Kerala High Court
Chandrasekharan vs State Of Kerala Represented By The on 26 July, 2012
Author: P.S.Gopinathan
Bench: P.S.Gopinathan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN
THURSDAY, THE 26TH DAY OF JULY 2012/4TH SRAVANA 1934
Crl.Rev.Pet.No. 431 of 2004 (D )
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CRL.A.NO.19/1998 of ADDITIONAL SESSIONS COURT (FAST TRACK-II), PALAKKAD
C.C.NO.662/1994 of JUDICIAL MAGISTRATE OF FIRST CLASS COURT, ALATHUR
REVISION PETITIONER(S)/APPELLANT/ACCUSED:
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CHANDRASEKHARAN
S/O. KESAVAN KURUPPU, PARUTHIPULLI, KOTTAYI
PALAKKAD DISTRICT.
BY ADVS.SRI.V.V.RAJA
SRI.M.T.SURESHKUMAR
SRI.S.VIJAYAKUMAR
RESPONDENT/RESPONDENT/COMPLAINANT:
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STATE OF KERALA REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY GOVERNMENT PLEADER SMT.LOWSY A
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
26-07-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
MJL
P.S.GOPINATHAN,J
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Crl.Rev.Pet. 431/2004
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Dated this the 26th day of July, 2012.
O R D E R
The revision petitioner was prosecuted by the Circle Inspector of Police, Alathur Police station, alleging offences under Sections 279, 338 and 304 A of Indian Penal Code (IPC) before the Judicial Magistrate of the First Class, Alathur in C.C. No.662/1994. The revision petitioner pleaded not guilty. Therefore, he was sent for trial. On the side of the prosecution, PWs 1 to 11 were examined and Exhibits P1 to P12 were marked. After closing the evidence for the prosecution, the appellant was questioned under Section 313 (1) (b) of the Code of Criminal Procedure. He took a defence of innocence. On appraisal of the evidence, the trial court arrived at a conclusion of guilty. Consequently, the appellant was convicted and sentenced to rigorous imprisonment for one year each under Sections 304 A and 338 IPC and rigorous imprisonment for three months under Section 279 IPC. Sentences were ordered to run concurrently. The driving licence of the appellant was suspended for a period of two years under Crl.Rev.Pet. 431/2004 2 Section 22 of the Motor Vehicles Act.
2. Assailing the above conviction and sentence, Criminal appeal No. 19/1998 was preferred before the Sessions Judge, Palakkad. The Additional Sessions Judge, to whom the the appeal was made over, by Judgment dated 19/1/2004 dismissed the appeal. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition is preferred.
3. The prosecution case is that at 7.45 A.M. on 16/07/1994, a lorry bearing registration No.TDB/8159 driven by the appellant from east to west along the National Highway hit against a car bearing registration No. KCF 6165 driven by PW2 in the opposite direction with a passenger by name Cheriyan and as a result of the accident PW2 and Cheriyan sustained severe injuries to which Cheriyan succumbed. According to the prosecution, the accident was because of the rash and negligent driving of the lorry by the revision petitioner.
4. Soon after the incident, locals gathered. PW1, one of the local person along with others who arrived there rushed PW2 and and Cheriyan to the Thaluk Head Quarters Hospital Alathur. Crl.Rev.Pet. 431/2004 3 Cheriyan was declared dead. PW2 was given first aid by PW7, then Civil Surgeon and referred to the Medical College Hospital, Thrissur. PW1, in return, rushed to Alathur Police Station and gave Exhibit P1 First Information Statement before PW11, the Circle Inspector of Police. He recorded Exhibit P1 and on the basis of Exhibit P1, a case as a Crime No. 239/94 was registered for offences under Sections 279 and 337 and 304 A IPC against the revision Petitioner for which Exhibit P1 (a) first information report was prepared. He took over the investigation, rushed to the spot of occurrence and prepared the scene mahazar, questioned the witnesses, recorded their statements, arrested the appellant and got the Post Mortem examination done on the body of Cheriyan. Both vehicles were got inspected by PW8, the Assistant Motor vehicle Inspector, seized the trip sheet of the car and GVR of the lorry. During the course of the investigation, he filed Exhibit P9 report to delet Section 337 IPC and add Section 338 IPC. After completing the investigation, PW11 submitted the charge sheet before the trial court alleging offences under Sections 279, 338 and 304 A IPC.
Crl.Rev.Pet. 431/2004 4
5. I have heard the Advocate Sri.M.T.Suresh Kumar, the learned counsel for the petitioner and Smt.Lowsy, the learned Government Pleader. Perused the judgment of the courts below as well as the relevant portions of the evidence on record.
6. The occurrence of the accident is not disputed. The only dispute that was raised before me is the identity of the revision petitioner and the negligence aspect. The occurrence of the accident was deposed by PWs 1 to 5. Exhibit P11 scene mahazar prepared by PW11 would give a brief description of the lie of both vehicles after the accident. Both vehicles were at the northern side of the National Highway at Erattakulam. As I mentioned earlier, the lorry was driven from east to west and the car was driven in the opposite direction. Exhibit P11 would show that the road at the spot of occurrence was having a width of seven meters. The place of occurrence was shown as 120 Cms towards south from the northern tar end . The front wheel of the lorry was 85cms towards south from the northern tar end. The back wheel was at a distance of 75cms towards south from northern tar end. It would show that the lorry was driven to the extreme right side of the road and hit against the car which was Crl.Rev.Pet. 431/2004 5 along the left side of the road. Had the lorry been driven along the left side of the road, that is along the southern side of the road, definitely the accident would not have occurred. The explanation given by the learned counsel for the petitioner is that on the southern side of the road there were big pot holes and therefore the lorry was driven to the right side of the road and that the accident occurred after the lorry covering the pot holes. I find no merit in the explanation given by the learned counsel for the revision petitioner. In the event, road was having pot holes and was not able to drive the lorry with load along the left side, the revision petitioner should have stopped the vehicle and waited for the vehicle from the opposite direction to pass over before driving to the right side of the road. Therefore what can he inferred from the spot of occurrence is that ignoring the traffic from the opposite direction, the lorry was driven along the wrong side that too along the busy National Highway and hit against the car which was driven through the left side. The scene mahazar coupled with Exhibits P6 and P7, the inspection reports of the car and lorry respectively would show that it was a heavy hit with a high velocity. Both vehicles had material damages. The revision Crl.Rev.Pet. 431/2004 6 petitioner would attribute negligence on the side of the PW2. According to PW2, he was driving through the extreme left side of the road and he was very cautious and at a controllable speed and that seeing the lorry coming from the opposite direction at high speed he stopped the vehicle and despite stopping of the car the lorry hit on the car. To a suggestion that car was driven at a high speed PW2 would depose that the deceased passenger was a retired District Judge and he would not allow him to drive the car at a high speed. The Evidence of PW2 on that aspects remains unimpeached. The appellant has no case when questioned under Section 313 Cr.P.C. that the car was driven at a rash or negligent speed and that the accident occurred because of the negligence of the driver of the car. Even if it is so, there is nothing to show that the revision petitioner applied brake or cared to keep his side. That omission itself speaks volumes about the negligence of the revision petitioner.
7. The evidence of PW8, the Assistant Motor vehicle Inspector, coupled with Exhibit P6 would show that the lorry had no mechanical defect. Therefore, mechanical defect cannot be attributed as the cause of the accident. In the above circumstance, Crl.Rev.Pet. 431/2004 7 having due regard to the evidence on record, I concur with the courts below and conclude that the evidence on record is sufficient enough to come to a conclusion about the rash and negligent driving of the lorry.
8. The fact that Cheriyan, who was the sole passenger in the car, died due to the injuries sustained is not disputed. All the witnesses are harmonious on that aspect. PW7, who conducted the Postmortem examination on the body of Cheriyan, would depose that Exhibit P3 is the Postmortem certificate and the cause of death was shock and haemorrhage due to head injuries and multiple fractures. The injuries are noted in Exhibit P3. Though injuries are noted in Exhibit P3, since it was not deposed by PW7, technically there is no evidence regarding injuries sustained to Cheriyan. But the fact remains that the cause of death deposed by PW7 remains unimpeached. Therefore, the courts below were justified in arriving at a conclusion that death of Cheriyan was due to injuries sustained in the accident.
9. PW2 would depose that he had sustained severe injuries. PW7 would depose that Exhibit P4 is the wound certificate issued by him and that PW2 had the following injuries. (1) Crl.Rev.Pet. 431/2004 8 Lacerated injury on the chin (2) multiple compound fracture at right forearm (3) fracture left knee joint (4) bleeding from nose (5) suspected fracture survical spines. The nature of injury mentioned above would show that the injuries sustained to PW2 are of grevious nature.The evidence of PW7 regarding the injuries is corroborated by Exhibit P4. There is no challenge against the injuries sustained to PW2. Therefore the courts below were also right in coming to a conclusion that PW2 had sustained grevious hurt.
10. The remaining question is that whether the revision petitioner was the driver of the lorry or not. PW2 would depose that the revision petitioner was the driver of the lorry. None of the other witnesses had deposed the identity of the revision petitioner. In Ext.P1, PW1 had stated that the accused was known as the driver of the lorry. Therefore, the case was registered against the revision petitioner. PW11 during the course of investigation arrested the revision petitioner and released on bail. His driving licence and Exhibit P10, the Goods Vehicle Record(GVR) were seized. Exhibit P10 (a) is the relevant page of the GVR. Though in Exhibit P10 (a) the registration number of the lorry and driving licence number of the Crl.Rev.Pet. 431/2004 9 revision petitioner is recorded, the name of the revision petitioner is not mentioned anywhere in the GVR. So the learned counsel for the revision petitioner would submit that Exhibit P10 (a) would not help the prosecution to establish the identity of the revision petitioner. On a critical scrutiny of the evidence of PW2 and PW11, I find that there is no suggestion to PW2 and PW11 that the revision petitioner was not the driver of the lorry at the time of accident. PW2 had not identified the driver of the lorry during the course of investigation. But in the absence of the challenge regarding the identity of the revision petitioner I find that such omission is not much material. It appears that PW11 rest content by noting that the driving licence No. noted in Ext.P10(a) is that of the revision petitioner. There is no suggestion to PW11 that he had either falsely implicated and arrested the revision petitioner as the accused or substituted the true person with the appellant due to any ulterior motive . The evidence of PW11 that he had arrested the revision petitioner was not challenged in cross examination. One of the argument that was advanced by the learned counsel for the revision petitioner is that in support of the evidence of PW2 identifying the revision petitioner as the driver of Crl.Rev.Pet. 431/2004 10 the lorry, PW2 would depose that soon before hitting and after the hit he had carefully looked at the driver of the lorry, but there is no such statement by PW2 during investigation. That omission is not much significant because he had admittedly stated to the investigating officer that the driver could be identified indicating that PW2 had noted the driver. Adding to that, to PW2 there is no suggestion that the appellant was not the driver. It is also crucial to note that when the revision petitioner was questioned under section 313 of the Code of Criminal Procedure also he had no case that he was not the driver of the lorry. Therefore, I fail to find that the courts below had anyway erred in arriving at a conclusion regarding the identity of the revision petitioner.
11. The learned counsel for the revision petitioner canvassed my attention to decisions of the Apex Court report in State of Haryana Vs.Sher Singh (AIR 2009 SC 823) and Braham Dass Vs. State of Himachal Pradesh (AIR 2009 SC 3181). In the Sher Singh's case, the accused was acquitted by the High Court. The Apex court confirmed the judgment of acquittal, on arriving at a conclusion that there is no specific material to show that the respondent was driving Crl.Rev.Pet. 431/2004 11 the vehicle at the time when the accident took place. None of the witnesses had mentioned the identity of the driver. In Braham Dass's case also, the witnesses had not identified the driver of the bus which met with the accident. The conductor of the bus was not examined. It is in the above circumstance, the Apex court concluded that the identity of the driver was not established. That is not the position in this case.
12. The learned counsel for the revision petitioner also argued that the prosecution failed to examine the owner of the lorry and that it is a material omission on the side of the prosecution and therefore, the revision petitioner is entitled to an order of acquittal. True that there is omission to examine the owner. But in the light of the fact that the identity of the revision petitioner was not disputed when PW2 was examined, there was no case for the revision petitioner to PW11 that he was falsely implicated and in the light of Ext.P10(a) such omission is not much material. Therefore, I find no reason to interfere with the conviction under challenge.
13. Regarding the sentence, having due regard to the nature of the accident, I find that the revision petitioner deserves no Crl.Rev.Pet. 431/2004 12 leniency. However, taking note that the Revision petitioner was 31 years old at the time of the accident and that the incident occurred 18 years back, I find that sentence of rigorous imprisonment for nine months and six months respectively for the offence under section 304 A and 338 IPC would meet the ends of justice. No separate sentence for the offence under section 279 IPC is warranted.
14. In the result, revision petition is allowed in part. While confirming the conviction, the sentence for offence under Section 304 A and 338 IPC are reduced to rigorous imprisonment for 9 months and 6 months respectively. The sentence shall run concurrently. Sentence for offence under section 279 IPC is vacated as no sentence for offence under Section 279 is warranted. The under trial imprisonment, if any, shall be set off. The revision petitioner is directed to surrender before the trial court which shall see the execution of sentence and report compliance.
P.S.GOPINATHAN JUDGE mjl