Kerala High Court
Lekshmanan Nair vs State Of Kerala on 14 June, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
WEDNESDAY, THE 28TH DAY OF SEPTEMBER 2016/6TH ASWINA, 1938
Crl.Rev.Pet.No. 2142 of 2004 (C)
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AGAINST THE JUDGMENT IN CRA 62/1999 of I ADDL.SESSIONS JUDGE,KOLLAM DATED 14-06-2004 AGAINST THE JUDGMENT IN CC 66/1996 of J.M.F.C.-II,KOTTARAKKARA DATED 06-05-1999 REVISION PETITIONER/APPELLANT/ACCUSED:
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LEKSHMANAN NAIR, SON OF RAMAN PILLAI, THAIPPARAMBIL VEEDU, KATTAMPAKKARAYIL, NJEEZHOOR, KOTTAYAM.
BY ADVS. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT/RESPONDENT/COMPLAINANT:
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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. R, BY ADV. PUBLIC PROSECUTOR SMT MAYA M N THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
P.D.RAJAN, J ......................................... Crl. R.P No. 2142 of 2004 .......................................
Dated 28th September, 2016 ORDER 'C R' This revision petition is preferred by the accused against the judgment in Crl.A.62 of 1999 of Sessions Court, Kollam. He was charge sheeted by the Judicial First Class Magistrate II, Kottarakkara in C.C.66 of 1996 for offence punishable under Section 279, 337, 338 and 304A IPC. After trial, the learned Magistrate convicted the accused under Section 279, 337, 338 and 304 A IPC and sentenced to rigorous imprisonment for six months each under Section 279, 337 and 338 IPC. He was also sentenced to rigorous imprisonment for one year and fine of Rs.2000/- under Section 304A IPC. He was found not guilty under Section 134A r/w 187 of Motor Vehicle Act 1988 and acquitted thereunder. Against that, he preferred the above criminal appeal where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, he preferred this revision petition.
2. The charge against the accused is that on 29.7.1995 at 1.50 pm, accused was driving a lorry bearing registration No.KL-5A 754 through the Thiruvananthapuram Kottarakara MC Crrp 2142/2004 2 road and reached at Sreerangam curve, Chadayamangalam. He was driving the vehicle in a rash and negligent manner, the vehicle hit against an Ambassodor Car KL-2A 7725 which was coming from the opposite direction. As a result, the driver and passengers in the car sustained serious injuries and the driver and one passenger succumbed to the injuries while undergoing treatment. Chadayamangalam police registered the above crime and after completing investigation, laid charge in the trial court. To prove the offence, prosecution examined PW1 to PW15 and marked Ext.P1 to P17 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. Learned Magistrate convicted the accused.
3. Learned counsel appearing for the revision petitioner submitted that the oral testimony of PW1 to PW3 is inconsistent each other to prove the rash and negligent driving of the vehicle. Ext.P8 scene plan is contradicting the evidence of the prosecution witness. When occurrence evidence and scene plan are inconsistent with each other, it is difficult to find Crrp 2142/2004 3 out the place of occurrence. Therefore the prosecution story is unbelievable. The oral evidence of PW1 to PW3 shows that the incident occurred at a curve, Sreerangam valavu, but such a curve is not located by the Village Officer. If that be the position, accused is entitled to get the benefit of doubt.
4. In reply, learned Public Prosecutor submitted that the accident occurred near the curve, which is seen from the scene mahazar, which was not marked as a document in the trial court. The oral testimony of PW1 to PW3 is corroborating the lie of the road at the place of occurrence. In Ext.P8 scene plan the curve is not marked, but the oral testimony of PW1 to PW3 and Ext.P8 is sufficient to prove the rashness or negligence. There is no illegality in the finding of the courts below and no necessity to interfere in the finding recorded by the court.
5. The sound and well established rule of law is that the court is concerned with the quality of evidence for proving or disproving a fact but not with the quantity of the evidence. In negligence there is no intention for a consequence, which happens without any previous planning on the part of the person doing. Apex Court in Badri V. State of Rajasthan (1976 Crrp 2142/2004 4 SCC (crl) 60) held that under the evidence Act no particular number of witnesses are required for the proof of any fact, it is a sound and well established rule of law that quality and not quantity of evidence matters. In each case the court has to consider whether it can be reasonably satisfied to act even upon the testimony of a single witness for the purpose of convicting a person. In this case prosecution examined PW1 to PW3 to prove the rash and negligent driving of the revision petitioner. The evidence of PW1 shows that on 29.7.1995 at 1.38 pm, he was driving a car and reached at Sreerangam valavu, PW2 and PW3 and two other persons were travelling in that vehicle. The deceased Sheriff was driving the car. When they reached the place of occurrence, the offending vehicle lorry bearing registration No.KL-5A 754 came from the opposite side in a rash and negligent manner and hit against the car, as a result the passengers in the car sustained serious injuries, immediately they were removed to hospital. While undergoing treatment, PW1 gave Ext.P1 statement to the police. During cross examination of PW1, he admitted that the incident occurred at a valavu. The offending vehicle was Crrp 2142/2004 5 driven at a high speed at the place of occurrence but he could not ascertain the speed of the lorry. Several people gathered there, interfered in rescue operation. PW1 categorically stated that the accident was due to rash and negligent driving of the lorry itself. PW2 and PW3 supported the evidence of PW1 and nothing has been brought out to discredit their evidence during cross examination. However the accused even failed to attribute negligence against PW1. In the light of the oral evidence of PW1 to PW3, it is clear that the accident was due to the rash and negligent driving of the vehicle by the revision petitioner.
6. The rash and negligent driving of a vehicle on a public way to endanger human life or likely to cause hurt or injury to another person is an offence affecting the public safety which is punishable under Chapter XIV of the Indian Penal Code. 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 Crrp 2142/2004 6 positive duty and he does not advert to the act which is his duty to do. While dealing with rash and negligent driving, Apex Court in Mohanthalal Saha V. State of West Bengal (1968 ACJ 124) heid that the statement of witness that the bus was coming at a high speed is not sufficient to justify the conviction. In Suleiman Rahiman Mulani and another V. State of Maharashtra (1968 Crl.L.J 1013) it was held 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 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.
7. It is true that a motor vehicle is expected to be driven in speed on a public way. The rashness or negligence depends upon various factors, of the most, the time and place is relevant. In this case the place of occurrence is a curve. Crrp 2142/2004 7 Therefore if a person drives a vehicle at an excessive speed in a curve, and accident occurs, it is a rash act by the accused by breaking a positive duty. C.I, Kadakkal prepared a mahazar on 30.7.1995, but that mahazar was not marked in the trial court by the Assistant Public Prosecutor. The mahazar is a material document for identifying the place of occurrence, and it was prepared by the C.I while discharging his official duty. In that mahazar the place of occurrence and lie of the curve are specifically described by the Circle Inspector. The oral evidence of witnesses show that revision petitioner was driving the lorry from south to north. The road lies at the place of occurrence south north direction and tar portion has a width of 5.60 metres. The eastern road margin has a width of 2.3 metres and the western road margin has 2.9 metres. The place of occurrence is noted as Sreerangam valavu. The place of occurrence is marked as 3.8 metres east from the western tar end. It is not necessary to remit the matter to the trial court to mark the scene mahazar, moreover non marking of the mahazar will not exonerate the revision petitioner from the criminal liability. From the oral evidence of PW1 to PW3, the Crrp 2142/2004 8 injured, it is clear that the revision petitioner was driving the lorry at a high speed when it reached at the curve which resulted in head on collision with the Ambassodor car which was coming from the opposite direction which resulted in the accident and two passengers in the car sustained grievous injury, while undergoing treatment one of the passengers and driver of the vehicle succumbed to the injuries.
8. If a man is driving along a road, it is his duty not to injure another person whom he meets on the road. At the same time, it is the duty of a man not to do any act which will harm the property of another while driving. While driving on a plain road and when there is no vehicle or pedestrians on the road, he is at liberty to drive as fast or recklessly as he pleases. But if he comes across another vehicle coming from the opposite direction, immediately a duty arises not to drive in such a way as is likely to cause an injury to that other vehicle. So too, if a man is driving on a public road and negotiating a curve, similar duty is there not to drive carelessly at a high speed. Therefore in my opinion negligence can be fixed only when it is established that the man owed some duty Crrp 2142/2004 9 and failed to do that duty.
9. The medical evidence is corroborating the prosecution story. Ext.P10, P11 and P17 are the wound certificates issued by PW9, PW10 and PW15. PW1 had a fracture shaft of right femur and multiple abrasion as per Ext.P9. PW2 had fracture neck of right femur, fracture 1st metacarpel, fracture of P1 index rt as per Ext.P10, PW3 had laceration and contusion as per Ext.P11. There were simple injuries to PW4 on right arm and forehead as per Ext.P17. Ext.P14 inquest report alone was marked in this case. The doctor who conducted post mortem examination was not examined, moreover the post mortem certificate was also not marked. However the accused has no dispute with regard to the death of two persons in the accident.
10. Apex Court in S.N.Hussain V. State of Andra Pradesh ( 1972(3) SCC 18) explained the meaning of the rash and negligent act which reads as follows:-
" Rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminal liability lies in such a case in running the risk of doing such an Crrp 2142/2004 10 act with 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.
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. In a case of accident on a level railway crossing where the gate is open and there is no train scheduled to pass at the time, the driver would be justified in driving his vehicle through the level crossing. Passenger trains have a time schedule and if a train is expected to come at about the time the appellant reached the level crossing, a regular driver of motor vehicles on that route may, perhaps, be found negligent in crossing the railway track, if any mischance, the gate was open. But in the case where a goods train not scheduled to pass the level crossing, just about the time the bus reached the spot and an accident takes place, the Crrp 2142/2004 11 appellant cannot be held guilty of criminal negligence because he may not have known that a goods train would be coming at that moment. In such circumstances the appellant will not be guilty merely because he did not stop when the road signal wanted him to stop. Such a case will be a case of unavoidable accident because of the negligence of the gateman in keeping the gate open and inviting the vehicles to pass".
11. On a perusal of the evidence of PW1 to PW3 it is seen that the criminal negligence on the side of the revision petitioner was proved beyond reasonable doubt. No grounds are highlighted before me to discard the direct oral testimony of the occurrence witnesses. The criminal liability of driving of the vehicle in a high speed at the curve was at the risk of the revision petitioner. The reckless act without taking precaution and hitting of the vehicle against an ambassador car is a gross and culpable negligence without taking proper care and caution. The learned Judicial First Class Magistrate appreciated the position and convicted the accused, which was upheld by the Sessions Judge. I find no illegality in the finding of the courts below.
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12. The incident happened long back in the year 1998 and the revision petitioner is now nearly 60 years. Considering the age of the revision petitioner and the long lapse of time, revision petitioner is entitled to get leniency. I rely the decision of the Apex Court in Chandramohan Nair V. State of Kerala (1994 SCC Crl 1750). Hence the accused is sentenced to rigorous imprisonment for three months and fine of Rs.25,000/- and in default, simple imprisonment for six months.
Crl.R.P is disposed of as above.
P.D.RAJAN, JUDGE lgk Crrp 2142/2004 13 The disparity between rashness and negligence has been explained by Lord Esher M.R in Le Lievre and Dennes V. Gould (1989(1) QB 491). It was held as follows:-
"The question of liability for negligence cannot arise at all until it has been established that the man, who has been negligent, owed some duty to the person who seeks to make him liable for his negligence. A man is entitled to be a negligent as he pleases toward the whole world if he owes no duty to them. If one man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property. For instance,