Kerala High Court
Suresh vs State Of Kerala on 21 January, 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
TUESDAY, THE 21ST DAY OF JANUARY 2020 / 1ST MAGHA, 1941
Crl.Rev.Pet.No.3110 OF 2006
AGAINST THE JUDGMENT IN CRA 308/2003 DATED 24-06-2006 OF
ADDITIONAL SESSIONS COURT (ADHOC) III, PALAKKAD
AGAINST THE JUDGMENT IN SC 92/1999 OF ASSISTANT SESSIONS COURT,
OTTAPPALAM
REVISION PETITIONER/APPELLANT/ACCUSED:
SURESH, AGED 42 YEARS, S/O.KUTTAN,
KIZHAKKEVALAPPIL, KOLALMBU DESOM,, EDAPPAL AMSOM.
BY ADV. SRI.C.P.UDAYABHANU
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE C.I. OF POLICE, PATTAMBI,
REPRESENTED BY THE, PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,, ERNAKULAM.
R1 BY PUBLIC PROSECUTOR
PUBLIC PROSECUTOR - MS.M N MAYA
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
21.01.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.Rev.Pet.No.3110 OF 2006 2
ORDER
Revision petitioner is the accused in S.C.No.92/1999 on the file of the Assistant Sessions Court, Ottappalam for the offences punishable under Sections 279 and 304 Part- II of the Indian Penal Code (hereinafter referred to as 'the IPC'). By judgment dated 05.07.2003, the learned Assistant Sessions Judge, Ottappalam, convicted and sentenced the accused to undergo simple imprisonment for six months under section 279 IPC and further sentenced to undergo simple imprisonment for two years under Section 304A of the IPC. He was found not guilty for the offence punishable under Section 304 Part-II of IPC and acquitted thereunder. The driving license held by the accused in so far as it relates to heavy vehicles was suspended for a period of three years.
2. Challenging the conviction and sentence in S.C.No.92/1999, the accused preferred Crl.Appeal No.308/2003 before the Sessions Court, Palakkad. By judgment dated 24.06.2006, the learned Additional Sessions Judge, Fast Track Court No.-III, Palakkad Crl.Rev.Pet.No.3110 OF 2006 3 dismissed the appeal, confirming the conviction and sentence passed by the learned Assistant Sessions Judge. Feeling aggrieved, the accused preferred this revision before this Court.
3. Prosecution case in brief is that, on 04.11.1996, at about 11.30 am, the accused drove a mini lorry bearing registration No.KL-10B-1576 through Koottanad- Padinjarangadi public road in a rash and negligent manner so as to endanger human life, and as a result of which five persons namely Shanavas, Pathumma, Rahmath, Riyans and Ajmal sustained injuries and succumbed to the injuries later. It is further alleged that the accused caused the death of the above persons by doing an act with the knowledge that his act was likely to cause death of the aforesaid persons.
4. On committal, after complying with the usual formalities, the learned Assistant Sessions Judge framed charges against the accused for the offences punishable under Sections 279 and 304 Part-II IPC. On going through the court charge dated 02.11.1999, it is brought Crl.Rev.Pet.No.3110 OF 2006 4 out that the trial court framed charge under section 304 Part-II IPC, specifically stating that the accused on 04.11.1996, at about 11.30 a.m, at Padinjarangadi drove a mini lorry in a rash and negligent manner and caused the death of five persons with the knowledge that the act was likely to cause death and thereby committed an offence of culpable homicide not amounting to murder punishable under section 304 Part-II of the IPC.
5. During the trial, PW1 and PW22 were examined and marked Exts.P1 to P21 on the side of the prosecution. MO1 and MO2 were marked as material objects. On closing the prosecution evidence, the accused was questioned under Section 313 of Cr.P.C. No defence evidence was adduced from his side.
6. Learned counsel for the revision petitioner, Sri.C.P.Udayabhanu submitted that the trail court has not properly understood the distinction between 'killing by rash or negligent act' and 'culpable homicide not amounting to murder'. According to the learned counsel, Section 304-A of IPC cannot be applied when intention to Crl.Rev.Pet.No.3110 OF 2006 5 cause death or knowledge that the act done would likely or in all probability cause death is there. In other words, it is contended that Section 304-A IPC applies only in cases where death is caused without any such intention or knowledge by what is described as a rash or negligent act. Thus, it is argued that when there is voluntary commission of an offence against a person, Section 304-A IPC has no application. In support of the legal proposition, the learned counsel for the revision petitioner relied on the decision report in Vijayan V. state of Kerala [1991(1) KLT 325].
7. PW15 is the only witness who supported the prosecution case. PW15 testified that the incident took place between 11 am and 12 pm on 04.11.1996. He stated that the incident took place at Thanneercode, which is situated at a distance from Padinjarangadi. According to him, a mini lorry hit on the front side of the autorickshaw and as a result of which all the passengers in the autorickshaw sustained injuries. Later, he came to know that all the passengers in the autorickshaw Crl.Rev.Pet.No.3110 OF 2006 6 succumbed to the injuries.
8. PW1, the Chief Medical Officer, West Fort Hospital, Thrissur examined the injured and issued Exts.P1 to P3 wound certificates. PW2 is the Professor of Forensic Medicines and PW3 is another doctor who conducted postmortem on the body of the deceased persons.
9. Apart from the evidence of PW15 and PW1, no reliable evidence was adduced by the prosecution to prove the occurrence. On going through the oral evidence of PW1, it can be seen that the accused drove the mini lorry in a rash and negligent manner on the date of occurrence. The trial court has not framed any charge against the accused for the offence punishable under Section 304-A IPC. However, the trial court framed charge under Section 304 Part-II. In Vijayan's case (supra), this court held in paragraph No.7 of the judgment as follows:-
7. Conviction for an offence under Section 304-A cannot be justified for the further reason that there was no charge.
This is not a case coming under Section 215 of the Code of Crl.Rev.Pet.No.3110 OF 2006 7 criminal procedure, which involves error in stating either the offence or the particulars which has not misled the accused or did not occasion failure of justice. The matter cannot come under section 222 of the Code of Criminal Procedure also. Offences under Sections 304 and 304-A are independent offences. Section 304-A is not a minor offence constituting only some of the several particulars necessary for constituting the offecne under Section 304. On the other hand, the particulars of the offence under Section 304 will exclude the offence under Section 304-A. When a person is chargesheetd and tried for having committed culpable homicide alone, he could be convicted for an offence punishable under Section 323 or 324 IPC without charge for these offences because some of the several particulars necessary to constitute culpable homicide are enough to constitute Sections 323 or 324. But that is not the case with Section 304-A. In a charge under Section 304, the accused is not called upon to answer any rash or negligent act done without mens rea, which resulted in death. Therefore, conviction under Section 304-A must go for that reason also, in addition to the fact that no rash or negligent act is involved.
10. Evidently, this is a case where charge under Section 304 Part-II of the IPC was famed against the accused and accused was not called upon to answer any rash or negligent act done without mens rea, which resulted in the death of five persons. The police charge and the court charge against the accused were under Crl.Rev.Pet.No.3110 OF 2006 8 Section 304 Part-II of the IPC. However, he was convicted under Section 304-A IPC and 279 IPC. Admittedly, no charge for murder was framed in this case. Therefore, the question of intention of causing such bodily injury, as the offender knows to be likely to cause death of the persons on account of their peculiar physical condition coming under the 2nd Clause of Section 300 IPC does not arise for consideration.
11. The trial court framed charge for 'culpable homicide not amounting to murder' as defined under section 299 IPC, which was made punishable under Section 304 Part-II IPC. As held in Vijayan's case (supra), Section 304 and 304-A are independent offences. Section 304-A is not a minor offence constituting only some of the several particulars necessary for constituting the offence under Section 304 IPC.
12. The occurrence in this case is of the year 1996. The accused has been defending the case for more than 20 years. At this point of time, if this Court passes an order of remand to proceed against the accused for the Crl.Rev.Pet.No.3110 OF 2006 9 offence under section 304A of IPC by the jurisdictional Magistrate, no purpose will be served. The witnesses for the prosecution may not be alive or available. Hence such a course is not possible. Further, such a remand will cause serious prejudice to the accused. Needless to say that, the conviction and sentence imposed under Section 304-A IPC is clearly illegal. It is liable to be set aside in revision and I do so.
13. Having taken into the facts and circumstances of the case, including the oral evidence of PW1 to PW3 and PW5, this court is of the view that the court below rightly convicted and sentenced the accused for the offence under section 279 IPC. No interference in revision is warranted for the conviction and sentence imposed for the offence punishable under section 279 IPC. The offence committed by the revision petitioner clearly falls under Section 279 IPC. Therefore, the conviction and sentence under Section 279 IPC is sustainable. However, simple imprisonment for six months for the offence punishable under Section 279 IPC is on Crl.Rev.Pet.No.3110 OF 2006 10 the higher side. The offence under section 279 IPC prescribes punishment with imprisonment of either description for a term which may extend to six months, or with fine, which may extend to one thousand rupees, or with both. Imprisonment is not compulsory for the offence punishable under section 279 IPC. During investigation, the accused surrendered before the jurisdictional Magistrate on 06.11.1996. He was later released on bail on 18.11.1996. He underwent 12 days detention in judicial custody. Having taken into consideration of the detention by the accused during investigation stage, it is just and proper to reduce the sentence for the offence punishable under section 279 IPC to simple imprisonment for ten days and also to pay a fine of Rs.1,000/- and in default of payment of fine to undergo simple imprisonment for a period of three months. The accused is entitled to get set off for the period under which he had been in judicial custody in connection with the crime in this case.
14. In the result, the Crl.R.P. is partly allowed as Crl.Rev.Pet.No.3110 OF 2006 11 follows:-
(i) The conviction of the appellant/accused for the offence punishable under Section 304-A IPC and the sentence of imprisonment for two years stand set aside. The revision petitioner is acquitted for ofence punishable under Section 304-A IPC.
(ii) The conviction of the accused for the offence punishable under Section 279 IPC stands confirmed.
The sentence of imprisonment for six months is altered to simple imprisonment for a period of ten days and also to pay fine of RS.1,000/-(Rupees one thousand only), in default of payment of fine to undergo simple imprisonment for a period of three months more.
(iii) The revision petitioner is entitled to get set off during the period under which he had been in judicial custody in connection with this case.
(iv) The order of disqualification to hold the license stands set aside.
Sd/-
N.ANIL KUMAR JUDGE ajt