Thahir s/o Khalid v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 21ST DAY OF JUNE 2016/31ST JYAISHTA, 1938** **Crl.Rev.Pet.No. 502 of 2004 (C)** **-------------------------------AGAINST THE JUDGMENT IN CRL.APPEAL NO.390/2002 of V ADDL. DISTRICT & SESSIONS COURT, EKM DATED 17-10-2003** **AGAINST THE JUDGMENT IN CC 1845/2002 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ERNAKULAM DATED 10-05-2002** **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **----------------------------------------THAHIR,S/O KHALID, RESIDING AT POOCHATHU PARAMBIL, NAMBIAPURA, PALLURUTHY.** **BY ADV. SRI.A.P.SUBHASH** **RESPONDENT(S)/RESPONDENT/STATE & COMPLAINANT:: ---------------------------------------------STATE OF KERALA INSPECTOR OF POLICE, CITY TRAFFIC, KOCHI CITY, REPRESENTED BY PUBLIC PROSECUTOR, HGIH COURT, OF KERALA, ERNAKULAM.** **R BY PUBLIC PROSECUTOR SMT. M.G. LISHA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.502 of 2004 ---------------------------------------------Dated this the 21[st] day of June, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.390/2002 of the Additional Sessions Judge-V, Ernakulam. He was accused in C.C.No.1845/1998 before Judicial First Class Magistrate-II, Ernakulam, which was filed u/s.279, 304A IPC. After trial, the learned Magistrate convicted him u/s.279 and 304A IPC and sentenced to simple imprisonment for six months and fine of 1,000/- u/s.279 IPC in default imprisonment for₹ thirty days, simple imprisonment for one year and fine of ₹ 4,000/- u/s.304A IPC in default simple imprisonment for 45 days. Against that, he preferred the above Crl.Appeal Crl.R.P.502/2004 2 before Additional Sessions Court-V, Ernakulam, where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision petition. 2. The charge is that on 22.10.1998 at about 9 a.m., the accused had driven a bus KRH 9464 through the Park Avenue Road from south to north in a rash and negligent manner so as to endanger human life, when it reached near the boat jetty junction, it knocked down a pedestrian, as a result he fell down and sustained serious injury, subsequently succumbed to the injuries, thereby committed the offence. City Traffic Police registered a crime and after completing investigation, C.I., City Traffic Police laid charge in the trial Court. During trial, prosecution examined PW1 to PW15 and marked Exts.P1 to P9. The incriminating circumstances brought out in Crl.R.P.502/2004 3 evidence were denied by the accused while questioning him, he did not adduce any defence evidence. 3. Culpable negligence lies in the failure to exercise proper care and its reasonableness will always depend upon the circumstances of each case. In negligence, there is no intention and it happens without any premeditation. Rash driving or rash riding on a public way under Section 279 means whoever drives any vehicle on any public way in a rash or negligent manner so as to endanger human life or to be likely to cause hurt or injury to any other person. Whoever causes the death under S.304A means any person by doing any rash or negligent act not amounting to culpable homicide. In case of negligence, the wrong doer breaks the positive duty and he does not advert to the act, which is his duty to do. In rashness, the party does the act, which he is bound to Crl.R.P.502/2004 4 forbear and he breaks the inactive duty. 4. Apex Court in **Braham das** v. **State of Himachal Pradesh** [AIR 2009 SC3181] held that rash and negligent must be criminal rashness or criminal negligence. It must be more than mere carelessness or the error of judgment. For conviction under the Section, it must be proved that the accused was driving the vehicle on a public road in a manner that endangered human life or was likely to cause hurt or injury to any other person. Therefore, mere error of judgment does not amount to a rash and negligent driving. 5. The main point put forward by the revision petitioner is that the prosecution has not adduced any evidence to prove the rash and negligent driving of the accused. The accident was due to the negligence of the deceased himself while crossing the road. While Crl.R.P.502/2004 5 adverting to the above argument, I have examined whether there was any misreading of evidence and violated the fundamental rules of appreciation of evidence. The High Court will normally exercise its revisional jurisdiction and interfere in cases in exceptional circumstances only when it feels that substantial injustice has been done by a Court. For that, I have examined the evidence of the occurrence witness PW1. His evidence shows that on 22.10.1998 at 9 a.m., while he was waiting at the Boat Jetty Junction, the bus came from south to north and hit a pedestrian, who was crossing the Park Avenue road. As a result, the pedestrian fell down and sustained serious injuries, immediately, he was removed to Hospital. The evidence of PW2 also shows that the deceased was crossing the Park Avenue road, from east to west. But, he deposed that the bus was driven in a rash Crl.R.P.502/2004 6 and negligent manner at the place of occurrence. Another independent witness, PW3 also had given similar version as given by PW1 and PW2, but he was not aware of the particulars of the person who had driven the bus at the time of the occurrence. A close anlaysis of the oral testimony of PW1 to PW3, it is found that the accident was due to the negligence on the part of the deceased. 6. The medical evidence in this case shows that the deceased sustained serious injury in the accident. PW10 conducted postmortem examination and issued Ext.P4 postmortem certificate, in which he noticed serious head injury and abdominal injury to the deceased, which resulted in his death. Analysing the evidence of occurrence witness, it is found that, prosecution has failed to produce evidence to establish the rash and negligent driving of the revision petitioner. A close Crl.R.P.502/2004 7 scrutiny of the evidence shows that the accident occurred due to negligence of the deceased while crossing road. 7. **Mahadeo Hari Lokre** v. **The** The Apex Court in **State of Maharashtra** [AIR 1972 SC 221 and [AIR 1972 KHC 759] held that, if a pedestrian suddenly crosses a road without taking note of the approaching bus, there is every possibility of dashing against the bus without the driver becoming aware of it. The bus driver cannot save accident however slowly he may be driving and therefore he cannot be held to be negligent in such a case. In short, the accident had occurred and pedestrian died is not a reason to convict the accused in the absence of proof with regard to the rash and negligent driving on a public way. Apex Court in another decision **Suleman Rahiman Muloni** v. **State of Maharashtra** [AIR 1968 SC 829] held that, “to Crl.R.P.502/2004 8 impose criminal liability under S.304A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the cause sine qua non”. The trial court misconstrued the evidence on record and convicted the accused which is a good ground for the High Court to exercise its revisional jurisdiction. In view of the above discussion, the conviction and sentence passed by the trial court under Section 279 and 304-A IPC are set aside and accused is acquitted and set at liberty. This revision petition is allowed. ## **P.D. RAJAN, JUDGE.** acd