Kerala High Court
Gopakumar vs State Of Kerala Represented By Its ... on 7 June, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
THURSDAY, THE 2ND DAY OF JUNE 2016/12TH JYAISHTA, 1938
Crl.Rev.Pet.No. 1853 of 2003 ( )
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AGAINST THE JUDGMENT IN CRL.APPEAL 224/2000 of ADDITIONAL SESSIONS
JUDGE (SPL.COURT), KOTTAYAM DATED 07-06-2003
AGAINST THE JUDGMENT IN CC 551/1995 of JUDICIAL MAGISTRATE OF FIRST
CLASS,CHANGANACHERRY DATED 05-08-2000
REVISION PETITIONER/APPELLANT/ACCUSED:
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GOPAKUMAR, HOUSE NO.27/1077,
PADIPPURA HOUSE, IRUSHIMANGALAM KARA,
THIRUVANANTHAPURAM
BY ADVS.SRI.M.BALAGOVINDAN
SRI.P.M.JOSEPH
RESPONDENT/RESPONDENT/COMPLAINANT:
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STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KEARLA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. V.P. SATHI.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 02-06-2016, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
acd
P.D. RAJAN, J.
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Crl.R.P. No.1853 of 2003
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Dated this the 2nd day of June, 2016
ORDER
This revision petition has been preferred by the accused against the judgment in Crl.Appeal No.224/2000 before Additional Sessions Judge (Spl), Kottayam. He was charge sheeted in C.C.No.551/1995 by the Judicial First Class Magistrate, Changanassery for offence punishable u/s.279, 337, 338 and 304A IPC. The charge against the accused is that on 17.3.1995 at 11 p.m., he had driven a KSRTC bus bearing Registration No.KL-15/1737 in a rash and negligent manner through MC road from north to south endangering human life. When it reached at the place of occurrence, the bus hit against a motor cycle bearing No.KL-5C/1061, which was Crl.R.P. No.1853/2003 2 proceeding from south to north. As a result, the rider and the pillion rider sustained serious injuries. While undergoing treatment, the pillion rider succumbed to the injuries. In this incident, Chingavanam Police registered a crime and after completing investigation, Circle Inspector, Vakathanam laid charge in the trial Court.
2. During trial prosecution examined PW1 to PW14 and marked Exts.P1 to P10 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. The learned Magistrate convicted the accused and sentenced to rigorous imprisonment for one year u/s.304A IPC and sentenced to fine of 1000/- each for offence punishable u/s.279 & 338 IPC with a default sentence. No separate sentence was awarded u/s.337 IPC. Crl.R.P. No.1853/2003 3 Being aggrieved by that, he preferred this revision petition.
3. The learned counsel appearing for the revision petitioner contended that rash and negligent driving of the revision petitioner were not proved in this case. The learned counsel further contended that the motor cycle was entered at the place of occurrence from a nearby road and hit against the KSRTC bus, thereby the accident had occurred, which was not considered by the courts below.
4. The learned Public Prosecutor argued that the negligent aspect was obviously proved for the purpose of proving the rash and negligent driving at the place of occurrence. The imperative ingredient to prove the rashness and negligence by the prosecution was substantially established. No questions were asked in the trial Court disputing the negligence attributed against the Crl.R.P. No.1853/2003 4 revision petitioner. In the absence of such challenge in the trial Court, the accused cannot raise that contention afresh in this revisional stage. If that be the position, there is no reason to interfere in the findings of the Courts below.
5. The revisional jurisdiction of the High Court are entirely discretionary and it can be used for the purpose of satisfying the correctness, legality or propriety of the finding and sentence or order of the courts below. The object of revisional power u/s.397 and 401 of the Code of Criminal Procedure is of the general supervision in order to correct miscarriage or failure of justice. The fact that the lower court has taken a wrong view of law or misapprehended the evidence on record cannot be a reason to interfere unless it has resulted in grave injustice.
6. The principle with regard to the rashness and Crl.R.P. No.1853/2003 5 negligence has been discussed by the Apex Court in Balachandra Waman Pathe v. State of Maharashtra [1968 ACJ 38] and held as follows:
"There is a distinction between a rash and a negligent act. In the case of a rash act the criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequence. Criminal negligence 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. Negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. A culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and if he had he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection.
In the instance case the appellant was driving his car at a speed of 35 miles an hour, the speed permissible under the rules. No other circumstance was pointed out to Crl.R.P. No.1853/2003 6 show that he was driving in a reckless manner. Therefore, he cannot be said to have been running the risk of doing an act with recklessness or indifference as to the consequences. But he was undoubtedly guilty of negligence. He h ad a duty to look ahead and see whether there was any pedestrian in the pedestrian crossing. It is likely that while driving the car he was engrossed in talking with the person who was sitting by his side. By doing so, he failed to exercise the caution incumbent upon him. His culpable negligence and failure to exercise that reasonable and proper care and caution required of him resulted in the occurrence. He was therefore guilty of offence under S.304A."
7. In order to ascertain any illegality committed by the courts below, I have perused the oral evidence of PW1, who was the rider of the motor cycle on 17.3.1995 at 11 p.m. His evidence shows that he was riding KL-5C/1061 Hero Honda from south to north through the MC road. When he reached at Anchalkutty junction, the offending vehicle came from the opposite direction at a high speed, at that time PW1 slow down his motor cycle, but the bus hit on handle of the motor bike, as a result motor cycle was thrown away and the pillion rider of the motor cycle Crl.R.P. No.1853/2003 7 fell down on the western side and his head hit upon a slab and sustained serious head injury. PW3 is another eye witness supported the case, who deposed that the revision petitioner was rash and negligent at the place of occurrence and the accident was due to the negligence of the revision petitioner. PW2 gave Ext.P1 statement to the Chingavanam Police, but he is not an eye witness. Another occurrence witness PW4 turned hostile and did not support the prosecution case. From the evidence of PW1 and PW3, it is clear that the deceased sustained serious injury. The revision petitioner contended that the motor bike came from a by road and the accident had occurred due to the negligence of PW1, but no evidence has been adduced in the trial Court to substantiate that contention. From the evidence of PW1 and PW3, it is seen that revision petitioner was rash and negligent for the accident. Crl.R.P. No.1853/2003 8 Therefore, I am not disbelieving that oral testimony.
8. Immediately, the injureds were removed to Medical College Hospital. PW9 examined PW1 and issued Ext.P5 certificate. He noticed a fracture on the right scapula and four injuries to PW1. PW10 Asst. Professor of Forensic Medicine conducted postmortem examination of the deceased Siby and issued Ext.P6 certificate. From the evidence of PW9 and PW10 it is clear that the deceased Siby sustained serious injuries in the accident and he died due to the injuries sustained in the accident.
9. What is seen from the place of occurrence is relevant in this circumstance. The Sub Inspector of Police, Chingavanam Police Station had recorded Ext.P1 statement of PW2 and registered a crime. Ext.P9 is the FIR. The Sub Inspector, Chingavanam arrived at the place of occurrence and prepared the vehicle mahazar and Crl.R.P. No.1853/2003 9 Ext.P2 scene mahazar. As per Ext.P2, the place of occurrence of road lies north to south. The motor bike was plying from south to north and the offending vehicle was proceeding towards southern side from north. Therefore, speed alone is not a criteria for the rashness or the negligence on the part of the driver. A motor vehicle is expected to drive at a normal speed on a public road. The relationship between speed and rashness or negligence depends upon the place and time. The scene of occurrence is 1.45 km east of the western tar end of the road which is having width of 10 metres 67 cms. The bus was coming from north to south and was on the wrong side of the road. The proper side of the revision petitioner is the eastern side of the road. Even though he came forward 10 mtrs to the western side, the evidence of PW1 and PW3 and the place of occurrence recorded in Ext.P2, Crl.R.P. No.1853/2003 10 it is clear that the revision petitioner was driving the vehicle rashly and negligently through the wrong side of the road and the vehicle went out of his control and hit the other motor bike. It appears that no illegality has been committed by the trial Court in finding the negligence. I am of the view that both courts below rightly appreciated the evidence and convicted the revision petitioner and I do not find any illegality in the above findings. Therefore, the conviction u/s.279, 337, 338 and 304A IPC is only to be confirmed.
10. Having regard to the facts of the case and the circumstances under which it was committed, I am of the opinion that incident happened 16 years back, hence,the sentence imposed by the trial Court is to be modified (Relied the decision of the Apex Court in Chandramohanan Nair v. State of Kerala [1994 SCC (Crl) 1750]). The Crl.R.P. No.1853/2003 11 revision petitioner is sentenced to rigorous imprisonment for three months and fine of 5,000/- u/s.304(A) IPC, in default, simple imprisonment for three months. The sentence imposed by the trial Court u/s.279 and 338 IPC is confirmed. The revision petitioner is directed to surrender in the trial Court to undergo the modified sentence, failing which the learned Judicial First Class Magistrate, Chanaganassery shall issue non bailable warrant against the revision petitioner.
P.D. RAJAN, JUDGE.
acd Crl.R.P. No.1853/2003 12 Crl.R.P. No.1853/2003 13