Kerala High Court
Shyjan vs State Of Kerala on 22 July, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
TUESDAY, THE 4TH DAY OF OCTOBER 2016/12TH ASWINA, 1938
CRL.REV.PET.NO. 3220 OF 2004 (B)
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AGAINST THE JUDGMENT IN CRA NO.338/2003 OF II ADDITIONAL SESSIONS
JUDGE (ADHOC), FAST TRACK NO.1, THRISSUR DATED 22.07.2004
AGAINST THE JUDGMENT IN CC NO.1106/1999 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT, CHALAKUDY DATED 30.04.2003
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REVISION PETITIONER(S)/APPELLANT/ACCUSED:
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SHYJAN, S/O.JOSE,
PADAYATTIL HOUSE,
ANGAMALY VILLAGE, DESOM.
BY ADVS.SRI.DENY JOSEPH
SRI.S.KRISHNAKUMAR
RESPONDENT(S)/RESPONDENT/COMPLAINANT:
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STATE OF KERALA,
REPRESENTED BY THE SUB INSPECTOR OF POLICE,
CHALAKUDY, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.C.N. PRABHAKARAN
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 04-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
NS
P.D. RAJAN, J.
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Crl. Rev.Pet. No.3220 of 2004
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Dated this the 4th day of October, 2016
O R D E R
This revision petition is preferred by the accused against the judgment in Criminal Appeal No.338 of 2003 of the 3rd Additional Sessions Judge, (Adhoc), Fast Track-I, Thrissur. He was charge sheeted in C.C. No.1106 of 1999 by the Judicial First Class Magistrate, Chalakkudy for the offences under Secs.279 and 304(A) of the Indian Penal Code ('IPC' for short). The learned Magistrate convicted the accused and sentenced to undergo simple imprisonment for three months under Sec.279 IPC and simple imprisonment for one year and fine of Rs.5,000/- in default, simple imprisonment for three months under Sec.304(A) IPC. Against that, the accused preferred the above criminal appeal before the Sessions Court, where the learned 3rd Additional Sessions Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision petition.
2. The charge against the accused is that on Crl. Rev.Pet. No.3220 of 2004 2 12.09.1999 at 06.00 a.m., the accused had driven KL-7/S-1986 motorbike in a rash and negligent manner endangering human life along the NH road and when it reached at Potta it hit against one Eliya who was walking on the side of the road. As a result, she sustained serious injuries, while undergoing treatment she succumbed to the injuries. Chalakkudy Police registered a crime and after completing investigation, laid charge in the trial court. To prove the offence, prosecution examined PW1 to PW6 and marked Exts.P1 to P6 as documentary evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence.
3. Learned counsel appearing for the revision petitioner contended that the accident was due to the negligence of the deceased herself. At the place of occurrence she crossed the road without noticing the traffic on the road and the motorbike hit her. Therefore, the accused is entitled to get the benefit of doubt. Learned Public Prosecutor, in reply, contended that the Crl. Rev.Pet. No.3220 of 2004 3 incident was due to the negligent act of the revision petitioner which was deposed by PW1, the son of the deceased. PW2 identified the revision petitioner immediately after the incident. The incident was occurred on the western side of the road.
4. The principle of rashness or negligence have been discussed by the apex court in Balachandra Waman Pathe v. State of Maharashtra [1968 ACJ 38] which reads as follows:
"There is a distinction between a rash act and a negligent act. In the case of a rash act the criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequence. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. Negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man Crl. Rev.Pet. No.3220 of 2004 4 would not do. A culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The immutability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and if he had he would have had the consciousness. The immutability arises from the neglect of the civic duty of circumspection. In the instance case the appellant was driving his car at a speed of 35 miles an hour, the speed permissible under the rules. No other circumstance was pointed out to show that he was driving in a reckless manner. Therefore, he cannot be said to have been running the risk of doing an act with recklessness or indifference as to the consequences. But he was undoubtedly guilty of negligence. He h ad a duty to look ahead and see whether there was any pedestrian in the pedestrian crossing. It is likely that while driving the car he was engrossed in talking with the person who was sitting by his side. By doing so, he failed to exercise the caution incumbent upon him. His culpable negligence and failure to exercise that reasonable and proper care and caution required of him resulted in the occurrence. He was therefore guilty of offence under S.304A." Crl. Rev.Pet. No.3220 of 2004 5
5. In the above decision, apex court held that culpable negligence is acting without consciousness and that illegal and mischievous effect will follow such rash act. Now, I considered whether the revision petitioner controlled his act or he was cautious at the place of occurrence to avoid any accident. The oral evidence of PW1 shows that the incident happened at 12.09.1999 at 6.00 am while he was going to church with his mother, who was walking through the western side of the road and the motorcycle came from the opposite direction and knocked down his mother. Immediately she was removed to hospital where he gave Ext.P1 statement to the Police. The accident was due to the high speed of the motorbike by the accused. He contended that the accident occurred on the mud road on the side of National Highway. There were two passengers on the motorbike.
6. While adverting to the above argument, I have examined the evidence of the witnesses for identifying whether the revision petitioner was rash and negligent at the place of occurrence. The identity of the Crl. Rev.Pet. No.3220 of 2004 6 revision petitioner was deposed by PW2. His evidence shows that on hearing the sound, he reached at the place of occurrence and saw the deceased lying on the road. Revision petitioner was driving the motorbike at the place of occurrence. While cross examination of PW1 and PW2 by the defence counsel, he suggested that the accident occurred due to the crossing of the road by the deceased at the place of occurrence which was negatived by these witnesses. In a criminal case, when the accused raised presumption of innocence the court is bound to look into that aspect. In such cases also the burden of proving the negligence beyond reasonable doubt is upon the prosecution. The onus of proving the ingredients of the offence at any stage does not shift to the accused. When the prosecution discharges its initial burden and shift the onus to the accused, he is bound to explain the defence put forward by him.
7. Apex court in Syed Akbar v. State of Karnataka [AIR 1979 SC 1848] explained the principle of maxim res ipsa loquitor and held that the maxim does Crl. Rev.Pet. No.3220 of 2004 7 not raise any presumption of law. Therefore, the maxim estimate the logical probability from the circumstances of the accident. Here, the evidence of PW1 and PW2 alone was considered by the trial court and the learned counsel appearing for the revision petitioner submitted that it is only an interested testimony. The trial court had given greatest care in analyzing the evidence and drawing presumption with regard to the innocence of the accused. Prima facie facts established in this case show that no circumstances are brought out in evidence to discard the oral testimony of PW1 and PW2, the occurrence witnesses. Analyzing the evidence with due care and caution and considering the arguments, no circumstances are brought before me to discard the finding with regard to the rash and negligent driving of the revision petitioner. Therefore, the evidence of PW1 is sufficient to prove the rash and negligent driving.
8. Learned counsel appearing for the revision petitioner submitted that the incident was occurred in the year 1999, 17 years back and he prays some leniency in Crl. Rev.Pet. No.3220 of 2004 8 the sentence. The apex court in Chandramohan Nair v. State of Kerala [1994 SCC Cri.1750 ] took the view that three months rigorous imprisonment is sufficient to meet the ends of justice which reads as follows:
"There is no dispute that the accused was driving the car, but according to the learned counsel, the car was proceeding on a public road and the deceased crossed suddenly and the same resulted in an accident which cannot be said that the appellant was driving the car rashly and negligently. This is a question which depends upon the merit in each case. The evidence on record i.e., of PW1 shows that the deceased was crossing the road at a distance of 50 feet away from the running car. In such a situation it would not have been impossible for the accused to apply brakes. That apart, the number of injuries would show that the impact must have been very severe. The appellant without stopping the car sped away. This circumstance would go to show that he acted rashly and negligently. There is no merit in this appeal and the same is dismissed accordingly. But having regard to the fact that the incident took place in the year 1981, the sentence is reduced to 3 months RI. The payment of fine with default clause, if any, is confirmed. The Crl. Rev.Pet. No.3220 of 2004 9 appellant shall surrender and serve out the remaining portion of sentence, if any. "
Accepting the parameters laid down by the apex court, the revision petitioner is entitled to get leniency in the sentence. Considering the facts and circumstances of the case, the sentence imposed by the trial court is modified as follows:
The revision petitioner is sentenced to rigorous imprisonment for three months and fine of Rs.15,000/- (Rupees fifteen thousand only) under Sec.304A IPC. No separate sentence is awarded under Sec.279 IPC. Revision petitioner is directed to surrender in the trial court to undergo the modified sentence forthwith. This revision petition is disposed of accordingly.
Sd/-
P.D. RAJAN,
JUDGE
/ True Copy /
05/10/2016 P.A. To Judge