Kerala High Court
Ramesh vs State Of Kerala on 2 March, 2017
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
THURSDAY, THE 2ND DAY OF MARCH 2017/11TH PHALGUNA, 1938
Crl.Rev.Pet.No. 1953 of 2012 ()
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AGAINST THE JUDGMENT IN CRA 336/2010 of II ADDL. SESSIONS
COURT/SPECIAL JUDGE FOR NDPS ACT CASES, THODUPUZHA
AGAINST THE ORDER IN CC 753/2006 of J.M.F.C.,NEDUMKANDOM
REVISION PETITIONER/APPELLANT/ACCUSED:
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RAMESH, AGED 31 YEARS
S/O.RAJ, HOUSE NO.531, WARD NO.IX, UDUMBANCHOLA
PANCHAYATH, METTAYIL BHAGAM, PARATHODU VILLAGE, IDUKKI
DISTRICT.
BY ADVS.SRI.T.K.AJITH KUMAR
SRI.P.VINODKUMAR
SRI.K.S.ARUNDAS
RESPONDENTS/RESPONDENTS/COMPLAINANT:
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1. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN-682 031.
2. THE SUB INSPECTOR OF POLICE
NEDUMKANDOM, IDUKKI DISTRICT. PIN-685 553.
BY PUBLIC PROSECUTOR SMT.REKHA C. NAIR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 02-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
K.P.JYOTHINDRANATH, J.
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Crl.R.P.No.1953 OF 2012
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Dated this the 2nd day of March, 2017
ORDER
This is a revision petition filed by the accused in C.C.No.753/2006 on the files of the Judicial First Class Magistrate Court, Nedumkandom. The conviction is under Section 279, 337, 338, 304(A) of IPC and the revision petitioner was sentenced by the trial court. Aggrieved by the conviction and sentence, the revision petitioner preferred Crl.Appeal No.336/2010 before the II Additional Sessions Judge/Special Judge for NDPS Act Cases, Thodupuzha. The appellate court upheld the conviction and set aside the separate sentence passed under Section 279 of IPC. The sentence imposed by the trial court to undergo simple imprisonment for two years under Section 304 (A) of IPC was confirmed and limited the fine to Rs.5000/-. The sentence imposed by the trial court under Section 337, 338 and 304 A were confirmed i.e. the revision petitioner was sentenced to undergo simple imprisonment for three months under Crl.R.P.No.1953/2012 2 Section 337 of IPC and was sentenced to undergo simple imprisonment for one year under Section 338 of IPC.
2. When the revision petition came up for hearing, the learned counsel for the revision petitioner submitted before me that the prosecution case is that on 16.10.2006 at about 8.45 a.m. while the revision petitioner was allegedly driving the jeep bearing Reg.No.KL Z 3144 through on Kumily-Munnar road at Kalkoonthal kara, it met with an accident and in that accident a passenger namely Jayakodi sustained very fatal injuries and succumbed to it and thereby committed the above offence.
3. The prosecution altogether examined 17 witnesses and Exts.P1 to P10 were marked. MOs 1 to 3 were also marked. On the side of the defence, DW1 was examined and Ext.D1 was marked.
4. The main submission made before me is that the accident occurred in a hilly area. It is the submission made by the counsel that the road is comparatively a narrow road and at the place of incident, it can be seen that there is a slop i.e from north to south. The road is going downwards. It is also submitted that on the western side of the Crl.R.P.No.1953/2012 3 road, there is only a margin of about 160 cms. and thereafter there is a mud wall wherein a rock is also seen bulging towards the road. At that spot, the accident occurred. It is further submitted that from the F.I. Statement itself, it can be seen that the right back wheel of the jeep was loosened and as such the accident occurred i.e. immediately after the accident, F.I.Statement was given wherein the cause of the accident is shown as loosening of the wheel. Even though that aspect was therein, on the basis of the F.I.Statement, a F.I.R. is registered by the Police as Ext.P1(a) wherein the offences alleged are under Sections 279, 337 and 338 of IPC as well as an offene under Section 192 of the Motor Vehicles Act.
5. It is the submission that the question is whether there is rashness and negligence which resulted in the accident. As per the judgment itself, it can be seen that the witnesses not actually supported the prosecution. It is also submitted that the identity of accused/driver is also not proved by the prosecution. Surely, the counsel not disputed the death occurred as well as the fact that the deceased was not in the vehicle. Thus, the sum and substance of the Crl.R.P.No.1953/2012 4 arguments advanced before me is that firstly the identity of the accused is not proved. Secondly, the rashness and negligence of the revision petitioner is also not proved. The learned counsel also pointed out that DW1 is examined to buttress the contention that identity is not proved i.e. revision petitioner was not at the place of incident at the time of accident i.e. he was in the estate.
6. The learned Public Prosecutor submitted before me that here is a case where the vehicle capsized by hitting on a rock. If the vehicle was driven carefully no vehicle will capsize or hit against the wall on the side of the road. It is also the submission that it is a fit case where the maxim res ipsa loquitor will apply. The burden is heavy on the petitioner to show that under what circumstances the accident occurred. It is also the submission made by the learned Public Prosecutor that here is a case where there were about 10 passengers. There are about 9 injured witnesses as well as there is a driver. Then there will be atleast ten persons travelling in that jeep. That itself will show that it was overloaded. When an overloaded vehicle met with an accident, the burden of the driver/accused will be Crl.R.P.No.1953/2012 5 on a higher level.
7. After hearing the learned counsel, I have perused the documents and evidence in this case. As per Ext.P7, the scene mahazar, it can be seen that the lie of the road at the place of incident is north south. The road is having a width of 6.85 metres and on the western side of the road, there is a road margin of 1.60 metres and on the eastern road margin, there is a width of 3 metres. It is also evident from the scene mahazar that the road is on a slop and it can be further seen that there is a vision of about 50 metres towards north and 100 metres towards south. It can be also seen that from about 20 metres southwards there is a bend towards east and similarly after about 40 metres on the north, there is a bend towards west. In this case, F.I. Statement was given by an injured witness who was examined as PW1. As per the F.I. Statement, he stated that while he was travelling on the back of the jeep i.e. on the step area, the vehicle met with an accident. His first version is as follows :
"5x?_U{Ua M^7fJJ_OgM^Z <`Mm gy^A_fa
'?DaUVJaU D_GO_W '?_:na gy^A_fa U\DaUVgJAm
Crl.R.P.No.1953/2012 6
Ny_Oa5Oa" <`M_fa I_XM^7" U\DaUVfJ ?OV *x_gM^Ua5Oa"
<`M_\aI^O_xaK .H_OmAa" Nxa dXq` fD^]_\^{_5ZAa"
Ix_AaIxa5Oa" f:Oqa."
8. He also deposed that "<`Mm 3?_:n_xaKDm gNGO_W M^7Ja D^NX_AaK x^<_fa N5X xgNVm &O_xaKa.exgNV_Ha"
Ix_AaIx_ ( &VaIdD_O_W :_5_rO_\aIm."
9. He also stated in the F.I. Statement that the vehicle was on over speed. When he was examined before the court he marked the F.I.Statement as Ext.P1 and also deposed that while he was travelling in a jeep and when it reached at Karadivalavu, the wheel was loosened and the jeep hit against the rock. He further deposed that he was not aware who drove the vehicle. He further deposed before the court during cross examination that "U`W *x_gM^O_ H_OdLC" U_Gm I^yO_W '?_Aa5O^O_xaKa."
10. PW2 deposed before the court that she sustained injuries in the accident and she is not aware how the accident occurred. She further deposed on a question that the accident occurred due to the negligence of the accused. During cross examination it was brought Crl.R.P.No.1953/2012 7 out as a contradiction to the effect that "& auto UxaKDa5Im Remesh jeep roadefa '?DaUVgJAm fUG_:na" which is marked as Ext.D1.
11. PW3 also is an injured witness and she also deposed that the jeep hit against a rock and she sustained injuries. She is seen declared as hostile. PW4 is another injured witness and she deposed that she is not aware as to what was the reason for the accident and then added that "hdAUyaf? 5a]M" f5^I^Cm %I5?" )I^ODm".
12. PW5 deposed that accused was driving the vehicle and the accident occurred due to the fault of the accused ( xgNV_fa 5a]M" f5^I^Cm %I5?" )I^ODm) . PW6 also is an injured witness and the said witness identified the accused as the driver. He deposed that as the vehicle was driven with speed, the accident occurred. PW7 is also an injured witness who also deposed that the accused was driving the vehicle. PW8 also deposed that the accused was driving the vehicle and the accident was due to overspeed. PW9 declared hostile. PW10 is the Doctor who conducted the postmortem Crl.R.P.No.1953/2012 8 of Jayakodi and he marked the postmortem certificate as Ext.P2. This witness deposed that the death was due to head injury sustained. PW11 marked the wound certificate of the injured as Ext.P3 series. PW12 is the Sub Inspector who conducted the partial investigation in this case. PW13 is the Police Officer who was in the G.D charge during the relevant period and who recorded the statement and marked the FIR as Ext.P1(a). PW14 is the Police Officer who conducted the partial investigation. PW15 is the motor vehicle inspector who inspected the vehicle bearing Reg.No.KL Z 3144 and deposed before the Court that no mechanical defect noted and the brake system found efficient and marked the certificate as Ext.P10. He deposed before the court that he conducted the inspection of the jeep. He denied the suggestion that Ext.P10 was given as per the direction of the investigating officer. PW16 is also an injured witness who identified the accused. PW17 is the mother of the deceased Jayakodi.
13. In this case, even though the learned counsel vehemently argued regarding the identity aspect of the petitioner, it can be seen Crl.R.P.No.1953/2012 9 that the injured witnesses identified the accused from the court. More over, in the earliest point of time itself in Ext.P1, the name of the accused is seen written. In such circumstances, the evidence regarding identity need not be doubted.
14. The next point to be considered is whether the courts below committed any illegality or perversity in appreciating the evidence regarding negligence aspect. Many of the witnesses gave evidence to the effect that vehicle was driving with speed. Surely, driving a vehicle with high speed alone cannot be equated with negligence. Negligence should be proved positively. But at same time, in this case, the place of accident as evident from Ext.P7 has to be considered. There is evidence to the effect that there is a slop and further there is evidence to the effect that it is a narrow road. Munnar
-Kumali road is the place of accident. It can be further seen that even though Ext.D1 is brought out, while accused was questioned under Section 313 of Cr.P.C., accused got no case that he just swerved the vehicle to the left to avoid a major accident and in that process accident occurred. This aspect attains important especially when, as Crl.R.P.No.1953/2012 10 per the evidence of DW1, he was not at the place at the time of accident. By appreciating the evidence of eye witness and injured witnesses, I have already came to a conclusion that he was the person who was driving the vehicle. Then the burden to explain how the accident occurred is heavily upon him especially when the maxim res ipsa loquitur is applicable in a case like this. Thus, there is no illegality or perversity committed by the trial court as well as the appellate court in respect of appreciating the evidence. Then the only question is in respect of the sentence to be imposed by this court under Section 304 (A) of IPC. The maximum sentence that can be imposed for the said offence is two years. In this case, the trial court imposed a sentence of two years. It cannot be said that this is a case where the maximum sentence has to be imposed.
15. Thus, considering the totality of the case and the place of accident and the width of the road on the left side and also considering the fact that the back wheel of the vehicle was loosened, I feel that imprisonment for four months under Section 304 (A) of IPC will be sufficient to meet the ends of justice. The revision Crl.R.P.No.1953/2012 11 petitioner is also sentenced to undergo simple imprisonment for three months under Section 338 of IPC. The revision petitioner is also sentenced to pay a fine of Rs.1,000/- under Section 337 of IPC with default imprisonment for 15 days. The sentence will run concurrently.
With the above modification in the sentence, the criminal revision petition is disposed of.
K.P.JYOTHINDRANATH JUDGE sv.