V.K. Sankarankutty v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 12TH DAY OF JULY 2016/21ST ASHADHA, 1938** **CRL.REV.PET.NO. 539 OF 2003 ( ) --------------------------------** **AGAINST THE JUDGMENT IN CRA NO.78/1994 OF ADDITIONAL SESSIONS JUDGE, ADHOC-I, PATHANAMTHITTA DATED 19-12-2002** **AGAINST THE JUDGMENT IN CC NO.101/1993 OF CHIEF JUDICIAL MAGISTRATE, PATHANAMTHITTA DATED 11.08.1994** **----------------------** **REVISION PETITIONER(S)/APPELLANT/ACCUSED : --------------------------------------** **V.K.SANKARANKUTTY, S/O KOCHIKKA, VELANPARAMBIL HOUSE, NARANAMMOOZHY, RANNI TALUK.** **BY ADVS.SRI.M.R.VENUGOPAL SMT.DHANYA P.ASHOKAN** **RESPONDENT(S)/COMPLAINANT : -------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.V.P.SATHI** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **C.R.** ## **P.D. RAJAN, J. -------------------------------Crl. Rev. Pet. No.539 of 2003 ---------------------------------Dated this the 12[th] day of July, 2016** ## **O R D E R** This revision petition is preferred against the judgment in Criminal Appeal No.78 of 1994 of the Additional Sessions Judge, Adhoc-I, Pathanamthitta by the accused. He was charge sheeted in C.C. No.101 of 1993 of the Chief Judicial Magistrate, Pathanamthitta under Secs.279 and 304A of the Indian Penal Code (hereinafter referred to as IPC for short). The learned Chief Judicial Magistrate convicted the accused under Secs.279 and 304A IPC and sentenced to simple imprisonment for three months under Sec.279 IPC and simple imprisonment for six months under Sec.304(A) IPC. Against that, he preferred the above Criminal Appeal, 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.539 of 2003 2 15.06.1993 at 11.00 a.m., he had driven a KSRTC bus KL-15-0456 through Kozhencherry Pathanamthitta public road in a rash and negligent manner endangering human life. When he reached near the traffic junction, Pathanamthitta, the bus hit on the back side of a scooter KL-3A-971 as a result, the scooter rider fell down and the rear wheel of the bus run over the scooter rider, thereby he died at the spot itself. Pathanamthitta police registered a crime and after completing investigation, Circle Inspector, Pathanamthitta laid charge in the trial court. During trial, prosecution examined PW1 to PW13 and marked Exts.P1 to P8 as documentary evidence. MO1 was admitted as material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. 3. The rash and negligent driving have been explained by the Apex Court in **S.N. Hussain v. State of A.P. [1972 (3) Supreme Court Cases 18]** which reads ## Crl. Rev.Pet. No.539 of 2003 3 ## 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 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. The first contention advanced by the counsel appearing for the revision petitioner is that there was no rash and negligent driving at the place of occurrence. But the evidence of PW5 discloses that the revision petitioner was rash and negligent at the place of occurrence. PW5, the Police Constable, attending duty at the traffic point, Municipal junction, Pathanamthitta who saw the incident, is the main occurrence witness. His Crl. Rev.Pet. No.539 of 2003 4 evidence shows that on 15.06.1993 at 11.30 a.m., he was on duty at traffic junction, Pathanamthitta, he gave stop signal to the vehicles proceeding towards private bus stand from Kozhencherry-Pathanamthitta road for clear access to the vehicles coming towards the private bus stand. PW6 was also present at traffic junction and supported PW5. At that time, the deceased came there in a scooter through the Kozhencherry-Pathanamthitta road and PW6 gave stop signal to the vehicle, accordingly the deceased stopped his vehicle and waited for further signal. After sometime, he gave signal to the vehicles running through the Kozhenchery-Pathanamthitta Public road, at that time, the revision petitioner had driven the KSRTC bus at a high speed in a rash and negligent manner and hit on the back side of the scooter. Due to the impact, the scooter rider fell down on the road and the rear wheel of the K.S.R.T.C. bus run over the body of the deceased, thereafter the bus proceeded 25 feet and stopped. This evidence of PW5 shows that the accident Crl. Rev.Pet. No.539 of 2003 5 was due to the rash and negligent driving by the revision petitioner. PW6 another Police Constable who was on duty at the place of occurrence supported the evidence of PW5 and gave same version given by PW5. The oral evidence of PW5 and PW6 show that their evidence is admissible to prove the rash act or negligent act of the accused. Negligence cannot be construed to mean rashness. The criminal liability lies in running the risk or doing an act with recklessness and indifference to the consequences. Analysing the evidence it is found that no precaution and care was taken by the revision petitioner while driving the vehicle. When there is gross and culpable negligence or absence of reasonable care it amounts to criminal negligence. 5. The second contention is that the evidence of police constables on duty alone is not sufficient to prove the identity of the accused. In this context, it is better to examine the evidence of PW5 and PW6, whether the rash and negligent act of the accused was witnessed by these Crl. Rev.Pet. No.539 of 2003 6 witnesses or they saw the post accidental scene alone. An error of judgment comes to the light only after the accident, but it could not be foreseen by the accused in that fragmented moment. For this, the person who was standing near the place of occurrence is a competent witness to depose about the incident. There is no infirmity in admitting the oral evidence of PW5 and PW6 merely because they belong to police force. These witnesses have no personal enmity towards the revision petitioner. They deposed about the incident which happened on the particular day while they were discharging their official duty. The fact that they are members of Police force is not a ground to discard their oral testimony. Revision petitioner suggested that there was no chance to see the accident since PW5 and PW6 were controlling the traffic. The rule of evidence lays down that conviction can be made on the evidence of the Police officers if found reliable, however court has to carefully scrutinize their evidence. During such examination if the evidence is Crl. Rev.Pet. No.539 of 2003 7 found trustworthy, a conviction is maintainable on such evidence. From the oral evidence of PW5 and PW6, it is clear that specific signal was given to the vehicle coming from Kozhencherry side and several vehicles stopped at traffic junction, Pathanamthitta. After some time, they gave further signal and the bus came in a rash and negligent manner and hit on the rear side of the scooter. An independent witness PW1 also identified the driver of the vehicle. This evidence of PW1, PW5 and PW6 is admissible. Even though the identity of the driver was disputed, no reasons were stated to discard the oral evidence of these witnesses. Analysing the oral evidence of PW1, PW5 and PW6, I am of the opinion that they are reliable witnesses and their testimony worth credence for proving the identity and the rash and negligent driving. 6. There is no rule of evidence that no conviction can be made unless a minimum number of witnesses have seen the incident and identified the accused. It is the basic principle that evidence is not to be Crl. Rev.Pet. No.539 of 2003 8 counted but to be weighed and it is not the quantity of evidence but the quality is relevant. In normal course, the testimony of one single witness is sufficient to establish the identity of the accused if his evidence is found reliable. However, where the single witness is found to be a witness not wholly reliable, in the sense that there are circumstances which shows that he could have an interest in the prosecution case, then court generally insist upon some independent witnesses for corroboration of his testimony in material particulars before conviction. When the courts find that the evidence of the single eye witness is not wholly unreliable, the court will not discard his testimony in toto and no amount of corroboration can cure that defect. When there are circumstances of suspicion, the judge can demand for corroboration. Therefore it would be unwise to insist plurality of evidence and it is against public policy. In this case there are two witnesses who saw the incident and identified the accused. When prosecution case rests mainly on the sole Crl. Rev.Pet. No.539 of 2003 9 testimony of eye witnesses, it should be wholly reliable if the evidence is cogent, implicit, reliable and in tune with probabilities. 7. The medical evidence shows that the deceased sustained serious injuries. PW11 the doctor, General Hospital conducted autopsy and issued Ext.P7 postmortem certificate. PW11 deposed that the death was due to the multiple injuries sustained. PW1 and PW4 removed the injured to the General Hospital, Pathanamthitta and PW1 gave Ext.P1 statement to PW12, Assistant Sub Inspector, who registered a crime and Ext.P8 is the FIR. The Motor Vehicle Inspector inspected the vehicle and reported no mechanical defects to the vehicle. Evidence shows that the revision petitioner had driven the vehicle on a public way in a rash and negligent manner so as to endanger human life and thereby caused hurt to the deceased. He also caused death of the scooterist by doing a rash or negligent act not amounting to culpable homicide, thereby committed the offences Crl. Rev.Pet. No.539 of 2003 10 under Secs.279 and 304(A) IPC. Therefore, the conviction under Secs.279 and 304A IPC by the Chief Judicial Magistrate, Pathanamthitta which was upheld by the Additional Sessions Court is only to be confirmed. 8. The general rule is that the sentence should neither be too lenient nor disproportionate. The court has a duty to take into account all the relevant circumstances for the commission of the offences including nature and gravity of offence, while imposing sentence and the court has to adopt suitable measures. The balancing between various considerations such as the nature and gravity of offence is relevant. Apex Court in **Shailesh Jasvantbhai and Another v. State of Gujrat And Others [(2006) 2 SCC 359]** held as follows: Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilised societies, but such a radical departure from the principle of ## Crl. Rev.Pet. No.539 of 2003 11 proportionality has disappeared from the law only in recent times. Even now for a single grave infraction, drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences. 9. In this case, the revision petitioner is fully bed ridden, which was reported by the Circle Inspector, Pathanamthitta. The report shows that the revision petitioner retired from KSRTC, Pathanamthitta in the year 1999 and now he is lying in an unconscious condition followed by stroke for the last 13 years. He is also suffering from various illness due to stroke. The report of the District Probation Officer, Pathanamthitta shows that no previous criminal antecedents were proved against him, he is physically not normal and unable to Crl. Rev.Pet. No.539 of 2003 12 express anything. However, considering the present pathetic situation of the revision petitioner, infliction of harsh punishment is not necessary in this case. 10. The modern approach to penology is that the sentence should bear a humanitarian consideration. If light sentence is given in this case, it will improve the mental condition of the revision petitioner. Apex Court in **M.H.Hoskot** v. **State [AIR 1978 SC 1548]** held that “soft sentencing justice is gross injustice where many innocents are the potential victims”. Apex court in **Aitha Chander Rao v. State of Andhra Pradesh [1981 (Supp) Supreme Court Cases 17]** has considered the question of releasing the accused on probation of good conduct, who was convicted under Sec.304A IPC. However instead of sentencing the petitioner at once to any punishment, he is released on probation for good conduct for a period of one year under Section 4 of the Probation of Offender's Act, 1958. Having regard to the special physical condition he shall not execute any bond Crl. Rev.Pet. No.539 of 2003 13 in the trial court, but he shall be under the supervision of the District Probation Officer for a period of one year. The revision petition is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** NS/16/07/2016 / True Copy / P.A. To Judge