High Court of KeralaSingle Judge2012-09-24Revision Petition dismissed; conviction and sen...

Sivan v. State of Kerala

Case / Petition Number:Crl.Rev.Pet.No. 688 of 2002

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. S. Gopinathan
Judgment Date: 2012-09-24
Court Decision / Holding: The revision petition fails. Accordingly, it is dismissed. The revision petitioner is directed to surrender before the trial court, which shall see the execution of sentence and report compliance.
Final Disposition: Revision Petition dismissed; conviction and sentence upheld; petitioner directed to surrender for execution.

Parties to the Case

Appellants / Petitioners

Sivan, s/o Subrahmanian, ThaiKKalath (H), Karlam Village, Thrissur

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri. M.R. Venugopal
• Smti. Dhanya P. Ashokan

Counsels for Respondents

• Ms. Madhu Ben (Public Prosecutor)

Case Synopsis & Summary

The Kerala High Court, in a criminal revision, upheld a conviction and sentence of Sivan (accused) for offences under sections 279, 337 and 304-A IPC arising from a road accident on 29 June 1995. The revision petitioner was prosecuted for rash and negligent driving that led to the death of a child and injuries to the father and mother of the child as they pushed a bicycle loaded with their daughter Gomathi in a basket fixed on the front. The trial court found him guilty; this conviction and six-month imprisonment with Rs.1000 fine were affirmed on appeal by the Sessions Court. In this revision, the petitioner challenged the driver’s identity and the negligence finding. The High Court examined the evidence of eyewitnesses PW1 and PW2, the scene mahazar Ext.P5 showing the road width and position of the vehicle relative to the crash, and Ext.P4 the RTA report indicating no mechanical defect. The court rejected the defense’s reliance on a prior decision Vijayan v. State of Kerala to question negligence. It held that the evidence established negligence and that the driver was the person identified by the witnesses. On sentencing, the court observed a lengthy delay in disposal is not a ground for leniency. Accordingly, the revision petition was dismissed, and the petitioner was directed to surrender for execution of the sentence.

Provisions of Law Cited

Section 279 IPCSection 337 IPCSection 304A IPCSection 313 CrPC

Submissions & Arguments

Contentions of Appellants / Petitioners

Learned counsel for the revision petitioner argued that the prosecution has failed to prove negligence beyond reasonable doubt and that the identification of the driver as the revision petitioner was not established beyond reasonable doubt. It was contended that the circumstances of the accident did not show the van was driven at an excessive speed or in a manner constituting rashness. Counsel relied on Vijayan v. State of Kerala (2010 KHC 551) to urge that without proof of the precise spot and sequence of events the negligence finding could not be sustained. The defence highlighted that Ext.P5 scene mahazar established certain dimensions but did not necessarily prove the exact act of negligence, and argued that mechanical defect was not established by Ext.P4 from the Joint RTO report. Regarding mercy, it was contended that the nearly 17-year-old incident could justify leniency. The plea of total denial at trial and cross-examination of the eyewitnesses was noted. The main thrust was to challenge the link between the alleged rash driving and the death of the child, and to press for acquittal or reduction of sentence.

Contentions of Respondents

Learned Public Prosecutor contended that the prosecution proved the rash and negligent driving by the accused, that PW1 and PW2 identified the revision petitioner as the driver, and that Ext.P5 scene mahazar and Ext.P4 report corroborated the conclusion that the vehicle could be stopped within a short distance, implying negligence. It was argued that there was no mechanical defect, and the evidence established that the bicycle occupants were on the extreme side of the road and that the tempo van hit from behind, causing the death of the child and injuries to the parents. The courts below properly evaluated the evidence, and the sentence was not disproportionate. The reliance on Vijayan was misplaced as the facts differ from the current case. The State urged that the revision petition be dismissed and the conviction and sentence confirmed.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Vijayan v. State of Kerala	2010 KHC 551	Distinguished	The High Court distinguished Vijayan v. State of Kerala as inapplicable to the present case on facts (absence of spot evidence and different circumstances), limiting its precedential value for this case.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Sivan v. State of Kerala and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN** **MONDAY, THE 24TH DAY OF SEPTEMBER 2012/2ND ASWINA 1934** **Crl.Rev.Pet.No. 688 of 2002 ( )** **------------------------------CRA.239/1999 of ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR CC.757/1995 of J.M.F.C.-I,THRISSUR** **REVISION PETITIONER/REVN.PETITIONER/APPELLANT/ACCUSED:: ---------------------------------** **SIVAN, S/O.SUBRAHMANIAN, THAIKKALATH (H), KARLAM VILLAGE, THRISSUR.** **BY ADVS.SRI.M.R.VENUGOPAL SMT.DHANYA P.ASHOKAN** ## **RESPONDENT/RESPONDENT/COMPLAINANT::** **----------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **PUBLIC PROSECUTOR, MS.MADHU BEN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **P.S.GOPINATHAN, J. -----------------------------Crl.R.P.No.688 OF 2002** ## **-------------------------------Dated this the 24[th] day of September, 2012** ## **O R D E R ~~~~~~~** The revision petitioner was prosecuted by the Circle Inspector of Police, Cherpu Police Station, in Crime No.130/95, accusing offences under Section 279, 337 and 304 A IPC with an allegation that at 11.30 a.m., on 29.6.1995, the revision petitioner drove a tempo van bearing Reg. No.KL-8C/1575 along Iringalakkuda-Thrissur road in a rash and negligent manner so as to endanger human life and at Poochunnippadom, the van hit on the rear of a bicycle, which was pushed by PW1 and his wife, PW2, with their kid, Gomathy aged 1 ½ years, in a basket fixed on the front part of the bicycle. As a result of hit, PW1 fell down to the left side of the road and sustained simple hurt. The child fell down to the right side of the road and the rear wheel of the van ran over the head of the child causing instantaneous death. 2. The revision petitioner pleaded not guilty before the trial court. Therefore, he was sent for trial. On the side of the Crl.R.P.No.688/2002 2 prosecution, PWs 1 to 11 were examined and Exts.P1 to P6 were marked. After closing the evidence for the prosecution, he was questioned under Section 313 of the Code of Criminal Procedure. He denied the incriminating evidence and advanced a plea of total denial. On appraisal of the evidence, the learned Magistrate arrived at a conclusion of guilty. Consequently, he was convicted and sentenced to rigorous imprisonment for six months and a fine of Rs.1,000/- with a default sentence of simple imprisonment for one month. 3. Aggrieved by the above conviction and sentence, he preferred Crl.A.No.239/1999 before the Sessions Judge, Thrissur. The 3[rd] Additional Sessions Judge, to whom the appeal was made over, by judgment dated 12.4.2002, while confirming the conviction and sentence, dismissed the appeal. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this Revision Petition is preferred. 3 Crl.R.P.No.688/2002 4. I have heard Adv. Sri.M.R.Venugopal, the learned counsel appearing for the revision petitioner and Ms.Madhu Ben, the learned Government Pleader. The learned counsel for the revision petitioner took me through the judgment impugned as well as the evidence of PWs 1 and 2 who are the only occurrence witnesses. 5. The factum of the accident is not at all disputed. The learned counsel confined his argument regarding the identity of the assailant and the negligence aspect. 6. PWs 1 and 2 are harmonious that they were pushing the bicycle with their daughter, Gomathi, in the basket fixed infront of the bicycle, along the northern side of the road from west to east and that the van driven from back hit on the rear of the bicycle and as a result, PW1 fell down to left and sustained injuries. Their daughter, Gomathi, fell down to the right whereupon the van ran over the head of the child. Ext.P5, the scene mahazar, would show that the road at the place of occurrence was having a width of 5.83ms and that the accident Crl.R.P.No.688/2002 4 spot was 85cms towards south from the northern tar end. Regarding the spot of occurrence, there is no quarrel. Therefore, the courts below were correct in appreciating the evidence and right in coming to a conclusion that PWs 1 and 2 were along the extreme side of the road and there is little contribution from the side of PWs 1 and 2 to cause the accident. Ext.P5, scene mahazar, also would show that the van could be stopped within 2.5ms from the spot of occurrence. It would indicate that the van was either not driven at a high speed but the sheer negligence of the driver caused to hit on the bicycle or it was driven at a non-controllable speed because of which he couldn't stop the vehicle without hitting the bicycle. Either way, the factum of the accident itself would speak volumes about the negligence. It cannot be said that PWs 1 and 2 suddenly rushed to the road with the bicycle. Ext.P4 report issued by PW6, the Joint R.T.O., would show that the vehicle had no mechanical defect. Therefore, mechanical defect cannot be attributed as a cause for the accident. The learned counsel for the revision petitioner also canvassed my attention to the decision reported in Vijayan v. State of Kerala [2010 KHC 551], in support of his Crl.R.P.No.688/2002 5 argument that there is no negligence on the side of the driver of the van. The decision reported would show that it was a case of head on collision and the scene mahazar was not brought in evidence. Therefore, there was no evidence regarding the spot of the accident and it was rather difficult to decide the negligence without proof of the spot of the occurrence as it was a case of head on collision. So, the above decision, which is a precedent on the facts, has no application with the case on hand. The conviction under challenge is unassailable. Negligence on the side of the driver of the van is apparent. I find that the courts below had committed no error, illegality or impropriety in coming to a conclusion regarding negligence on the side of the driver. 7. Ext.P3, wound certificate issued by PW5, would show that PW1 had sustained small abrasion over the leg and hand. Ext.P2, post mortem certificate issued by PW5 coupled with the evidence of PW5, would show that the child died due to the head injury. Regarding the cause of death of the child and the injuries sustained to PW1, there is no quarrel. Therefore, the courts Crl.R.P.No.688/2002 6 below had correctly appreciated the evidence and rightly come to a conclusion that as a result of the accident PW1 sustained simple injuries and the child of PWs 1 and 2 sustained head injury to which the child succumbed. 8. Regarding the identity of the revision petitioner as the driver, there is harmonious evidence of PWs 1 and 2. Both of them had identified the revision petitioner as the driver of the van. They would depose that soon after the accident, the van stopped a little ahead and the revision petitioner alighted down from the van and they had identified him. Their evidence identifying the revision petitioner as driver is not at all artificial but natural. It is pertinent to note that PWs 1 and 2 belong to Tamil Nadu. There is no suggestion that they had got any axe to grind against the revision petitioner to falsely implicate him after screening the real offender. The finding of the courts below that the revision petitioner was the driver of the van is in tune with the evidence on record. I find no reason to interfere. Conviction is based upon cogent evidence. Crl.R.P.No.688/2002 7 9. Regarding the sentence, the learned counsel for the revision petitioner submitted that incident occurred 17 years back and therefore, the revision petitioner is entitled to leniency. It is seen that the trial court disposed of the matter within four years after the accident. The appellate court disposed of the appeal within three years. Major part of the delay occurred before this Court. Prosecution had contributed nothing to delay the disposal of this revision petition. Therefore, delay in disposal of the revision petitioner cannot be taken as a ground for lenient sentence. Having due regard to the nature of the offence, the sentence awarded by the trial court and confirmed in appeal is neither harsh nor excessive. Therefore, the sentence also requires no interference. 10. In the result, the Revision Petition fails. Accordingly, it is dismissed. The revision petitioner is directed to surrender before the trial court, which shall see the execution of sentence and report compliance. ## **(P.S.GOPINATHAN, JUDGE)** ## **ps/25/9**