Kerala High Court
C.H.Kesava vs State Of Kerala on 3 July, 2020
Equivalent citations: AIRONLINE 2020 KER 351
Author: M.R.Anitha
Bench: M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
FRIDAY, THE 03RD DAY OF JULY 2020 / 12TH ASHADHA, 1942
Crl.Rev.Pet.No.219 OF 2012
AGAINST THE ORDER/JUDGMENT IN CRA 205/2010 DATED 22-11-2011 OF
SESSIONS COURT,KASARAGOD
AGAINST THE ORDER/JUDGMENT IN CC 694/2008 DATED 02-06-2010 OF
CHIEF JUDICIAL MAGISTRATE ,KASARAGOD
REVISION PETITIONER/APPELLANT/ACCUSED:
C.H.KESAVA
AGED 28 YEARS
S/O. KORAGAPPA, MITHADUKKA HOUSE, CHEVAR, KAYYAR
VILLAGE, PAIVALIGEA PANCHAYATH, KASARAGOD TALUK AND
DISTRICT.
BY ADV. SRI.I.V.PRAMOD
RESPONDENT/RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
R1 BY PUBLIC PROSECUTOR
OTHER PRESENT:
SR.PP - SRI. M.S.BREEZ
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 26-06-2020, THE COURT ON 03-07-2020 PASSED THE FOLLOWING:
Crl.R.P.No.219 of 2012 2
M.R.ANITHA, J.
---------------------------------
Crl.R.P.No.219 of 2012
---------------------------------
Dated this the 3rd day of July, 2020
ORDER
This Criminal Revision Petition has been filed against the concurrent finding of guilt, conviction and sentence passed against the revision petitioner.
2. Prosecution case is that on 09.03.2008 at about 03.00 a.m at Puthige near a culvert at Muggu road accused drove KL-14-G-2076 motorcycle in a rash and negligent manner so as to endanger human life from Seethamgoli to Parale and hit at PW1 and his wife, the deceased from the back while they were returning after seeing the Mogera Thenolsavam, resulting in the death of wife of PW1 and sustaining grievous injuries to PW1.
3. After the incident, PW2-a neighbour gave Ext.P1-F.I.S and on the basis of the same, PW12 registered the crime and conducted the inquest on the body of the deceased and conducted the investigation. Thereafter, PW14 who was the Circle Inspector, Kumbala verified the investigation conducted Crl.R.P.No.219 of 2012 3 by PW12 and filed the charge sheet against the accused. On the side of the prosecution, PW1 to PW14 were examined and Exts.P1 to P9 were marked. PW1 to PW3 were examined to prove the occurrence. PW4 and PW5 are the witnesses in Ext.P2 scene mahazar. PW6 and PW7 are the witnesses in Ext.P3 inquest of the deceased. PW8 is a witness who has given statement at the time of inquest and is a relative of the deceased. PW9 was also present at the time of inquest. PW10 is the doctor who conducted the autopsy on the body of the deceased and Ext.P4 is the post-mortem certificate. According to him, death of the deceased was due to thoraco abdominal injuries as a result of blunt force on trunk. PW11 is the Motor Vehicle Inspector, Kasaragod, who issued M.V.I. Report, Ext.P5. PW13 is the doctor who examined PW1 and noted big abrasions over both knee joints, multiple abrasion over both elbow, and loss of two incisor teeth (canine and premolar teeth), laceration of lower jaw and linear tear measuring 3x2 c.m size and multiple abrasion below lower lip and he opined that wound No.3 and 4 are grievous and other injuries are simple and the wound certificate is marked as Ext.P9.
4. After the closure of the prosecution evidence, accused was questioned under Section 313 Cr.P.C. He denied all the Crl.R.P.No.219 of 2012 4 incriminating facts and circumstances put to him. Thereafter on hearing both sides the trial court found the accused guilty under Sections 279, 338, 304(A) IPC and sentenced him to undergo rigorous imprisonment for six months under Section 279 IPC, rigorous imprisonment for six months under Section 338 IPC and rigorous imprisonment for one year under Section 304(A) IPC. Driving licence was suspended for one year. The sentences were directed to run concurrently. Against which, Crl.A. No. 205/2010 was filed before the Court of Sessions, Kasargode and by the impugned judgment the learned Sessions Judge dismissed the appeal confirming the conviction and sentence passed against the revision petitioner/accused.
5. Aggrieved by the same, this criminal revision petition has been filed for the various grounds stated in the memorandum of revision.
6. Notice was issued to the respondent and the respondent appeared through Public Prosecutor Sri. M.S. Breeze. Lower court records were called for and both sides were heard.
7. According to the learned counsel for the revision petitioner, the identification of accused is not proved and Crl.R.P.No.219 of 2012 5 prosecution failed to establish the presence of light at the place of occurrence and only PW2 the sole eyewitness who supported the prosecution case in toto and his evidence is full of material contradictions and omissions and hence both the courts below went wrong on relying the sole testimony of PW2 to find the accused guilty.
8. To ascertain the contentions put forwarded by the learned counsel, it would be necessary to appreciate the evidence adduced from the side of the prosecution. To prove the occurrence, PW1 to PW3 were examined. PW3, who is an eyewitness, turned hostile and cross examined by the learned Deputy Director of Prosecution. So, his evidence is of no use to the prosecution to prove the occurrence.
9. PW1, the husband of the deceased, states that himself, deceased and others went for festival on 08.03.2008 at Mukharikkandam during night. While himself, his wife and the children in the neighbouring houses were returning after seeing the temple festival at about 03.00 a.m., the incident occurred. He would depose that, near the culvert at Muggu road, while they were coming from Seethamgoli to their house, a motorcycle came from behind and hit against him and his wife and they Crl.R.P.No.219 of 2012 6 were thrown to the road and initially they were taken to Kumbala hospital and from there they were taken to Mangalapuram Wenlock Hospital and the wife died at Mangalapuram Hospital and he had been admitted there and undergone treatment. Further he deposed that his four teeth in the upper row and one tooth in the lower row were lost and also sustained injuries to the elbow and also on the knees. But he could not state the number of the motorcycle nor could identify the person who was riding the motorcycle though he stated that the reason behind the incident is negligence and over speed of the rider of the motorcycle.
10. PW2 is the sole eyewitness who supported the prosecution case in toto and identified the accused also before the court. His evidence is that on 01.03.2008 at about 3.00 a.m while he was walking through Muggu road from south to north, a motorbike came from their behind through the side and dashed against the deceased and PW1. Both of them were thrown away and the person who rode the motorcycle and the pillion rider also were thrown away and the deceased and PW1 were taken to Kumbala Co-operative Hospital and thereafter they were taken to Wenlock hospital, Managalapuram and at that hospital Kumari,the wife of PW1 died. He stated the number Crl.R.P.No.219 of 2012 7 of the motorcycle as KL-14-G-2076 and identified the accused as the person who had ridden the bike and further stated that he identified him in the street light. He also stated that the reason behind the incident is the negligence of the accused and further stated that accused suddenly turned back and due to over speed lost control and dashed against the deceased and her husband. The F.I.S. given by him is marked as Ext.P1 through him.
11. The leaned counsel for the revision petitioner would vehemently contend that PW2 is an interested witness and is a neighbour of PW1-the injured and the deceased and his evidence that he had seen the accused in the street light and further that the accident occurred since the accused turned back which resulted in loss of control due to the speed etc. are embellished version and he has not given any such statement to the investigating officer. Hence it is highly unsafe to depend on his sole testimony as proof of identity of the accused.
12. On going through the cross examination of PW2 it could be seen that he admitted during cross examination that PW1 and his wife were walking through left side of the road towards north and he was walking about 50 mtrs. behind them. Further he deposed that the incident occurred 50 mtrs. towards Crl.R.P.No.219 of 2012 8 the south from the culvert. He also would state that so many people were walking through the road and the incident occurred on the road and he had taken them to hospital and there was blood on his dress and further he deposed that the place of occurrence is a straight road.
13. On further cross examination he would admit that he has nothing to say if it is not seen stated in his statement to the police that the incident was seen in the street light. He also would state that the speed of the motorcycle was not noted by him. He would further admit that it has not been stated to the police that since the rider of the motorcycle turned back, the motorcycle dashed against the deceased and her husband and it is being stated for the first time before the court.
14. On perusing Ext.P1-F.I.S., it is seen that he has stated that he can identify the accused on sight. But there is no mention about the presence of light in Ext.P1-F.I.S.
15. PW12-the investigating officer would admit that PW2 has not stated to him that he had seen the incident in the street light. He would also admit that PW2 has not stated to him that when the rider of the motorcycle turned back, it dashed against the deceased and her husband. So the evidence of PW2 that he Crl.R.P.No.219 of 2012 9 had seen the accused in the street light is a material omission. His statement before the court that the motorcycle dashed against the deceased and PW1 when the rider turned back is also not stated by him to the police and that also amounts to a material omission.
16. It is also to be noted that, admittedly by him, he was walking about 50 mtrs behind PW1 and his wife. So, naturally, the accident might have occurred when the motorcycle passed him and gone forward. So the possibility of himself seeing the rider at that time is very remote and that is the reason why he has developed a case that the accident occurred when the rider of the motorcycle turned back.
17. Learned counsel for the revision petitioner/accused also would contend that as per the scene mahazar there is no mention about the presence of light at the place of occurrence. On perusing the scene mahazar, which is marked as Ext.P2, it is seen that there is reference with regard to two electric posts in the scene mahazar, but there is no mention about any bulb on the electric post. So the omission on the part of PW2-the sole eyewitness who identified the accused to state about the presence of street light in the F.I.S and the evidence of PW12- Crl.R.P.No.219 of 2012 10 the investigating officer that PW2 has not stated to him that he had witnessed the incident in the street light would make it highly unsafe to rely upon the evidence of PW2 before the court that he had witnessed the incident in the street light. Moreover, as I stated earlier, admittedly by him, he was walking about 50 mtrs. behind PW1 and the deceased. So, the possibility of himself seeing the accused as the rider of the motorcycle when the incident occurred about 50 mtrs. towards north of the place where he was standing is also highly improbable. It is also to be noted that PW2 has no case that after the incident when he reached there, the accused was there or the prosecution also has no case that the accused was subsequently shown to PW2 and got identified. So the identification of the accused by PW2 before the court alone can not be based upon to prove the identity of the accused as the person who rode the motorcycle at the time of accident. That is more so because the presence of any street light is also not revealed from the scene mahazar. So also there are material omission in the evidence of PW2 with regard to the identification of accused which amounts to contradiction. So also the date of incident has been stated as 01.03.2008 by him. So the sole testimony of PW2 will not prove the identity of the accused beyond any reasonable doubt. Crl.R.P.No.219 of 2012 11
18. The learned counsel also would contend that, according to PW2, the place of occurrence is a straight road but whereas PW12- the investigating officer would state that the place of occurrence is a steep road and there is a small curve in that place. So the evidence of PW2 is in contradiction with that of PW12-the investigating officer with regard to the place of occurrence. Admittedly by PW2, he was walking 50 mtrs distance behind the PW1 and the deceased. According to PW12 the place of occurrence is a steep area and there is a slight curve also. So if PW2 was coming 50 mtrs behind PW1 and the deceased, the possibility of PW2 witnessing the incident is also very remote. Probably, he might have reached there after the incident. Prosecution has no case that at that time he saw the accused as the rider of the motorcycle. Accused was also not shown subsequently and got identified. So identification of accused by him before the court is not free from doubt. Hence, as rightly contended by the learned counsel for the revision petitioner, prosecution could not prove the identity of the accused as the rider of the motorcycle at the time of accident beyond any reasonable doubt. So the accused is entitled for benefit of doubt on that count.
19. It is also to be noted that PW2 during cross Crl.R.P.No.219 of 2012 12 examination categorically admitted that deceased and PW1 were walking through the left side of the road towards north. He also admitted that the incident occurred on the tar road. So that will go to show that accused was coming from south to north keeping the left side of the road. But PW1 and deceased had been walking through the left side of the tar road and it is at that time the motorcycle hit from back. The prosecution also could not establish any presence of light in the area and all those factors might have resulted in hitting from the back of the deceased and PW1 by the rider of the motor cycle.
20. In this context, it is relevant to quote a decision of this Court in Thomas M.R. v. State of Kerala [2015 KHC 889] wherein while dealing with Sections 279 and 304A IPC it has been held that in a case of rash and negligent driving, the duty of the prosecution does not end by alleging the rashness or negligence on the part of the driver. It must also be proved that the rashness and negligence was responsible for the accident and the consequent injury or death. It is also held that there is no presumption of negligence under Section 304A IPC from the mere fact that a man is knocked down and killed by a motorist. It is further held that the presumption of law is that a person is innocent unless and until his guilt is proved and simply because Crl.R.P.No.219 of 2012 13 an accident occurred which resulted in injury or death to a pedestrian or cycle rider, it cannot be taken for granted that the driver of the vehicle involved in the incident is guilty of the crime. So the principles laid down in the above decision is squarely applicable to the case in hand. Both the courts below by improper appreciation of facts and circumstances and evidence adduced, found the accused guilty and that has caused miscarriage of justice and hence it is liable to be interfered with.
In the result, the criminal revision petition allowed setting aside the concurrent finding of guilt, conviction and sentence passed against the revision petitioner/accused. The bail bond executed by him stands cancelled and he is set at liberty.
Sd/-
M.R.ANITHA
Shg JUDGE