Simon Mathew v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 27TH DAY OF SEPTEMBER 2016/5TH ASWINA, 1938** **CRL.REV.PET.NO. 2143 OF 2005 ( )** **---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.167/2000 OF ADDITIONAL SESSIONS JUDGE, FAST TRACK NO.II, PALAKKAD DATED 18-08-2005** **AGAINST THE JUDGMENT IN CC NO.701/1997 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ALATHUR DATED 24-08-2000** **----------------------** **REVISION PETITIONER(S)/ACCUSED/APPELLANT.:** **-----------------------------------------** **SIMON MATHEW, AGED 31 YEARS, S/O.MATHAI, POOVAKULATH KUZHIYIL VEEDU, AGALI,MANNARGHAT TALUK, PALAKKAD DISTRICT.** **BY ADVS.SRI.P.J.MATHEW SRI.THOMAS JOHN AMBOOKEN** **RESPONDENT(S)/COMAPLAINANT/RESPONDENT.:** **---------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. D.CHANDRASENAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. Rev.Pet. No.2143 of 2005 ---------------------------------Dated this the 27[th] day of September, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.167 of 2000 of the Additional Sessions Judge, Fast Track-II, Palakkad. He was charge sheeted in C.C. No.701 of 2007 by the Judicial First Class Magistrate Court, Alathur for the offences under Secs.279, 337, 338 and 304(A) of the Indian Penal Code ('IPC' for short). After trial, the learned Magistrate convicted the accused under Secs.279, 337, 338 and 304(A) IPC and sentenced to undergo rigorous imprisonment for six months under Sec.304(A) IPC, rigorous imprisonment for three months under Sec.338 IPC. No separate sentence was awarded for the offences under Secs.279 and 337 IPC. Against that, the accused preferred the above criminal appeal before the Sessions Court, where the learned Additional Sessions Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision petition. 2. The charge against the accused is that on Crl. Rev.Pet. No.2143 of 2005 2 14.07.1997 at 1.15 p.m., the accused was driving a jeep KL-09/C-959 in a rash and negligent manner through the Palakkad-Thrissur National Highway with passengers. When he reached at the place of occurrence, the vehicle knocked down one Radhakrishnan and one Shanmughan. As a result, they sustained serious injuries Radhakrishnan and one Chinnamma succumbed to the injuries. Alathur Police registered a crime and after completing investigation laid charge in the trial court. To prove the case, prosecution examined PW1 to PW11 and marked Exts.P1 to P8 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. 3. 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 Crl. Rev.Pet. No.2143 of 2005 3 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. 4. Learned counsel appearing for the revision petitioner contended that the accident was not due to the negligence of the revision petitioner. At the place of occurrence one child crossed the road with a bicycle and hit on the jeep and accident occurred. This was deposed by PW4, and there is no negligence from the part of the revision petitioner, hence the accused is entitled to get the benefit of doubt. 5. In view of the above argument, I have examined the oral and documentary evidence adduced in this case. The oral evidence of PW1 shows that he was studying at 7[th] standard and sustained injuries in the accident on the date of incident. He was travelling as a Crl. Rev.Pet. No.2143 of 2005 4 pillion rider and when he reached at Erattakulam junction, there was a heavy traffic and he stopped his bicycle without entering the heavy traffic. At that time, a jeep plying through the road hit on his bicycle. The evidence of this witness shows that he was travelling by the side of the road with a bicycle. PW2 supported the evidence of PW1 and identified the accused who deposed that the jeep was plying at a high speed. PW3, who is a passenger in the jeep, deposed that the jeep while overtaking another vehicle, hit against the bicycle thereafter hit against an electric post and his mother died in the accident. This witness also stated that at the place of occurrence a bicycle suddenly came to the NH road and tried to cross the road and the accident occurred. PW4 also supported the evidence of PW1 who gave Ext.P1 statement to the police which shows that the minor child suddenly crossed the road at the place of occurrence and that is why the accident occurred. 6. The rash and negligent driving of a vehicle on a public road endangering human life or likely to cause hurt or injury to another person is a serious Crl. Rev.Pet. No.2143 of 2005 5 offence. In negligence, the wrong doer breaks a positive duty and in “rashness” he breaks a negative duty. Otherwise in “rashness” the person does any act which he is bound to obtain and he breaks that negative duty and “in negligence” the person who commit a wrongful act, fails to observe a positive duty and he does not advert to the act which is his duty to do. Analysing the evidence of PW1 to PW3, PW4 and PW5 these witnesses are giving inconsistent version with regard to the occurrence. It is the necessary duty of the prosecution to prove the rash and negligent driving of the revision petitioner. The mere suspicious circumstance that the incident happened in a particular manner may not be sufficient to prove the guilt of the accused on the other hand, the prosecution has to allege and prove that the incident was due to the rash and negligent driving of the revision petitioner. 7. The apex court in **Suleman Rahiman** ## **Mulani and Another v. State of Maharashtra [AIR** ## **1968 SC 829]** stated as follows:- “ Speed alone is not the criterion for deciding rashness or negligence on the part of the driver. A motor vehicle is intended to be driven in speed. The relationship Crl. Rev.Pet. No.2143 of 2005 6 between speed and rashness or negligence depends upon the place and time. In a straight wide road, where obstructions from other vehicles or pedestrians are not there, it cannot be said that driving in speed or absence of sounding horn by themselves will amount to rashness or negligence”. If the prosecution fails to establish the rash and negligent act of the revision petitioner he is entitled to get the benefit of doubt. 8. In view of the above argument, I have examined whether there is any oral evidence to prove the rash and negligent driving of the revision petitioner. PW4, an independent witness, deposed that at the place of occurrence that a child attempted to cross the road and the incident occurred. Normally, it is the duty of the prosecution to prove that the revision petitioner was rash and negligent at the time of accident. If the evidence of PW3 and PW4 is believable, the story suggested by the accused that, at the place of occurrence, a child attempted to cross the road is a good defence. 9. The Apex Court in **Mahadeo Hari Lokre v.** ## **The State of Maharashtra [AIR 1972 Supreme Court** **221]** held that if a pedestrian suddenly crossed the road Crl. Rev.Pet. No.2143 of 2005 7 without noticing the approaching bus there is every possibility of the driver being aware of it. The bus driver cannot save however slowly he may driving and therefore he cannot be held to be negligent in such a case. Here also, the child attempted to cross the road at the place of occurrence and while saving that child the vehicle hit against another auto and the incident occurred. Therefore, the revision petitioner is entitled to get the benefit of doubt. If the prosecution fails to establish the rash and negligent act of the revision petitioner, he is entitled to get the benefit of doubt. Hence the conviction and sentence passed by the trial court under Secs.279, 337, 338 and 304A IPC are set aside. The accused is acquitted and set at liberty. This revision petition is disposed of as above. NS/30.09.2016 Sd/- **P.D. RAJAN, JUDGE** / True Copy / P.A. To Judge