4 of the Probation of Offenders Act, 1958. In that case, the Apex Court while setting aside the impugned order of the High Court, imposed a sentence of R.I for six months and a fine of Rs.5,000/-. However, considering all the aspects, the substantive sentence awarded for the offence punishable under Sec.304A of IPC is reduced to R.I for three months. Other part of the sentence is confirmed. The learned Magistrate will take steps to execute the sentence immediately. Sd/- ## **N.K.BALAKRISHNAN, JUDGE** das // True copy // PA to Judge