Kerala High Court
Robinson vs State Of Kerala on 19 June, 2025
2025:KER:43803
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 19TH DAY OF JUNE 2025 / 29TH JYAISHTA, 1947
CRL.A NO. 76 OF 2012
AGAINST THE CONVICTION AND SENTENCE IN S.C. NO.557 OF 2007 DATED
19.12.2011 ON THE FILES OF THE ADDITIONAL SESSIONS COURT (FAST TRACK
COURT-I), THIRUVANANTHAPURAM
APPELLANT/ACCUSED:
ROBINSON
S/O.GEORGE, KULATHINKARA PUTHEN VEEDU, PEPPAD DESOM,
PEROORKADA VILLAGE, NOW RESIDING AT MONI NIVAS, NEAR
CHERIYAKONNI DEVI TEMPLE, ARUVIKKARA VILLAGE.
BY ADV SRI.G.SUDHEER
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
ERNAKULAM, PIN-682031
PP - ADV SHEEBA THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.06.2025, THE
COURT ON 19.06.2025 DELIVERED THE FOLLOWING:
2025:KER:43803
Crl.A. No. 76 of 2012
2
"C.R"
JUDGMENT
Dated this the 19th day of June, 2025 The sole accused in S.C. No.557/2007 on the files of the Additional Sessions Court (Fast Track Court-I), Thiruvananthapuram, has filed this appeal, under Section 374(2) of the Code of Criminal Procedure, 1973, challenging the conviction and sentence imposed against him by the Additional Sessions Judge as per the judgment dated 19.12.2011, finding him guilty for the offences punishable under Sections 337, 338, 304A of the IPC as well as under
Section 3 read with 181 of the Motor Vehicles Act, 1988 [hereinafter referred as 'MV Act' for short]. The State of Kerala, represented by the Public Prosecutor is arrayed as the sole respondent herein.
2. Heard the learned counsel for the appellant and the learned Public Prosecutor, in detail. Perused the verdict under challenge and the records of the trial court.
3. Parties in this appeal shall be referred as 'prosecution' and 'accused', hereafter.
2025:KER:43803 Crl.A. No. 76 of 2012 3
4. The prosecution case in brief:- The allegation of the prosecution is that, at about 01.00 p.m. on 02.12.2005, without having a valid driving licence, the accused herein driven the KSRTC bus bearing registration No.KL-15-3434 in a rash and negligent manner along Vellayambalam - R.R. Lamp Road, with knowledge that the said driving would likely to cause death of human beings and with said knowledge he dashed the bus against a motorcycle bearing registration No.KL-01-N-861 ridden by one Jayakumar. In consequence to the occurrence, Jayakumar, the rider of the motorcycle died and the pillion rider sustained multiple injuries. On the said premise, initially, crime was registered alleging commission of offences punishable under Sections 337, 338 and 304 of the IPC as well as under Section 3 read with 181 of the MV Act, by the accused. After completing investigation, Final Report was filed alleging commission of the said offences by the accused.
5. When the case was committed to the Court of Sessions, Thiruvananthapuram by the Judicial First Class Magistrate Court-I, the same was made over to the 2025:KER:43803 Crl.A. No. 76 of 2012 4 Additional Sessions Court, Thiruvananthapuram and the learned Additional Sessions Judge framed charge for above said offences and tried the case.
6. During trial, PWs 1 to 16 were examined, Exts.P1 to17 and MO1 series were marked on the side of the prosecution. During cross-examination of prosecution witnesses, Exts.D1 to D4 contradictions were marked on the side of the accused. Even though, the accused was given opportunity to adduce defence evidence after questioning him under Section 313(1)(b) of Cr.P.C, he did not opt to adduce any defence evidence.
7. The trial court analyzed the evidence in detail and relying on the evidence given by PW3, the pillion rider of the motorcycle, PW4 and PW5 independent witnesses, who spoke about the occurrence as well as negligence on the part of the accused, found that the accused is guilty for the offences punishable under Sections 337, 338, 304A of the IPC as well as under Section 3 read with 181 of the MV Act. Accordingly, the trial court convicted and sentenced the accused as under:
2025:KER:43803 Crl.A. No. 76 of 2012 5 "In the result, I sentenced the accused to undergo Rigorous Imprisonment for 3 (three) months and to pay a fine of Rs.500/-(Rupees Five hundred only) u/s. 337 IPC, Rigorous Imprisonment for 1 (one) year and to pay a fine of Rs 1,000/- (Rupees One thousand only) u/s.338 IPC and in default of payment of fine to undergo Rigorous Imprisonment for 1 (one) month each.
The accused is also sentenced to undergo Rigorous Imprisonment for 1½ (One and a half) years and to pay a fine of Rs. 10,000/- (Rupees Ten thousand only) u/s 304 A IPC and in default of payment of fine to undergo Rigorous Imprisonment for a further period of 3 (three) months.
He is also sentenced to undergo Rigorous Imprisonment for a period of three months u/s 3 r/w.181 of MV Act.
Sentences shall run concurrently.
Accused was in judicial custody for the period from 02-12-2005 to 08-12-2005 in this case and he is entitled to set off for the said period u/s.428 Cr.P.C.
Fine amount if realised Rs. 10,000/-
(Rupees Ten thousand) shall be given to the legal heirs of deceased and Rs. 1,500/- (Rupees 2025:KER:43803 Crl.A. No. 76 of 2012 6 One thousand five hundred only) shall be given to PW3 as compensation u/s. 357 Cr.P.C."
8. The learned counsel for the appellant/accused argued at length to convince this Court that, the trial court went wrong in finding that the accused was guilty for the offences alleged. According to the learned counsel for the appellant/accused, the trial court relied on the evidence of PWs 3 to 5, to find that the accused is guilty. It is pointed out by the learned counsel for the appellant/accused that the evidence of PW3, who was the pillion rider of the motorcycle, would suggest that the motorcycle involved in this case, driven by Jayakumar (deceased), was one entrusted to him for the purpose of repairing its mechanical defect and as deposed by PW3, the bike was ridden by the deceased at the time of accident, for the purpose of purchasing spare parts of the bike to cure its mechanical defects. It is pointed out by the learned counsel for the accused further that, PW14, the owner of the motorcycle, who was examined to prove the fact that the motorcycle was taken into custody by him, by executing Ext.P15 2025:KER:43803 Crl.A. No. 76 of 2012 7 Kaicheet, deposed during cross-examination that the motorcycle was entrusted at the workshop with complaint of break failure. According to the learned counsel for the accused, reading the evidence given by PW3 along with PW14, the same would suggest that the motorcycle involved in the accident was one ridden without break and thereby the accident occurred. This aspect was not considered by the trial court and therefore, the verdict of the trial court is erroneous. He also pointed out that, nobody near the place of occurrence either cited or examined as witnesses to prove the occurrence. He also submitted that, even though PWs 4 and 5 deposed in support of the prosecution case, nobody except PW3 stated about the rashness and negligence on the part of the accused in driving the KSRTC bus. Therefore, the verdict of the trial court is liable to be set aside.
9. Per contra, the learned Public Prosecutor would submit that, in this case, PW3, the injured witness/pillion rider of the motorcycle given evidence supporting the prosecution and the same is well corroborated by the 2025:KER:43803 Crl.A. No. 76 of 2012 8 evidence of PWs 4 and 5. Therefore, the trial court rightly entered into conviction and sentence and the same do not require any interference. It is pointed out by the learned Public Prosecutor further that, there was no mechanical defect to the motorcycle as per Ext.P16 Motor Vehicle Inspector Report marked and proved by the prosecution by examining its author, PW15, the Motor Vehicle Inspector.
10. Addressing the rival arguments, the questions arise for consideration are:
1. Whether the finding of the trial court that the accused committed the offence punishable under Section 337 of IPC is justifiable?
2. Whether the finding of the trial court that the accused committed the offence punishable under Section 338 of IPC is justifiable?
3. Whether the finding of the trial court that the accused committed the offence punishable under Section 304A of IPC is justifiable?
4. Whether the finding of the trial court that the accused committed the offence punishable under Section 3 read with 181 of 2025:KER:43803 Crl.A. No. 76 of 2012 9 the MV Act is justifiable?
5. Whether the verdict of the trial court would require interference?
6. Order to be passed?
11. Points Nos.1 to 4:- In this matter, the prosecution alleges commission of offences punishable under Sections 337, 338 and 304 of the IPC as well as under Section 3 read with 181 of the MV Act by the accused. Accordingly, the trial court framed charge for the said offences and recorded evidence. Finally, the trial court found that the accused did not commit the offence punishable under Section 304 of IPC. Instead, commission of the offences punishable under Section 337, 338 and 304A of IPC as well as under Section 3 read with 181 of the MV Act by the accused was found.
12. The ingredients to attract an offence under Section 304A of IPC are, causing the death of any person by doing any rash or negligent act not amounting to culpable homicide. The ingredients to attract an offence punishable under Section 337 of IPC are, causing hurt to any person by doing any act so rashly or negligently so as to endanger 2025:KER:43803 Crl.A. No. 76 of 2012 10 human life, or the personal safety of others. In the same fashion, causing grievous hurt would attract the offence under Section 338 of the IPC. So, rashness and negligence while doing an act are the ingredients, which would constitute the said offences.
13. Section 3 of the MV Act deals with necessity for driving licence, wherein it has been provided that, no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle other than a motor cab or motor cycle hired for his own use or rented under any scheme made under sub-section (2) of section 75, unless his driving licence specifically entitles him so to do.
14. In the instant case, the trial court mainly relied on the evidence of PWs 3, 4, 5 and 8 and Ext.P6 Postmortem Certificate supported by other evidence to find that the accused herein driven the KSRTC but in a rash and negligent manner, without a valid driving licence and dashed against the motorcycle involved in the accident, 2025:KER:43803 Crl.A. No. 76 of 2012 11 whereby the rider of the motorcycle was died and PW3 sustained hurt and grievous hurt. Tracing the evidence of PW3, he deposed that, he was aware about the occurrence on 02.12.2005 and he was the pillion rider of the motorcycle, at the time of occurrence. According to him, the KSRTC bus came from Vellayambalam to Palayam Road through Museum Road in over speed, dashed against the motorcycle, while they were entering into Museum Road from Palayam. PW3 deposed further that, while the motorcycle was crossing the road, the bus dashed against them and both of them fell down. PW3 sustained fracture on his right leg and he also lost the sight of his right eye. According to him, the over speed of the KSRTC bus driven by the accused caused the accident and driving vehicle in over speed at the place of occurrence would definitely cause accidents. He also deposed that, Jayakumar, the rider of the motorcycle died on the spot.
15. During cross-examination, PW3 deposed about the point argued by the learned counsel for the accused that the motorcycle was entrusted by its owner to 2025:KER:43803 Crl.A. No. 76 of 2012 12 Jayakumar at the workshop to cure its defect and the accident took place when he and Jayakumar were on the way to purchase spare parts to repair the motorcycle.
16. Similarly, during cross-examination, PW14 the owner of the motorcycle, who was examined to prove the release of the motorcycle on executing Ext.P15 Kaicheet, deposed that the motorcycle was entrusted to the deceased Jayakumar to repair its break failure. This is the point on which the learned counsel for the appellant/accused argued that the accident is the outcome of mechanical defect of the motorcycle.
17. In this context, the evidence of PW15 supported by Ext.P16 is crucial. On perusal of Ext.P16 Motor Vehicle Inspector Report of the motorcycle would show that, in column No.20, it was opined by PW15, the Motor Vehicle Inspector that "the accident occurred not due to the mechanical defect of the vehicle". During cross- examination of PW15, a question was asked as to whether there was break failure to the motorcycle before the accident, he answered that the break system was efficient 2025:KER:43803 Crl.A. No. 76 of 2012 13 even at the time of his examination. Thus, the available evidence of the expert, a very competent witness, would show that there was no mechanical defect to the motorcycle, particularly break failure. Therefore, ignoring this vital evidence, the evidence of PW3 and PW14 could not be appreciated to hold that there was break failure to the motorcycle or any other mechanical defect to the motorcycle, to hold the same as the cause of the occurrence. So, entrustment of the motorcycle at the workshop might be for other repairs.
18. Apart from the evidence of PW3, the prosecution examined PW4, who was working as a Third Grade Overseer in Irrigation Chief Engineer's Office, Museum and he deposed during his chief-examination that, he was aware about the occurrence on 02.12.2005 and the same was in between 01.00 p.m. and 01.30 p.m. He deposed that, two persons entered into Vellayambalam Road and the KSRTC bus came in over speed and hit on the right side of the motorcycle. Both riders of the motorcycle fell down and in consequence thereof both of them sustained injuries and 2025:KER:43803 Crl.A. No. 76 of 2012 14 the rider sustained head injury also. Thereafter, the rider was taken into hospital in a Police Jeep and later it was known that the rider died. During cross-examination of PW4, he reiterated that the bus came in over speed and the same is the reason for the accident. Even though, some portions of his statement were pointed out with a view to contradict him, his answer was that he did not remember. Ext.D3 is the contradiction marked when he denied the statement that he looked at the spot on hearing the sound of the vehicle.
19. PW5 examined in this case deposed that, he had witnessed the occurrence happened at about 01.30 pm on 02.12.2005, while he was coming through Nandavanam in an autorickshaw after purchasing articles. According to him, the KSRTC bus over took another bus and dashed against the motorcycle. He also pointed out the number of the bus as T.S.344. According to him, the rashness and negligence on the part of the driver of the bus caused the accident and he identified the accused as the driver, who drove the vehicle at the time of occurrence. In fact, his evidence 2025:KER:43803 Crl.A. No. 76 of 2012 15 regarding the occurrence as well as rashness and negligence on the part of the accused are the reasons for the accident, were not shaken during cross-examination.
20. It is true that during cross-examination of PW3, his evidence is that, the Police never questioned or recorded his statement at the time of occurrence. But, no attempt made by the Public Prosecutor to re-examine PW3 to clarify the same. In this connection, the learned Public Prosecutor would submit that, even though Section 161 (3) of Cr.P.C., provides that the Police Officer may reduce into writing any statement made to him in the course of an examination under this section and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records, the word used is 'may' and therefore, the recording of statement under Section 161 of Cr.P.C. is not mandatory.
21. On perusal of the Final Report, PW3 examined in this case was cited as the fourth witness to prove the occurrence and his statement was recorded by the Police. Therefore, the evidence given by PW3 that Police did not 2025:KER:43803 Crl.A. No. 76 of 2012 16 question him or record his statement is not true. Now, the question arises for consideration is, merely because PW3 stated that his statement was not recorded by the Police and the same was not clarified by the learned Public Prosecutor with reference to his statement already recorded, the evidence of PW3 is to be discarded? Since the evidence of PW3 injured witness, who was cited as the prime witness for the prosecution, regarding the occurrence attaches credibility merely for the said reason, his evidence in support of the prosecution could not be eschewed or effaced, particularly when his evidence is supported by the evidence of PW4 and PW5. Most importantly, even relying on the evidence of PW4 and PW5 and eschewing the evidence of PW3, the prosecution case is proved. Since PW2, a witness who was working in an office near the place of occurrence, was cited and examined by the prosecution, the contention raised by the learned counsel for the appellant/accused that no independent witness cited or examined by the prosecution, also could not yield.
22. It is pointed out by the learned counsel for the 2025:KER:43803 Crl.A. No. 76 of 2012 17 accused that, even though prosecution has a case that the accused did not possess a valid driving licence, as per Ext.P4 Report, the licence he had was produced before the Court, though not having validity on the date of occurrence, but the same was not tendered in evidence. According to the learned counsel for the accused, it is the duty of the prosecution to prove the case against the accused beyond reasonable doubt.
23. In this case, the prosecution case is that, the accused had no valid driving licence and as per Ext.P4, the driving licence he possessed was not renewed and the same was produced before the Court also. But, the same was not tendered in evidence.
24. In the instant case, the allegation of the prosecution that the accused had driven KSRTC bus bearing registration No.KL-15-3434 in a rash and negligent manner at 01.00 p.m. on 02.12.2005 and caused death of the rider of the motorcycle and hurt and grievous hurt to PW3, is proved by the evidence of PW5, after identifying the accused as the driver of the bus. His evidence is well 2025:KER:43803 Crl.A. No. 76 of 2012 18 supported by the evidence of PW4, an independent witness, who was working as a Third Grade Overseer in Irrigation Chief Engineer's Office, Museum, during the relevant time. That apart, PW3 the injured witness, also deposed regarding the occurrence in tune with the prosecution allegations. If so, the evidence relied on by the trial court to find commission of offences punishable under Sections 337, 338, 304A of IPC by the accused is perfectly justifiable. Therefore, the conviction imposed against the accused for the said offences does not require any interference.
25. Coming to the offence under Section 3 read with 181 of the MV Act, in the instant case, as pointed out by the learned counsel for the appellant/accused, this is not a case, where an outright absence of driving licence was alleged. The allegation is that, there was a valid driving licence for the KSRTC bus driver (the accused), but the same was not renewed. Thus, during the time of accident, the accused did not possess a valid driving licence. In such a case, the driving licence which was not valid referred in 2025:KER:43803 Crl.A. No. 76 of 2012 19 Ext.P4 should have been tendered in evidence to prove that the said licence was not renewed and valid. In the instant case, such an evidence is lacking. In such view of the matter, based on the available evidence, it could not be held that the accused had no valid driving licence at the time of accident and the same is not established by the prosecution with the aid of convincing evidence. In view of the matter, the conviction and sentence imposed against the accused for the offence punishable under Section 3 read with 181 of the MV Act is found to be unsustainable and the same is liable to be set aside, while confirming the conviction for the other offences.
26. Coming to the sentence imposed by the trial court for the offences punishable under Sections 337, 338, 304A of the IPC is concerned, adverting the request made by the learned counsel for the appellant/accused that the same may be reduced, since the accused has been suffering from various illness, I am inclined to modify the same.
27. Point Nos.5 and 6:- In the result, the appeal 2025:KER:43803 Crl.A. No. 76 of 2012 20 stands allowed in part. The conviction imposed by the trial court against the accused for the offences punishable under Sections 337, 338, 304A of the IPC is confirmed, while setting aside the conviction and sentence imposed against the accused, by finding him guilty for the offence punishable under Section 3 read with 181 of the MV Act. The sentence imposed against the accused for the offences punishable under Sections 337, 338, 304A of the IPC is modified as under:
i. The accused is sentenced to undergo rigorous Imprisonment for a period of six months and to pay a fine of Rs. 10,000/- (Rupees Ten thousand only) for the offence punishable under Section 304A IPC and in default of payment of fine to undergo Rigorous Imprisonment for a further period of one month.
ii. The accused is sentenced to undergo rigorous Imprisonment for a period of one month for the offence punishable under Section 337 IPC and shall undergo rigorous imprisonment for a period a two months for the offence punishable under Section 338 of IPC.
iii. The substantive sentence shall run 2025:KER:43803 Crl.A. No. 76 of 2012 21 concurrently and the default sentence shall run separately, after the substantive sentence.
iv. The period of detention undergone by the accused in this case will be set off against the substantive sentence of imprisonment.
Registry is directed to forward a copy of this judgment to the trial court for information and compliance, forthwith.
Sd/-
A. BADHARUDEEN SK JUDGE