Kerala High Court
Sunilkumar vs State Of Kerala on 20 November, 2024
Crl.R.P.1155/2017
1
2024:KER:86956
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 20TH DAY OF NOVEMBER 2024 / 29TH KARTHIKA, 1946
CRL.REV.PET NO. 1155 OF 2017
CRIME NO.103/2012 OF Kulamavu Police Station, Idukki
CRA NO.191 OF 2015 OF III ADDITIONAL SESSIONS COURT,
THODUPUZHA
CC NO.378 OF 2012 OF JUDICIAL MAGISTRATE OF FIRST
CLASS-I, IDUKKI
REVISION PETITIONER/APPELLANT/ACCUSED
SUNILKUMAR,
S/O.RAVEENDRAN NAIR, AGED 25 YEARS,
NIRAPPUVILAPUTHENVEEDU, THIRUVANANTHAPURAM,
NEYYATINKARA TALUK, VILAPPIL VILLAGE.
BY ADVS.
SRI.RENJITH B.MARAR
SRI.R.ANAS MUHAMMED SHAMNAD
SMT.LAKSHMI.N.KAIMAL
SMT.RESHMI JACOB
SRI.P.S.SYAMKUTTAN
SRI.P.VISHNU PAZHANGANAT
RESPONDENT/RESPONDENT/COMPLAINANT
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KEALA, ERNAKULAM, REPRESENTING THE SUB INSPECTOR OF
POLICE, KULAMAVU.
SMT.MAYA M.N., PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 7.11.2024, THE COURT ON 20.11.2024 DELIVERED THE
FOLLOWING:
Crl.R.P.1155/2017
2
2024:KER:86956
ORDER
[Crl.Revision Petition No.1155 of 2017] Dated : 20th November, 2024 This Criminal Revision Petition has been preferred by the appellant in Crl. Appeal No.191 of 2015 on the file of the III Additional Sessions Judge, Thodupuzha, against the judgment dated 31.8.2017 partly allowing the said appeal, by confirming the conviction under Section 279 and 304-A of IPC and Section 3(1) r/w Section 181 of the Motor Vehicles Act (M.V.Act, for short) and modifying the sentence passed against the revision petitioner.
2. The prosecution case is that on 16.9.2012 at about 3.15 p.m., the accused being the driver of the ambulance bearing registration No. KL-22- 2388 driven the same in a rash and negligent manner so as to endanger human life along the Kulamavu - Thodupuzha public road and when it reached Ayyakkad -Nadukani, it hit against the jeep, which came in opposite direction, bearing registration No.KL-6-9234, in which PW1, his wife and others were travelling and thereafter, hit against another car, which came from behind the jeep. As a result of the incident, the wife of PW1 sustained serious injuries and she succumbed to the injuries, while PW1 sustained minor injuries. It is also alleged that the accused did not have valid driving licence, at the time of Crl.R.P.1155/2017 3 2024:KER:86956 the incident.
3. The evidence in the case consists of oral testimonies of PWs 1 to11 and documentary evidence Exts. P1 to P13. No evidence was adduced by the accused. After evaluating the evidence on record, the trial court found the accused guilty of all those offences and sentenced him to undergo various terms of punishment including simple imprisonment for one year and to pay a fine of Rs.2,000/- under Section 304-A IPC. In appeal, while sustaining the conviction, the sentence under Section 304-A IPC was reduced to simple imprisonment for six months and to pay a fine of Rs.2,000/- under Section 304-A IPC. Dissatisfied with the above judgment of the Appellate Court, he preferred this revision, raising various grounds.
4. Now the point that arise for consideration is the following:
Whether the conviction and sentence passed by the trial court as confirmed and modified by the Sessions Judge, under Section 279 and 304-A of IPC and Section 3(1) r/w Section 181 of the Motor Vehicles Act against the revision petitioner is liable to be interfered with, in the light of the grounds raised in the Revision Petition?Crl.R.P.1155/2017 4
2024:KER:86956
5. Heard Sri. Renjith B. Marar, the learned counsel for the revision petitioner as well as Smt.Maya M.N, the learned Public Prosecutor.
6. The point:- The learned counsel for the revision petitioner would argue that in this case there is no proper identification of the accused. Further, according to him, the prosecution has not succeeded in proving rash and negligent driving by the accused, that none of the witnesses have identified the vehicle involved in the accident, that the evidence available on record is not sufficient to attract the offence under Section 304-A of IPC and that, the prosecution has not proved the place of occurrence. In the light of the above grounds, he prayed for allowing the revision petitioner and for acquitting the accused. On the other hand, the learned Public Prosecutor would argue that from the evidence of PWs 2 to 6, the prosecution has succeeded in proving the charge against the accused. Therefore, according to her, there is absolutely no ground to disbelieve the case of the prosecution and she therefore, argued for dismissing the revision Petition.
7. PW1 is the husband of the deceased, as also a passenger in the jeep involved in the accident. He would swear that on 16.9.2012 at about 3.30 p.m. while he along with his wife and three others were travelling in a jeep towards Painavu, an ambulance came in the opposite direction and hit against Crl.R.P.1155/2017 5 2024:KER:86956 the jeep. In the incident his wife died and he got injured. However, according to him, he does not know the reason for the incident. He also does not know the driver of the ambulance as well as its number. However, he identified his signature in Ext.P1 FI statement.
8. PW2 was the driver of the jeep involved in the accident. He would swear that on one day while he was driving a jeep from Pala towards the place called Prakash in Idukki district and when the jeep reached near Nadukani, he saw an ambulance coming downhill in opposite direction in very high speed. On seeing the way in which the ambulance came, he stopped the jeep. At that time, the ambulance dashed against the jeep on his right hand side. Due to the impact of the hit by the ambulance, the left side of the jeep hit against the bund on the left hand side. Thereafter, the ambulance proceeded forward and dashed against a white ambassador car, which came from behind the jeep and then toppled over the car. Because of the hit by the ambulance on the jeep, the passenger who was sitting behind the driver's seat, sustained injury on her head and she was taken to hospital in another vehicle. He identified the accused as the driver of the ambulance. During the cross-examination, the defence taken by the accused was to the effect that it was not the accused who had driven the ambulance and also that the accident occurred due to the negligence of PW2. Crl.R.P.1155/2017 6
2024:KER:86956 However, he stoutly denied those suggestions. It is interesting to note that the evidence given by PW2 regarding the manner in which the accident occurred was not challenged during the cross-examination.
9. PW3 was another passenger in the jeep involved in the incident. He would swear that, at about 3 p.m. on one day about two years back, while he was travelling in a jeep along the road towards Idukki, and when they reached the place called Kuruthikkalam, an ambulance came in over speed from the opposite direction, and dashed against the jeep. Due to the impact of the above hit, the jeep fell on a drain on the left hand side. The ambulance hit against the head of Gracy, who was sitting behind the driver's seat and as a result of which, she sustained injuries on her head. She was taken first to the hospital at Moolamattam and from there she was taken to Thodupuzha, Chazhikkattu hospital wherein it was declared that she was brought dead. According to him, the accused was the driver of the ambulance at the time of the incident. However, he does not remember the number of the ambulance. He also deposed that during the accident, the ambulance toppled down. Though, during the chief examination he claimed that the accused was the driver of the ambulance, during the cross-examination, he deposed that he came to know about the said fact from the accused himself. According to him, Crl.R.P.1155/2017 7 2024:KER:86956 the accused himself told him that he was the driver of the ambulance. Though it was suggested to PW3 that there was slop as well as curve in the said road and also that the accused was not the driver of the ambulance, the manner in which the accident occurred, as deposed by PW3, was not challenged during the cross-examination.
10. PW4 was another passenger in the jeep involved in the accident. She would swear that while she was travelling in a jeep, by sitting in the front seat of the above jeep, and when it reached near Kulamavu, she saw an ambulance coming in opposite direction in over speed. On seeing the same, the jeep driver stopped the jeep on the left hand side of the road. At that time, the ambulance hit on the back side of the jeep and thereafter, hit against a car which came behind the jeep. The ambulance toppled down and Gracy, a passenger in the jeep sustained serious injuries. According to PW4, the carelessness of the driver of the ambulance was the reason for the accident. She also identified the accused who was present in the dock as the driver of the ambulance. It is true that during the cross-examination, PW4 admitted that she had no prior acquaintance with the accused. During the cross-examination, she further clarified that she had seen the ambulance coming towards the jeep. During the cross-examination, she also deposed that except over-speed, she Crl.R.P.1155/2017 8 2024:KER:86956 has not seen any other defects from the side of the ambulance driver. During the cross-examination of PW4 also, her evidence regarding the manner in which the accident occurred was not challenged.
11. PW5 is the driver of the ambassador car which came from behind the Jeep. He would swear that on 16.9.2012 at about 3.40 p.m, while he was driving the ambassador car and reached between Nadukani and Ayyakadu bus stop, an ambulance which came in opposite direction dashed against a jeep which was moving in front of his car and thereafter, the ambulance hit against his car and caused damage to his car. The persons travelling in the jeep sustained injuries and a lady was taken to the hospital. According to him, there was a board in the ambulance displaying the name as 'Ranjith Ambulance'. He also identified the accused as the driver of the said ambulance. During the cross-examination, when he was asked about the reason for the incident, he deposed that since the ambulance hit against his car, he can say that the ambulance was on the wrong side and that is the reason for the incident. During the cross-examination of PW5 also the suggestion put by the learned counsel for the accused was to the effect that the accused was not the driver of the ambulance. The evidence of PW5 with regard to the manner in which the accident occurred was also not challenged during the cross-examination. Crl.R.P.1155/2017 9
2024:KER:86956
12. PW6 was a Priest as well as a passenger in the ambassador car involved in the incident. He would swear that while he was travelling in the car, an ambulance came along the wrong side and first hit against a jeep and because of the impact of the hit, the jeep fell towards the left side. Thereafter, the ambulance hit against the car, toppled down and again hit on the back side of the car. According to him, the carelessness of the driver of the ambulance was the reason for the incident. He also identified the accused as the driver of the above ambulance. During the cross-examination he deposed that the car moved in 30-40 km per hour and there was a distance of about 10-12 metres with the jeep moving in its front. During the cross-examination of PW6, the suggestion put was to the effect that the accused was not the driver of the ambulance and also that since the car of PW6 got damaged, he was stating falsehood against the accused. However, the evidence of PW6 regarding the manner in which the incident occurred was not specifically challenged during the cross-examination.
13. It is true that PW1 has not identified the accused as the driver of the ambulance involved in the incident. He also has not stated the reason for the accident. On the other hand, though PW3 identified the accused as the driver of the ambulance, during the cross-examination he clarified that the Crl.R.P.1155/2017 10 2024:KER:86956 above information was given to him by the accused himself. The above evidence of PW3 that the accused himself told him that he was the driver of the ambulance was not challenged during cross-examination.
14. PWs 2, 4, 5 and 6 in categorical terms deposed that it was the accused who was the driver of the ambulance involved in the incident. Out of which, only to PW4, a question was asked whether she had prior acquaintance with the accused, to which she replied in the negative. However, no such questions were asked to PWs 2, 5 and 6. In short, the evidence of PWs 2, 5 and 6 that the accused was the driver of the ambulance involved in the incident, could not be disbelieved. It is true that during the cross-examination of PWs 2, 5 and 6 it was suggested that the accused was not the driver of the ambulance. However, they stoutly denied those suggestions. During the cross-examination of PWs 2, 5 and 6, the accused had no case that they had no prior acquaintance with the accused.
15. Even then, relying upon the following decisions, the learned counsel would argue that in case the witnesses had no prior acquaintance with the accused, identification before the court for the first time after the incident, cannot be relied upon. The decisions are Sudip Paul and others v. State of Assam and Another (2021 KHC 5679), Krishnankutty v. State of Kerala Crl.R.P.1155/2017 11 2024:KER:86956 (1988 KHC 194), Rafeeque v. Sub Inspector of Police, Kunnamkulam police station and Another (2020 (3) KHC 715), Palliyalil Sidique v. State of Kerala (2013 (3) KHC 302), Jayan and Others v. State of Kerala (2021 (6) KHC 400), Rabindra Kumar Pal @ Dara Singh v. Republic of India (2011 KHC 4063) and Dana Yadav v. State of Bihar (2002 KHC 1355). He would further argue that in the instant case, failure to conduct test identification parade is fatal to the prosecution case.
16. It is true that in case the witness does not have prior acquaintance with the accused, it may not be safe to rely upon the identification made before the court, after a long time. However, as I have already noted above, in the instant case, though PWs2, 4, 5 and 6 identified the accused, only to PW4 a question was asked whether he had prior acquaintance with the accused. No such questions were put to PW2, 5 and 6 and as such, there was no occasion for them to disclose whether they had prior acquaintance with the accused or not. In the above circumstances, it cannot be held that PW2, 5 and 6 had no prior acquaintance with the accused and as such the identification of the accused before the court could not be disbelieved on the ground that no test identification parade was conducted. Moreover, from the evidence on record it is revealed that in the incident, the ambulance toppled down and even the jeep Crl.R.P.1155/2017 12 2024:KER:86956 fell on the drain on the left hand side due to the impact of the hit and it took about 20 minutes' time to take the injured to the hospital, as the door of the jeep could not be opened. Therefore, there was enough time for the witnesses to see the driver of the ambulance and to have an image imprinted in their mind. On that account also, the identification of accused by PWs 2, 4, 5 and 6 before the court could not be disbelieved.
17. Further, as I have already noted above, the evidence of PWs 2 to 6 with regard to the manner in which the accident occurred was not challenged during their cross-examination. From their evidence, it is revealed that while the Jeep was proceeding uphill, towards Painavu direction, the ambulance came downhill, in opposite direction in high speed. PW2, the driver of the jeep in clear terms deposed that on seeing the ambulance coming in opposite direction in over speed, he stopped the jeep and it was at that time, the ambulance came and hit against the jeep. Similarly PW4, a passenger in the jeep also deposed that on seeing the ambulance coming in opposite direction in high speed, the jeep driver stopped the jeep on the left side of the road and it was at that time the ambulance came towards the jeep and hit against it, resulting in the accident. Both of them would further swear that after hitting against the jeep, the ambulance proceeded further and hit against the Crl.R.P.1155/2017 13 2024:KER:86956 ambassador car which came behind the jeep and toppled down. The above evidence of PWs2 and 4 that the ambulance hit against the jeep while the jeep was in stationary position, was not challenged during cross-examination.
18. During cross-examination, PW5 also deposed that the jeep driver kept his side, but the ambulance was driven by its driver in a careless manner and that is why the incident occurred. He also deposed that the ambulance was on the wrong side. PW6 also supported the evidence of PW5 that the ambulance was on the wrong side and that is one of the reasons for the accident. It was argued by the learned counsel for the revision petitioner that there is no consistency among the witnesses with regard to the reason for the incident. According to PWs 2,3,4,5 and 6, the ambulance was in overspeed. At the same time, PWs 5 and 6 deposed that the ambulance was on the wrong side also, in addition to stating that it was in over-speed. It was in the above context, it was argued that there is inconsistency among the witnesses with regard to the reason for the incident.
19. The interesting aspect is that the evidence of PWs 2,3,4,5 and 6, that the ambulance was in over-speed and the evidence of PWs 5 and 6 that the ambulance was on the wrong side were not challenged in cross-examination. Therefore, as argued by the learned Public Prosecutor, the portion of the Crl.R.P.1155/2017 14 2024:KER:86956 evidence which was not challenged in cross examination is to be deemed as admitted. In the decision in Laxmibai (Dead) through Lrs. and Another v. Bhagwantbuva (Dead) through Lrs. and Others, 2013 (4) SCC 97, relied upon by her, in paragraph 31 the Apex Court held thus:
"Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and Crl.R.P.1155/2017 15 2024:KER:86956 fairness in dealing with witnesses. (See: Khem Chand v. State of Himachal Pradesh, AIR 1994 SC 226; State of U.P. v. Nahar Sing (dead) & Ors., AIR 1998 SC 1328; Rajinder Pershad (Dead) by L.Rs. v. Darshana Devi (Smt.), AIR 2001 SC 3207; and Sunil Kumar & Anr. v. State of Rajasthan, AIR 2005 SC 1096). "
20. It is true that, PWs 2 to 4 have not stated that the ambulance came in the wrong side. However, as I have already noted above, the manner in which the incident occurred as deposed by PWs 2 to 6, was not challenged by the accused. Therefore, from the evidence of PWs 2 to 6, it can be seen that while the jeep was moving along the left side, the ambulance came in opposite direction and in over-speed. On seeing the same, the jeep driver stopped the jeep on the left side and it was at that time, the ambulance came and dashed, first against the jeep and then against an ambassador car, which came behind the jeep. Thereafter, the ambulance toppled down and fell again on the car. When the evidence on record is evaluated in the above context, it can be seen that the ambulance which was supposed to move through the right hand side of the jeep, came towards the jeep and hit against the jeep as well as the ambassador car and finally toppled down on the left hand side of the jeep, which is the wrong side of the ambulance. Therefore, it can be seen that the evidence of PWs 5 and 6 that the ambulance came in the wrong side is true and correct.
Crl.R.P.1155/201716
2024:KER:86956
21. Though PWs 2 to 4 specifically did not state that the ambulance came in the wrong side, from the sum and substance of their evidence, it is revealed that, the ambulance came towards the jeep, which was stopped on its left side. In other words, if the ambulance did not come on the wrong side, it would not have dashed against the jeep and car. It shows that the evidence of PWs 2 to 6 are not at all contradictory to each other, rather they are complementary to each other. Since it is revealed from the evidence of the M.V.I that the ambulance had no mechanical defects, unless and until the driver lost its control, it would not have moved to the wrong side and dashed against the jeep and car. If the driver lost its control, it would definitely have been in a very high speed, as deposed by PWs 2 to 6. A person driving a vehicle in public road is expected to drive the vehicle in control in such manner as to enable him to prevent hitting against other vehicles or pedestrians. Since he drove the ambulance downhill, in such a speed, so as to completely lose his control over it, it is evident that the driver has not only failed to exercise reasonable care, but also shown culpable negligence, by taking unwanted risk while driving the ambulance. Therefore, from the combined effect of the evidence of PWs2 to 6 it can be safely concluded that the ambulance driver had driven the vehicle in over-speed as well as in a rash Crl.R.P.1155/2017 17 2024:KER:86956 and negligent manner so as to endanger human life.
22. Relying upon the decision in Suresh v. State of Kerala, 2016 KHC 474, the learned counsel would argue that the speed alone cannot be considered as rashness and negligence. It is true that speed alone will not amount to rashness or negligence, especially in a straight road or highway, where there was no obstruction from other vehicle or pedestrians. In the decision in Palliyalil Sidique v. State of Kerala (2013 (3) KHC 302) relied upon by the learned counsel for the revision petitioner also, it was held that high speed does not bespeak of either negligence or rashness by itself. However, in the instant case, as I have already noted above, the ambulance came in opposite direction in very high speed and it hit against the jeep which was parked on the left side of the road. The principle "Res ipsa loquitur" can be applied in the instant case, to prove the rashness and negligence. There is absolutely no evidence to show that there was any extreme necessity for the ambulance driver to direct the vehicle towards his right hand side. He also has no case that he turned the ambulance towards his right hand side in any compelling exigencies, like avoiding any mishap. In the absence of any such explanation from the side of the accused, it is to be presumed that there was no such necessity for diverting the direction of the ambulance towards the wrong Crl.R.P.1155/2017 18 2024:KER:86956 side and as such it was a case in which the driver lost the control over the ambulance because of over-speed and rash and negligent driving. Therefore, the above decisions relied upon by the learned counsel in support of the argument that there was no rashness or negligence, does not apply to the facts of this case.
23. Further, as I have already noted above, the evidence of PWs 2, 5 and 6 that it was the accused who had driven the ambulance at the time of incident, could not be disbelieved. The evidence of PW3 that the accused himself told him that he was the driver of the ambulance, which remains unchallenged, also substantiates the above evidence of PWs2, 5 and 6. Therefore, from the evidence of PWs 2,3,5 and 6 it can be safely concluded that it was the accused who had driven the ambulance involved in the incident, at the relevant time.
24. It was argued that in this case there is no evidence to prove the identity of the ambulance involved in the incident. It is true that the witnesses have not spoken about the number of the above ambulance. It is quite natural that when a witness is examined after two years, he may not remember the number of the vehicle involved in the incident. However, PWs1 to 6 in clear terms deposed that the vehicle dashed against the Jeep was an ambulance. Crl.R.P.1155/2017 19
2024:KER:86956 PW9, the Sub Inspector, Kulamavu, would swear that on the date of the incident itself he had recorded Ext.P1 FI statement and registered crime No.103/2012. On the same day, he prepared Ext.P6 inquest. On the next day, on 17.9.2012, he visited the place of occurrence which is by the side of Kulamavu-Thodupuzha road and prepared Ext.P5 scene mahazar. Along with the scene mahazar, he had seized the jeep bearing No. KL-6-9234, got it examined by AMVI and released the same to the owner as per Ext.P7 kychit. Similarly, he had seized the Tempo Traveller ambulance bearing No. KL-22- 2388 also as per Ext.P5 mahazar, got it examined by AMVI and released the same to the owner as per Ext.P8 kychit. The car bearing No. KL-3Q-4119 was also seized as per the scene mahazar, got it examined by AMVI and released to the owner as per Ext.P9 kychit. He filed Et.P10 report showing the name and address of the accused as well as Ext.P11 report adding Section 3(1) r/w 181 of the Motor Vehicles Act as it was revealed that the accused did not have driving license at the time of the incident.
25. PW7 was the Motor Vehicle Inspector, Thodupuzha, who had examined the vehicles involved in the incident and issued Exts. P2 to P4 reports. He would swear that on 19.9.2012 at 1.20 p.m., while he was working as MVI, Thodupuzha, he had inspected the ambulance bearing registration Crl.R.P.1155/2017 20 2024:KER:86956 No.KL-22-2388 at the premises of Kulamavu police station and issued Ext.P2 inspection report. At the time of inspection, he had noticed the following damages in the above ambulance.
1. Break system found efficient.
2. No mechanical defects noted down
3. Left side glass 3 Nos. damaged.
4. Left side roof destroyed.
5. Left side body damaged.
6. Front both doors damaged.
7. Right side door stand and quarter glass broken.
8. Front both mud guard damaged.
9. Front bumper damaged.
10. Front grill and radiator damaged.
26. On the same day, he had inspected the Mahindra jeep bearing No.KL-6-9234 at the same premise and issued Ext. P3 report. He had noticed the following damages in the above jeep:
1. Front glass frame damaged.
2. Right side body damaged.
3. Front right side door damaged.
4. Front right side foot rest damaged.
5. Roof Rexin and pipes damaged.
6. Rear right side tire punctured.
7. Wheel disc were damaged.
8. Break system was found efficient.Crl.R.P.1155/2017 21
2024:KER:86956
9. No mechanical defects were noted down.
27. On the same day, he had inspected the ambassador car bearing No.KL-3Q-4119 at the same premise and issued Ext. P4 inspection report. The damages noticed by him in the ambassador car are the following:
a). Front both head lights were damaged.
b). Front grill damaged.
c). Front bumper left side damaged.
d). Front bonnet damaged.
e). Front left side mud guard damaged.
f). Front left side park light broken.
g). A/c conditioner was damaged.
h). Radiator was bent.
i). Front left side inner mud guard damaged.
j). Front and rear right side door damaged.
k). Front right side mud guard misallied.
l). Rear outside right side quarter panel damaged.
m). Break system was found efficient.
n). No mechanical defect were noted down.
28. It is true that at the time of evidence, PW1 has not stated the number of the ambulance involved in the incident. However, in Ext. P1 FI statement, he had given the details of the ambulance involved in the incident. It is true that the above number of the ambulance mentioned in Ext. P1 FI statement could not be taken into account in view of the fact that at the time of Crl.R.P.1155/2017 22 2024:KER:86956 evidence, he has not given its number. However, with regard to the manner in which the Investigating Officer first came to know about the number of the ambulance involved in the incident, can be from the information given by PW1 through Ext.P1 FI statement. Immediately thereafter, he had seized all the three vehicles involved in the incident from the place of occurrence, taken them to Kulamavu police station and on the succeeding day, those vehicles were inspected by PW7, the AMVI, and at the time of inspection, serious damages were noticed in all the three vehicles. In the above circumstances, I find no merits in the argument advanced by the learned counsel that the ambulance involved in the incident was not properly identified. Moreover, since all the three vehicles were seized by the Investigating Officer from the place of occurrence, the contention that the place of occurrence was not properly identified is also devoid of any merits.
29. Relying upon the evidence of PW8, an attestor to Ext. P5 scene mahazar, that he affixed his signature in Kulamavu police station, the learned counsel would argue that therefore it is to be presumed that the scene mahazar was also prepared at the police station and not at the place of occurrence. It is true that during the cross-examination, PW8 deposed that he had signed in Ext. P5 scene mahazar at the Kulamavu police station and also that he does not Crl.R.P.1155/2017 23 2024:KER:86956 know the contents of the said mahazar. However, the above answer given by PW8 does not mean that the scene mahazar was also prepared at the police station. It is true that no attempt was seen made from the side of the Prosecutor to clarify the above aspect during the re-examination of PW8.
30. At the same time, it is to be noted that PW9-the Investigating Officer in clear terms deposed that he prepared Ext.P5 scene mahazar after visiting the scene of occurrence which is on the northern side of Kulamavu - Thodupuzha road, on the eastern side of Ayyakadu waiting shed. It is interesting to note that during the cross-examination of PW9, his evidence to the effect that the scene of occurrence was on the northern side of Kulamavu - Thodupuzha road and on the eastern side of Ayyakadu waiting shed, was not at all challenged. Further, during the cross-examination of PW9, the learned counsel for the accused has brought out that the place of occurrence is a slop and also that there was a curve below the place of occurrence. Since the place of occurrence as deposed by PW9, was not challenged during his cross- examination, now the learned counsel for the revision petitioner could not take a stand that the scene of occurrence was not properly identified while preparing Ext. P5 scene mahazar.
31. Similarly, PW9, the Investigating Officer has seized all the three Crl.R.P.1155/2017 24 2024:KER:86956 vehicles involved in the incident, from the place of occurrence. When those vehicles were examined by PW7 the MVI, he had noticed extensive damage to all of them, including the ambulance. The damages noted by PW7 on the ambulance in the inspection report substantiates the evidence of PWs 2 to 6. Therefore, there is no merit in the contention that the ambulance involved in the incident was not properly identified.
32. In Ext. P5 scene mahazar, the position of the vehicles found after the accident has been specifically noticed. Relying upon the decision of this Court in Mohanan v. State of Kerala, 2011 (3) KHC 680, the learned counsel would argue that the contents of the scene mahazar could not be relied upon for the sole reason that the scene mahazar was marked in this case. It is true that the Investigating Officer has not narrated the contents of the scene mahazar at the time of evidence. Therefore, as argued by the learned counsel the above contents cannot be treated as evidence. However, even in the absence of the contents of Ext. P5, from the evidence of PWs2 to 6 and from the remaining evidence, including that of the MVI and Exts. P2 to P4 inspection reports, the prosecution has succeeded in proving that it was the accused who had driven the ambulance at the time of the incident in a rash and negligent manner so as to endanger human life and hit against the jeep which Crl.R.P.1155/2017 25 2024:KER:86956 resulted in causing severe injuries on the head of the deceased Gracy.
33. PW10 was the RMO, Chazhikkattu hospital, Thodupuzha, who had examined PW1 on 16.9.2012 and issued Ext. P12 wound certificate. At the time of examination, he had noticed contusion on the low back of PW1. The alleged history given was the road traffic accident in Kuruthikkalam near Nadukani on 16.9.2012. PW11 was the CMO, Taluk Head Quarters hospital, Thodupuzha, who had conducted postmortem examination on the body of deceased Gracy and issued Ext. P13 postmortem certificate. She had noticed several injuries on the body of the deceased and the opinion as to the cause of death is, death was due to injury sustained on head and chest. Therefore, from the evidence of PWs10 and 11 it is also revealed that in the above incident, PW1 sustained hurt and his wife Gracy died.
34. The prosecution has a further case that the accused had no driving licence at the time of the incident. At the time of arguments, the learned counsel for the revision petitioner has not disputed the above fact. The accused also has not produced his driving licence during the relevant period, even at the time of argument before this Court. In the above circumstance, the presumption is that he had no valid driving licence at the time of accident. Therefore, from the evidence on record, it can be seen that the prosecution has Crl.R.P.1155/2017 26 2024:KER:86956 succeeded in proving the offences under Sections 279, 337 and 304-A IPC and Section 3(1) r/w Section 181 of the M.V. Act, and as such, I do not find any grounds to interfere with the finding of conviction made by the trial court as confirmed by the appellate court.
35. The trial court has sentenced the accused to pay a fine of Rs.1000/- under Section 279 IPC and to undergo imprisonment for five days and to pay a fine of Rs.500/- under Section 337 IPC, simple imprisonment for one year and a fine of Rs.2000/- under Section 304-A IPC and a fine of Rs.500/- under Section 3(1) r/w 181 of the M.V.Act. The appellate court reduced the sentence under Section 304-A IPC to simple imprisonment for six months and to pay a fine of Rs.2000/-. However, the sentence with regard to the other offences were sustained. Considering the entire facts, including the fact that the incident was of 2012, I hold that the substantive sentence of imprisonment can be further reduced to simple imprisonment for two months under Section 304-A IPC. Further, I hold that substantive sentence of imprisonment is not required under Section 337 IPC.
36. In the result, this Revision Petition is allowed in part as follows :
While sustaining the conviction under Section 279, 337 and 304-A IPC and Section 3(1) r/w 181 of the M.V.Act, the sentence under Section 304-A Crl.R.P.1155/2017 27 2024:KER:86956 IPC is reduced to simple imprisonment for two months and to pay a fine of Rs.2000/-. Punishment for the offence under Section 337 IPC is limited to fine of Rs.500/-. The default sentence imposed by the trial court and confirmed by the appellate court is sustained.
Sd/-
C.Pratheep Kumar, Judge Mrcs/7.11