Kerala High Court
Thilakan vs State Of Kerala on 29 July, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
MONDAY, THE 27TH DAY OF FEBRUARY 2017/8TH PHALGUNA, 1938
Crl.Rev.Pet.No. 2670 of 2003 ( )
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AGAINST THE JUDGMENT IN CRA 58/2002 of ADDITIONAL SESSIONS COURT, KOTTAYAM
DATED 29-07-2003
AGAINST THE JUDGMENT IN SC 86/1998 OF ASSISTANT SESSIONS COURT DATED
25.01.2002
REVISION PETITIONER/APPELLANT/ACCUSED:
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THILAKAN, S/O. VASUDEVAN
CHEMMANAPARAMBIL HOUSE, EDAPPADY KARA
BHARANANGANAM VILLAGE, KOTTAYAM DISTRICT
BY ADV. SRI.S.RAJEEV
RESPONDENT/RESPONDENT/COMPLAINANT:
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STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR
HIGHC COURT OF KERALA, ERNAKULAM
BY PUBLIC PROSECUTOR SMT. K.K. SHEEBA
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
27-02-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
K.P. JYOTHINDRANATH, J.
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Crl.R.P.No.2670 of 2003
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Dated this the 27th day of February, 2017
O R D E R
This criminal revision petition is filed by the petitioner aggrieved by the concurrent finding of conviction and sentence in Sessions Case No.86/1998 on the file of the Assistant Sessions Judge, Kottayam which was upheld in Crl.A.No.58/2002 on the file of the Additional Sessions Judge, Kottayam.
2. The facts necessary for disposal of this criminal revision petition is as follows:
A motor vehicle accident occurred on 19.3.1997 at 4.45 p.m. involving a bus bearing registration No.KEO 1024 and a jeep bearing registration No.KL5-E/3371 and thereafter the bus proceeded further through the tarred portion and then hit against another car bearing registration No.KRY 2000. In that accident altogether four people sustained fatal injuries and succumbed to the injuries. The prosecution altogether examined 21 witnesses and Exts.P1 to P35 were marked. On the side of the defence, one witness Crl.R.P.No.2670 of 2003 2 was examined. The defence also marked Exts. D1 and D1 (a). After trial, the trial court convicted the accused for an offence under Section 304 of IPC and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/- with default rigorous imprisonment for one year. The trial court also convicted under Section 279 of IPC and sentenced to undergo rigorous imprisonment for six months. He was also convicted under Section 337 of IPC and sentenced to undergo rigorous imprisonment for six months. There was also conviction under Section 338 of IPC and sentenced to undergo rigorous imprisonment for two years. The appellate court dismissed the appeal and confirmed the conviction and sentence.
3. This being a Criminal R.P., the first point to be considered is whether any illegality committed by the trial court as well as the appellate court. The main submission made before me is that by no stretch of imagination it cannot be said that the revision petitioner committed an offence under Section 304 of IPC. In support of the Crl.R.P.No.2670 of 2003 3 submission, the learned counsel appearing for the revision petitioner brought to my attention the decision of the Hon'ble Apex Court in Richhpal Singh Meena v. Ghasi @ Ghisa & Ors. [(2014) 8 SCC 918]. Paragraph 32 of the said decision shows the ingredients that has to be proved in a case under Section 304 of IPC. It is the submission that in this case the mental element required to constitute an offence under Section 304 of IPC is lacking. As such the appreciation of materials by the trial court as well as the that of the appellate court are patently illegal and an interference by this court is warranted. The counsel also brought to my attention the decision of the Hon'ble Apex Court in State of Gujarat v. Haidarali Kalubhai [1976 KHC 696] wherein the offences under Section 304 Part II as well as Section 304A of IPC was analyzed. Therein the court held that even when the accused who drove a truck without licence hit against a person, an offence under Section 304 Part II will not be attracted but only an offence under Section 304 A of IPC will be attracted. The counsel Crl.R.P.No.2670 of 2003 4 then submitted before me that in this case the evidence of PW14, who is working as Joint R.T.O., Alappuzha deposed before the court that he inspected the stage carriage bearing registration No.KEO 1024 and issued Ext.P20 certificate. It is the submission of the learned counsel that while he examined the vehicle, he noticed that left tie rod end was broken on the left side. It is the submission that actually the damage noted on the right front side of the vehicle, but he noted that left tie rod was broken. It is the submission that even though without any basis, the witness deposed that it was broken at the time of accident. During the cross examination he admitted that it can be broken due to manufacturing defect as well as there is a possibility of breaking the same due to oldness. Surely the said witness added that periodical maintenance has to be done. But when the said document is used to arrive at a conviction under Section 304 of IPC, there should be positive proof that the said rod was broken at the time of accident. There is nothing to show that the said rod came in direct contact Crl.R.P.No.2670 of 2003 5 with the other vehicles or any damage noted by the witness other than noted in the certificate that it was broken. Under such circumstances, when admittedly there is evidence by the said witness to the effect that, if it was broken, the control of the vehicle will be lost and the vehicle will be moving on the opposite direction (other direction). If that be so, the submission of the learned counsel is that there is a possibility of causing accident due to mechanical defect or due to breaking of the said rod before the accident. The counsel also submitted before me that the appreciation of the evidence of other material witnesses are also not proper and the revision petitioner is entitled for an acquittal.
4. The learned Public Prosecutor appearing on behalf of the State submitted before me that the vehicle involved is a stage carriage. It is the submission that, as per the evidence of PW14, it can be seen that the vehicle was undergone a check up by the department and a fitness certificate was issued. When the vehicle was undergone the test by the department and further when the case of the Crl.R.P.No.2670 of 2003 6 petitioner is that he lost the control of the vehicle, by virtue of Section 106 of the Evidence Act, the burden is squarely upon the petitioner to give evidence to that effect. When such an evidence is lacking, there is no illegality committed by the court below in convicting the accused for an offence under Section 304 IPC. It is also the submission that in this case four people died. There is evidence to show that two buses were racing and as such, the accident occurred. Then there is no illegality committed by the court and the revisional jurisdiction need not be invoked to upset the findings.
5. PW1 is an injured witness who was travelling in a jeep. He gave F.I. Statement to the police which is marked as Ext.P1. He deposed before the court that they were traveling from south - north direction and the bus bearing registration No.KEO 1024 came from the opposite direction and hit against the jeep. His evidence is that "LXm Nrx 3GJ_W Ngx LT_fa NaO_W 5Oy^X LT_fa drivere>B {af?ejeep fH NaO_W 5I_Ga" Nfx LX_fa NaO_W 5Oy^HaU Crl.R.P.No.2670 of 2003 7 D_?aAJ_W >B{af? jeep W UK_?_:na." and he further deposed that, in the jeep, there were 9 persons and he also identified the revision petitioner who was the accused facing the trial as the driver of the bus. PW2 is also an injured witness whose tibia was broken and according to this witness, when he saw the bus coming in a high speed, the jeep was stopped and even then the bus came and hit. PW3 is also an injured witness. According to his version the 'Newman' bus came overtaking another bus and hit against the jeep and it is also his evidence that her sister-in-law Alice as well as the driver died. She also deposed that another three persons also died. PW4 is also an injured witness. She also deposed that while they were travelling in a jeep, a bus came and hit against the jeep on its right side and she saw the accused from Medical College Hospital. PW5 is the driver of the car which was also involved in the accident. He deposed that he sustained injuries in the accident. He deposed that the accident was on 19.3.1997 at 5.15 p.m. and according his version "IG_J^H" 5U\OmAm %?aJm Crl.R.P.No.2670 of 2003 8 .J_OgM^Z .faefront W gI^Oe jeep WeNewman .K bus .D_fx U{fx speedW Nfx^xae bus fHeovertake f:Oqa UKae jeep W '?_:nDa 5Ia. '?_AaKDa 5IDaf5^Im 3_4 UI_M^?m %5\J_W .fa 5^V H_VJ_O_x_Aa5O^O_xaKa.e jeep W '?_:ngVW" %gDe speedW DfK UKm >BZ XFx_:n_xaK 5^y_W '?_:na. %D_HagVW" Iay5_W gUfy 2xaeAmbassidor 5^y_W '?_:na." PW6 is also an injured witness. He was travelling in the car. According to him after seeing the bus, the driver slowed the car even then the bus after hitting the jeep came forward and hit against the car. PW7 is also a traveller in the car. He also support the prosecution case. PW8 is the owner of the car who also supported the prosecution case. He also deposed that the bus involved hit against his car also. PW9 was a passenger in the bus which was allegedly driven by the petitioner herein. According to him "IG_J^HJa 5U\ 5]_Eme Newman LXm overtake f:OqaejeepW '?_:na.eI_fK 2xa gY^IX^5^y_W '?_:na.e%D_fa Iay5_W gUfy UI_O_W '?_:na.e( LX_f\ O^dDA^Vespeed 5b?aD\^ODaf5^Im gI?_:n_xaKa." While he was cross examined Crl.R.P.No.2670 of 2003 9 Exts.D1 and D1(a) were also marked.
6. PW10 who was an Assistant Professor of Surgery, Lecturer attached to Medical College Hospital, Kottayam who treated the injured persons in the accident, marked Exts.P2 to P12. PW11 is also a Lecturer in Orthopaedics Department, Medical College, Kottayam. He marked Ext.P13. He treated the fracture injury of the witness. PW12 is also a doctor who was examined to prove discharge certificate of Annakutty who was admitted on 19.3.1997. As per his evidence, there was fracture of left parietal bone and he marked the discharge certificate as Ext.P15. PW13 was also a doctor attached to the forensic medicine department and Assistant Police Surgeon, Medical College, Kottayam who conducted the post-mortem on the bodies of four persons, who died in the accident. He marked Exts.P16 to P19 post-mortem certificates. PW14 was the Joint R.T.O., who examined the vehicles involved in the accident and marked Exts.P20 to P23. He deposed before the court that the bus involved in the vehicle was examined Crl.R.P.No.2670 of 2003 10 by him on 22.3.1997 and no mechanical defect was noticed and he noted some damages i.e. front grill and bumper bent backwards, front right side corner bent backwards, front spring sets dislocated, left tie rod end broken. During cross examination he admitted that when tie rod end is broken, the driver will lose the control of the steering. He also deposed before the court during cross examination that the tie rod end broken at the time of accident. PW15 is the Village Officer who prepared the site plan which is marked as Ext.P24. PW16 is the scene mahazar witness who marked the document as Ext.P25. At the time of cross examination, he deposed before the court that there was a gutter on the road. PW17 is the owner of the bus who deposed that accused was driving the vehicle at the time of accident. PW18 is the Additional Sub Inspector of Police who prepared the inquest report in respect of Joby Abraham who died in the accident and marked as Ext.P28. PW19 is also a probation Sub Inspector who prepared the inquest report of the deceased Beena and marked the same as Crl.R.P.No.2670 of 2003 11 Ext.P29. PW20 is the C.I. of Police who was the Sub Inspector at that point of time who registered the FIR and also conducted the primary investigation. PW21 is the investigating officer, who conducted the investigation and filed the final charge incorporating the offences under Sections 279, 337, 338 and 304 of IPC. DW1 is a witness examined by the defence. He is a retired government servant and according to him, he was travelling in the bus. The vehicle was comparatively moving with speed and according to him there was a gutter on the road and it appears that it fell in the gutter and a sound was heard. The jeep and car were coming in convoy and hit against the bus and according to him it was not overtaking any other bus.
7. In this case, as already stated, the main argument of the learned counsel for the revision petitioner is that an offence under Section 304 of IPC will not lie. Surely, the trial court as well as the appellate court came to a conclusion that knowledge can be attributed to the Crl.R.P.No.2670 of 2003 12 petitioner in respect of death of persons involved in the accident. Surely, in this case four persons died. The main question involved is whether the knowledge required to be proved in an offence under Section 299 of IPC can be attributable in this case. Under Section 299 of IPC, the culpable homicide is defined as follows:
"whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
8. While analyzing Section 299 of IPC, the Apex Court in Richipal Singh's case (supra) held that if culpable homicide cannot be proved, then it would fall in the category of not culpable homicide. That is, to bring an offence under Section 304 of IPC, there should be positive proof regarding commission of culpable homicide. The learned counsel further brought to my attention paragraph 35 of the said decision which reads as follows:
"31. Having considered all the decisions cited before us (and perhaps there are many more on the subject but not Crl.R.P.No.2670 of 2003 13 cited), in our opinion, a five -step inquiry is necessary: (i) Is there a homicide? (ii) If yes, is it a culpable homicide or a 'not-culpable homicide? (iii) If it is a culpable homicide, is the offence one of culpable homicide amounting to murder (Section 300 of the Indian Penal Code) or is it a culpable homicide not amounting to murder (Section 304 of the Indian Penal Code)? (iv) If it is a 'not -culpable homicide' then a case under Section 304 -A of the Indian Penal Code is made out. (v) If it is not possible to identify the person who has committed the homicide, the provisions of Section 72 of the Indian Penal Code may be invoked. Since this five
-pronged exercise has apparently been missed out in the first category of decisions, learned amicus was of the opinion that those decisions require reconsideration. "
9. In this case after applying the dictum laid down by the Apex Court we have to analyze whether the ingredients of Section 299 of IPC is made out or proved by the prosecution. Here, admittedly, the revision petitioner was driving a stage carriage vehicle. When an accident happened and death caused, by no stretch of imagination can it be said that he was having the intention of causing Crl.R.P.No.2670 of 2003 14 death of any person traveling in the vehicles on the very same road. If the said aspect is lacking, the second aspect to be considered is that whether he acted with the intention of causing such bodily injury which is likely to cause death. Surely, when the ingredient is coupled with intention that limb also is seen lacking in this case. The only case of the prosecution is that a knowledge that such act is likely to cause death can be attributed in this case. To buttress this contention, the prosecution is relying upon the evidence of witnesses to the effect that the vehicle was racing with another bus and while overtaking the said bus, the accident occurred. Ext.P1 is a document given by PW1 before the police at the earliest point of time. On perusal of Exts.P1 and P1(a) it can be seen that the said aspect is conspicuously absent. The only allegation therein is that "%D_gU7DO_\a", Vx_O^O H_OdLCN_\o^fDOa", dViO_\o^fDOa" %O^Z NHIbVUn" LTm 3?_:naUKDaf5^I^Cm ( %I5?NaI^ODm." It is pointed out by the learned counsel for the revision petitioner that at the earliest point of time itself it is stated Crl.R.P.No.2670 of 2003 15 by the witness to the effect that "H_OdLCN_\o^fD". The said aspect is very important when appreciating the evidence of PW14 who proved Ext.P20. Surely the defence got a case that the accident occurred as the tie rod was broken. But appreciating the totality of the case especially when the fitness certificate was obtained by the RC owner in respect of the vehicle only two months prior to the accident, as per the evidence of PW14, and the said aspect was not under challenge, it cannot be said that the accident occurred due to the mechanical defect of the said vehicle. But at the very same time appreciating the evidence of the injured witnesses, the fact that at the earliest point of time there was no case that the vehicle was racing and no witness from the other bus was seen examined to prove the same, I feel that it may not be safe to come to a conclusion that the accident occurred while the bus involved in the accident was overtaking another bus. For coming to this conclusion, the fact that as per Ext.P25 at the place of incident the road is having only a width of 7 mtrs. and 10 c.m. is also Crl.R.P.No.2670 of 2003 16 considered. But surely the spot of accident is described as 2.70 mtrs east to the western tar end. It is an indication that the bus was negotiating an area almost on the middle of the road. If the accident occurred fully on the western portion of the road, then it can be said that at the time of accident the bus was overtaking another vehicle. It is also pertinent to note that after the accident, as per scene mahazar, the bus was moving towards the western portion i.e. the next spot wherein it collied with the next vehicle ie. the contessa car is shown as 1 mtr. 80 c.m. towards east from the western tarred end and thereafter it proceeded towards southwards 11 mtrs 44 cm and again hit against another car at a place 1 mtr 80 c.m. east from the western tarred end. Then again it proceeded further 12 mtrs. 20 cm. and then hit against the next vehicle at a place 1 mtr. 70cm. eastwards from the western tarred end. Thus at the time of accident most probably the vehicle was moving on the western portion. But, it cannot be said that the vehicle was overtaking another bus. When the place of incident is near Crl.R.P.No.2670 of 2003 17 the middle portion of the road and not on the western margin area of the road, on appreciating all these materials it can be only said that an intention/knowledge required to attract an offence under Section 299 of IPC is lacking in this case. When the ingredients of culpable homicide is absent the corollary is that a conviction under Section 304 of IPC will not lie. Hence, the conviction under Section 304 of IPC is hereby set aside.
10. The next question is that when culpable homicide is not therein and also that an alternate charge is not framed by the court whether a conviction for offence under Section 304A can be attributed. In this case, admittedly, he was driving the bus. The case of the prosecution is that he caused the death of four persons while driving the bus. There was evidence of the injured witnesses especially by PW1 to the effect that the vehicle was moving on high speed. Surely speed cannot be equated with negligence. But all the attending circumstances can be looked into. In this case, as per the evidence of his own witness, it can be Crl.R.P.No.2670 of 2003 18 seen that the vehicles were coming as a convoy and the accident occurred on M.C. Road. When the vehicles are coming in convoy and the accident occurred on the western portion of the road that also about 2.70 mtrs. east from the western tarred end, negligence can be seen in his driving especially when in that accident three vehicles were involved. When the nature of the accident is considered, speed element also has its own relevance. The distances in between the accident spot are also given in the scene mahazar. The said aspect is not under challenge. That aspect can be accepted. Surely the petitioner got a case that he lost the control of the vehicle just before the accident. His case is that the vehicle fell in a gutter and sound heard, as per the evidence of DW1. But after perusal of the scene mahazar no such gutter is seen at the place of incident. If that be so, the version that the tie rod was broken before the accident cannot be accepted. Thus, considering the spot of accident, evidence regarding the speed and nature of evidence it can be safely concluded Crl.R.P.No.2670 of 2003 19 that there was criminal negligence which resulted in the accident.
11. Now, the next point to be considered is whether an offence under Section 304A is made out. Whether any prejudice will be caused in coming to a conclusion that the revision petitioner has committed an offence under Section 304A of IPC? As per the decision in Richipal Singh's case (supra) it can be seen that the Hon'ble Apex Court set aside the conviction under Section 304 of IPC but convicted under Section 304 A of IPC. Section 464 of Cr.P.C. is also relevant in this aspect. Thus apparently a conviction under Section 304 of IPC can be converted to a conviction under Section 304A, if the ingredients of the offence are made out. Revision petitioner was fully aware of the nature of the prosecution case. In this case, there is no dispute in respect of the death caused in the accident. It is an admitted case that four persons died. Now, I have already come to a conclusion that there was rashness or negligence by appreciating the place of incident and evidence of Crl.R.P.No.2670 of 2003 20 witnesses regarding the accident. If that be so, when the owner of the vehicle gave evidence to the effect that the petitioner herein was driving the vehicle and there is material to show that the vehicle was driven with high speed and rashness and negligence can be attributed by invoking the maxim res ipsa loquitur, it can be safely concluded that he had committed an offence under Sections 279 of IPC as well as 337 of IPC. There is materials to prove that grievous hurt also caused in the accident. Then the ingredients to make out an offence under Section 338 of IPC is also made out. Regarding the rashness and negligence of driving caused death, it can be safely concluded that he committed an offence under Section 304 A of IPC.
12. Thus, the conviction under Section 304 of IPC is hereby set aside and the petitioner is convicted under Section 304A of IPC. The conviction under Sections 279, 337, and 338 of IPC are also maintained. The learned counsel for the petitioner submitted before me that now the petitioner is a senior citizen. Surely he is facing the Crl.R.P.No.2670 of 2003 21 prosecution for the last 20 years. Whatever may be the reason for the same, in this accident four persons died. Considering the fact that the maximum sentence that can be imposed under Section 304A is two years and considering the attending circumstances including the fact that at the time of accident the tie rod is broken, I feel that a sentence of rigorous imprisonment for six months and a fine of Rs.10,000/- with default simple imprisonment for two months will be sufficient to meet the ends of justice.
13. Hence the revision petitioner is convicted under Section 304A of IPC and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.10,000/- with default simple imprisonment for two months. The conviction under Section 337 of IPC is also maintained and the sentence is modified as rigorous imprisonment for two months. The conviction under Section 338 of IPC is also maintained and the sentence is modified and reduced as rigorous imprisonment for three months. The conviction under Section 279 of IPC is also maintained and the Crl.R.P.No.2670 of 2003 22 sentence is modified as rigorous imprisonment for two months. The sentences will run concurrently. It is also made clear that he is entitled for set off for the period he was in jail.
The Criminal Revision Petition is partly allowed as above.
Sd/-
K.P. JYOTHINDRANATH JUDGE //True copy// P.A. TO JUDGE shg/