Subash v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **MONDAY, THE 24TH DAY OF SEPTEMBER 2012/2ND ASWINA 1934** **Crl.Rev.Pet.No. 1999 of 2004 ( )** **-------------------------------CRA.323/2001 of ADDL.SESSIONS COURT (ADHOC)-II, ALAPPUZHA CC.48/1998 of J.M.F.C.,AMBALAPUZHA** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **SUBASH, S/O. KUNJUKUNJU, PUTHENCHIRA VEEDU, WARD NO.X, PUNNAPPRA.** **BY ADVS.SRI.V.V.RAJA SRI.M.T.SURESHKUMAR** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **--------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** acd ## **S. SIRI JAGAN, J.** ------------------------------------------- ## Crl.R.P. No.1999 of 2004 ---------------------------------------------Dated this the 24[th] day of September, 2012 ## **ORDER** The petitioner in this criminal revision petition is the accused in C.C.No.48/1998 before the Judicial First Class Magistrate's Court, Ambalapuzha. The prosecution was one under Sections 279 and 304(A) of the Indian Penal Code and Section 56 read with Section 192 of the Motor Vehicles Act. The petitioner was convicted and sentenced to undergo simple imprisonment for six months under Section 279 of the Indian Penal Code, simple imprisonment for one year under Section 304(A) of the Indian Penal Code and to pay a fine of Rs. 100/- under Section 56 read with Section 177 of the Motor Vehicles Act with a default sentence of two days' imprisonment. The petitioner filed Crl.Appeal No.323/2001 before the Additional Sessions Judge, Fast Track (Ad Hoc-II), Alappuzha, who dismissed the appeal. The petitioner is challenging the judgments of the courts below. 2. The prosecution case is as follows:- On 20.9.1997, at about 7 a.m the accused drove KL-04/C-4031 Ambulance van Cr.R.P.No.1999/04 2 without a fitness certificate in a rash and negligent manner so as to endanger human life, along the Kollam-Alappuzha National High Way from north to south in over speed and when it reached at a place 6.20 meters north-east of the concrete electric post No.PNH-10 installed on the western side of the NH in ward No.8 of Punnapra Panchayat, caused the vehicle to hit against one Shylendran and one Tony Aloshious, who were travelling in their bicycles causing them to fall down and sustain fatal head injuries. They were taken to the Medical College Hospital, Alappuzha, and they succumbed to the injuries sustained to them. Thus the accused committed offences under Section 279 and 304(A) IPC and Section 56 read with Section 192 of the Motor Vehicles Act. 3. The petitioner's contention is regarding the identity of the accused. The petitioner contends that there was no sustainable identification of the petitioner as the person who was driving the offending vehicle at the time of the accident. The petitioner relies on the alleged discrepancies in the deposition of the witnesses, who identified the petitioner as the Cr.R.P.No.1999/04 3 driver, who was driving the vehicle at the time of the accident. He takes me through the evidence of PWs 1, 2 and 6 as well as PWs 13 and 14. The petitioner submits that although the witnesses identified the petitioner standing in the dock as the driver of the vehicle at the time of the accident, they did not mention the name of the petitioner in the FI statement or in their statement before the Police. According to him, in cross examination PWs 1 and 2 categorically admitted having seen the petitioner in the Police Station on the date of accident while they went to the Police Station to give statements. Despite the same, the petitioner was arrested only on the next day of the accident, which has not been properly explained by the Investigating Officer. No explanation is forthcoming as to why if the accused was seen at the Police Station by those witnesses, they did not point out the petitioner as the accused to the Police. According to the learned counsel for the petitioner, that is a very suspicious circumstance to doubt the veracity of the identification of the petitioner as the driver of the offending vehicle by PWs 1 and 2. He also tries to pick Cr.R.P.No.1999/04 4 holes in the evidence of PW6, who is none other than the Superintendent of the Medical College Hospital, Alappuzha and the Secretary of the Dhanwanthari Service Society, the owner of the Ambulance in which capacity he was the registered owner of the vehicle. The learned counsel submits that PW6 in cross examination admitted that he assumed that the petitioner was driving the vehicle at the relevant time, only because he was on duty in the vehicle the day previous to the accident. Therefore, according to the learned counsel for the petitioner, based on the evidence of PW6, the lower courts could not have come to the conclusion that the prosecution had succeeded in identifying the petitioner as the driver of the offending vehicle at the time of the accident. He submits that if at all what the prosecution has succeeded in anything that was only to put some suspicion that the petitioner may have been the driver of the vehicle which cannot take the place of proof. For that proposition, the petitioner relies on the decision of the Supreme Court in _**Kailash Gour and Others**_ v. _**State of Assam**_ [AIR 2012 (SC) 786]. He points out that 5 Cr.R.P.No.1999/04 although the FI statement was recorded and the FIR prepared on 20.9.1997, the same was produced in court only on 22.9.1997 at 10.30 a.m. He would submit that the delay in producing the FIR before the Court would certainly constitute a situation which would go to seriously doubt the veracity of the prosecution case, because, on account of the delay the chances of embellishment therein cannot be ruled out. He submits that the fact that the FI statement does not reflect the fact that PWs 1 and 2 saw the petitioner in the Police Station on 20.9.1997 is a strong circumstance, which is sufficient to doubt the correctness of the prosecution case. The petitioner, therefore, submits that the prosecution has not succeeded in proving beyond a reasonable doubt that the petitioner was the driver of the vehicle at the time of accident. Consequently, the petitioner is entitled to an acquittal at least granting him benefit of doubt, is the contention of the petitioner. 4. The learned Public prosecutor submits that the circumstances mentioned by the petitioner are not circumstances, which would put any reasonable doubt Cr.R.P.No.1999/04 6 whatsoever on the categoric evidence of PWs 1, 2, 4 and 6. He points out that PW1 and PW2 do not say that they saw the petitioner in the Police Station before they gave their statements to the Police. He further points out that PW2 categorically states that he did not state to the Police the fact that he saw the accused in the Police Station only because he was not asked any questions in respect thereof. Therefore, there is no circumstances, which warrant doubting of the evidence of PWs 1, 2, 4 and 6. He submits that PWs 1, 2 and 4 categorically identified the petitioner as the driver of the offending vehicle at the time of the accident and they saw him just before the accident and after the accident as well fleeing the scene of occurrence. The learned Public Prosecutor further points out that in chief examination, PW6, the registered owner of the vehicle (Superintendent of the Medical College Hospital, who is also the Secretary of the Dhanwanthari Service Society, which is the owner of the vehicle in question) has categorically stated that the petitioner was the driver on duty in the Ambulance the day previous to the date of accident Cr.R.P.No.1999/04 7 and such a driver would continue to be on duty till the next day when the driver comes and remits the hire of the vehicle. The fact that, he, in cross examination, submitted that he assumed that the petitioner was the driver of the vehicle at the relevant time only because the petitioner was on duty the previous day, does not in any way change his categoric evidence during chief examination. According to the learned Public Prosecutor, the evidence of the eye witnesses PWs 1, 2 and 4 read with the evidence of PW6 proves beyond any reasonable doubt that the petitioner was the driver of the vehicle at the time of accident. 5. I have considered the rival contentions in detail. 6. As I have stated in the beginning, the only ground advanced before me by the petitioner is the sustainability of the identification of the petitioner as the driver of the offending vehicle at the time of the accident. PW1 is an eye witness. In his evidence, he categorically states thus: ഇട�ച Ambulance van ന�റ ന�പര KL-4C/4031 എന�ണ�. ആ van ഓട�ച�ര�ന ആള�നന കണ�ലറ�യ��. അയ�ള�ണ� കക�ടത�യ�ല പപത�ക#ട�ല ന�ലക�നത� . Witness identified the accused in this case as the Cr.R.P.No.1999/04 8 driver of the Ambulance van involved in this case. xxx xxx xxx സ�ഭവത�ന� നത�ട�� മ�ന�� സ�ഭവത�ന� ക+ഷവ�� ഡപ.വനറ ഞ�� കണ�. ഇട�യ�ക�� മ�ന�� ഇട�കഴ�ഞ�� ഞ�� ഡപ.വനറ കണ �. ആ�ബ�ല�സ�ല മററ�ര �� ഇര�ക�നത� ഞ�� കണ�ല. ആ�ബ�ല�സ�ല മററ�ര�� ഇല�യ�ര�ന�. സ�ഭവ� കഴ�ഞ ഉടനന ഡപ.വര വണ�യ�ല ന�ന�� ഇറങ� ഓട �നത�കണ�. വണ� ഓട�നക�ണ�ര�നക6�ഴ�ണ� സ�ഭവത�ന�മ�ന� ഡപ.വനറ കണത�. ഡപ.വര പട�ഞ�നറ കറ�.�ല ന�ന �� ഡ7കവയ�കലയ�ക� ഓട�ക6�ക �നത� കണ �. ഞ�� പ�നപപ കപ�ല8സ� ക9ഷന�ല നമ�ഴ�നക�ട�ക�� ന:നക6�ള പപത� ഡപ.വര കപ�ല8സ� ക9ഷന�ല ഉണ�യ�ര�ന�. ## PW2, another eye witness of the accident categorically says in his evidence thus: “ ............... അത� ഓട�ച�ര�ന ആള�നന കണ�ലറ�യ��. അയ�ള�ണ� കക�ടത�യ�ല പപത�ക#ട�ല ന�ലക �നത�. Witness identified the accused in this case as the driver of the Ambulance van involved in this case. Xxx xxx xxx .........സ�ഭവ� നടക �കന�ള കന�ക�യക6�ള പപത�നയ കണ�. പപത�നയ കനരനത Ambulance ഓട�ച� കപ�ക�നത� 2-3 പപ�വ+?� ഞ�� കണ�ട�ണ�. xxx xxx xxx .............. ഞ�� നമ�ഴ�നക�ട �ക�� കപ�യക6�ള കപ�ല8സ� സ�കററഷന�ല വച� പപത�നയകണ �. ഇയ�ള�കണ� വണ� ഓട�ച�ര�നത� എന� പപത�നയക�ണ�ച� കപ�ല8സ� എകന�ട� ക:�ദ�ച�ല.” PW4 also categorically identifies the petitioner as the driver of the vehicle at the time of the accident thus: Cr.R.P.No.1999/04 9 ആ Ambulance ഓട�ച�ര�ന ആള�നന കണ�ലറ�യ��. അയ�ള�ണ� കക�ടത�യ�ല പപത�ക#ട�ല ന�ലക�നത�. Of course PWs 1 and 2 stated that at the time when they went to the Police Station, they saw the petitioner in the police Station. No question was asked as to whether they saw him before or after giving the statement. But, PW2 categorically stated that he was not asked by the Police as to whether that person, who was in the Police Station, was the driver, who was driving the offending vehicle. I do not think that, that is a suspicious circumstance, which would in any way put any hole in the evidence of those witnesses. Apart from that, in his evidence PW6 categorically states thus: KL -04C/4031-ം� നനര Ambulance 20.9.97 ര�വ�നല - 7മണ�ക� ഓട�ച�ര�നത� പ�നപപ പഞ�യത� 10 ം� വ�ര.�ല പ�ത�:�റ വ8ട�ല ക�ഞ�ക�ഞ� മക� സ�ഭ�ഷ� ആണ� എന� Ext.P5 ല പറഞ�ട�ണ�. KL-04C/4031- -ം� നനര van ധനFനര� സരH8സ� നസ�ഡസററ�യ�നട ഉടമസതയ�ല ഉളത�ണ�. ഈ വ�7ന� ഞ�� പ�നപപ കപ�ല8സ� ക9ഷന�ല ന�ന�� ഏററ�വ�ങ�. അത�കലയ�ക� ഞ�� എഴ�ത�നക�ട�ത ഡകച8ട�ണ�ക�ണ�ചത�. Marked as Ext.P6. എന�ന�റ അട�സ�നത�ല�ണ� Ext.P5 മറ�പട�നക�ട�തത�(Q) തകലദ�വസ� Subash ആയ�ര�ന� duty, സ�ഭ�ഷ� ആണ� Ambulance ത�ര�ച� ആ+ �പപത�യ�ല നക�ണ � വകരണ� ഇര�നത�. കവനറ�ര� ഡപ.വര ആയ സജ�ക�മ�റ�ണ� വണ� ഇട�ച വ�വര� എനന phone ല വ�ള�ച� പറഞത� (A). Duty list verify ന:യ�തക+ഷമ�ണ� ഞ�� Ext.P5 എഴ�ത�നക�ട�തത�. തകലദ�വസ� duty യ�ല ഉള ആള Cr.R.P.No.1999/04 10 പ�കNന� ര�വ�നല ഓഫ8സ�ല എത�പണ� അടയ�കണ� � അത�വനര അയ�ളക�ണ duty . xxx xxx xxx xxx തകലദ�വസ� സ�ഭ�ഷ� ആയ�ര�ന� duty അത�ന�ല എന�ക� അങനന അന�മ�ന�ക�കന കഴ�യ# (A), നസ�ഡസററ�യ�ല സ#ക�ക�ന duty കരഖ ന�ങള 7�ജര�ക�ത�ര �നത�� കപ�ല8സ� 7�ജര�ക�� ആവ+?ന6ട�ത�ര �നത�� പപത�യല സ�ഭവദ�വസ� വണ� ഓട�ച�ര�നത� എന�കബ�ദ?� ആക�� എന�ളത�നക�ണകല(Q) അല അത� ആവ+?ന6ട�ല, അത� ആവ+?� ഉണ� എന� എന�ക� കത�ന�യ�� ഇല. (A)” ## (underlining supplied) The evidence of Pws 1, 2 and 4 read with the evidence of PW6 proves it beyond any reasonable doubt that the petitioner was the person, who was driving the vehicle at the time of the accident. The argument of the learned counsel for the petitioner based on the two days' delay in producing the FIR before the Court and the chance of embellishment does not appeal to me at all. There is no suggestion to any witnesses that they had any particular interest in foisting a false case against the petitioner. In fact, PWs 1, 2 and 4 are totally uninterested and independent witnesses and a total stranger, as far as the petitioner is concerned. They have no reason whatsoever to falsely implicate the petitioner in a criminal case, that too in an accident case. The evidence of PWs 1, 2 Cr.R.P.No.1999/04 11 and 4 are corroborated by the evidence of PW6. The law laid down by the Supreme Court in **Kailash Gour's** case (supra) relied upon by the petitioner, does not in any way change the situation, insofar as the identity of the driver is concerned, as stated by the witnesses, who gave evidence regarding the identity of the petitioner. As such, I do not find any merit in the contention of the petitioner that the prosecution has failed to prove the identity of the petitioner as the driver of the offending vehicle at the time of the accident. Therefore, there is no reason whatsoever to interfere with the conviction of the petitioner by the courts below on the ground of want of proper identification as contended by the petitioner. 7. The learned counsel for the petitioner makes a fervent plea for reducing the sentence. I am of the opinion that the petitioner has not made out any extenuating circumstances to show that the punishment imposed on the petitioner is excessive. In fact, the Magistrate has specifically quoted a decision which holds that once a person is found guilty of an offence relating to driving of a motor vehicle, 12 Cr.R.P.No.1999/04 severe sentence shall be imposed, which would be a warning to others having such tendencies to be careful in their activities. I am also of opinion that since accident cases on account of rash and negligent driving is on the increase, the same should be dealt with stringent punishment and therefore, the petitioner does not deserve any further leniency in the matter of punishment also. Therefore, the punishment is also confirmed. Accordingly, the Criminal Revision Petition fails and the same is dismissed. ## **S. SIRI JAGAN, JUDGE** acd Cr.R.P.No.1999/04 13 Cr.R.P.No.1999/04 14