Kerala High Court
Name And Address Of The Revision vs Name And Address Of The on 26 March, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
THURSDAY, THE 19TH DAY OF MAY 2016/29TH VAISAKHA, 1938
CRL.REV.PET.NO. 1196 OF 2003 ( )
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AGAINST THE JUDGMENT IN CRA 592/2000 OF ADDITIONAL SESSIONS JUDGE,
NORTH PARAVUR DATED 26-03-2003
AGAINST THE JUDGMENT IN CC NO.335/1996 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT-I, ALUVA DATED 30-11-2000
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NAME AND ADDRESS OF THE REVISION PETITIONER(S)/
APPELLANT/ACCUSED :
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DASAN, S/O MANIYAN PULLIYAN,
KUMBALAM PARAMBIL HOUSE,
AMBATTUKAVU SIDE,
CHOORNIKKARA KARA, ALUVA.
BY ADV. SRI.SUNIL JACOB JOSE
NAME AND ADDRESS OF THE RESPONDENT(S)/COMPLAINANT :
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STATE OF KERALA,
REPRESENTED BY S.I. OF POLICE,
TRAFFIC UNIT,ALUVA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. MADHUBEN M.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 19-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
NS
P.D. RAJAN, J.
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Crl. R.P. No.1196 of 2003
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Dated this the 19th day of May, 2016
O R D E R
This revision petition is preferred by the accused against the judgment in Criminal Appeal No.592 of 2000 of Additional Sessions judge, North Paravur. He was charge sheeted in C.C. No.335 of 1996 by the Judicial First Class Magistrate Court-I, Aluva under Secs.279, 337, 338 and 304(A) of the Indian Penal Code (' IPC' for short). After trial, the learned Magistrate convicted the accused and sentenced to rigorous imprisonment for two years and fine of Rs.5,000/-, in default rigorous imprisonment for three months under Sec.304(A) IPC, rigorous imprisonment for one year and fine of Rs.1,000/-, in default rigorous imprisonment for three months under Sec.338 IPC, rigorous imprisonment for three months and fine of Rs.500/- in default rigorous imprisonment for one month under Sec.337 IPC and rigorous imprisonment for six months and fine of Rs.1,000/- in default, rigorous imprisonment for one month under Sec.279 IPC. Against Crl. R.P. No.1196 of 2003 2 that, he preferred the above Criminal Appeal before the Additional Sessions Court, North Paravur, where the learned Additional Sessions Judge dismissed the appeal. Being aggrieved by that, the accused preferred this criminal revision petition.
2. The charge against the accused is that on 16.08.1995 at 6.10 am., he had driven a bus KDE-1999 through Aluva-Perumbavoor public road from west to east in a rash and negligent manner, when it reached at Choornikkara, the vehicle hit against an auto rickshaw KDE-5077 which was coming from the opposite direction. As a result, passengers in the auto rickshaw sustained serious injuries and one of the passengers succumbed to the injuries. Traffic Police, Aluva registered a crime and after completing investigation, the Sub Inspector of Police, Traffic Police unit, Aluva laid charge in the trial court. To substantiate the charge, prosecution examined PW1 to PW20 and admitted Exts.P1 to P16 as documentary evidence. The incriminating circumstances brought out in evidence were denied by the accused Crl. R.P. No.1196 of 2003 3 while questioning him. He did not adduce any defence evidence.
3. Learned counsel appearing for the revision petitioner contended that there is no direct evidence to connect the accused to prove the rash and negligent driving. The evidence of PW6 and Ext.P1 trip sheet is not sufficient to prove the rash or negligent act also. No reliance can be placed on Ext.P1 trip sheet since it was not produced from proper authority. When there is no direct evidence to prove the rashness or negligence, the conviction and sentence passed by the trial court is unsustainable in law.
4. Learned Public Prosecutor contended that the trip sheet is a valid document to prove the identity of the vehicle and driver. But direct oral testimony of occurrence witnesses show that the vehicle was driven by the driver in a rash and negligent manner. If that evidence is analysed with the oral evidence of PW6 and with the trip sheet, that is a connecting link to prove the guilt of the accused.
Crl. R.P. No.1196 of 2003 4
5. The rashness or negligence can be termed as such nature of criminal act of negligence or rashness endangering human life. It is the degree of the negligence or rashness determines whether a particular act amounts to a rash and negligent act defined under the Section. When the doer of the act done an act in a reckless manner disregard to the consequence of the act such act can be constituted as a rash and negligent act. Sec.80 IPC provides that 'nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution'. In the absence of such proper care and caution such act is punishable.
6. Apex Court in S.N. Hussain v. State of Andra Pradesh [(1972) 3 SCC 18] held as follows:
(i) Rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and Crl. R.P. No.1196 of 2003 5 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.(para 7)
(ii) Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case.
7. Apex Court in Ravi Kapur v. State of Rajasthan [AIR 2012 SC 2986] held as follows :
Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case.
Therefore, every person who drives the vehicle on a public road has to take reasonable precaution so as to avoid danger to human life or to cause any hurt or injury to any person using public road. It is the primary responsibility of the prosecution to prove the case beyond reasonable doubt. The presumption of law is that a person is considered to be innocent unless and otherwise the prosecution proved its case beyond reasonable doubt. Such a presumption is available to an accused, who is Crl. R.P. No.1196 of 2003 6 charge sheeted for the offences of rash and negligent driving which resulted any bodily injury or any loss of life. In cases where accident occurred and which resulted in injury or death is not sufficient to presume that the accident was due to the rash and negligent driving of the accused, it is the primary duty of the prosecution to prove all the ingredients to attract the offence. Generally speaking, if a person is driving a motor vehicle on a public road, he is expected to drive the vehicle in control so as to enable him to prevent accidents or hitting against any vehicle or pedestrians who may use the road. In such circumstance, he can avoid any accident on the public road. If he drove the vehicle in a rash and negligent manner so as to endanger human life, it is an offence under Sec.279 IPC.
8. In this context, I have examined the evidence and the attending circumstances to find out the rash and negligent act of the revision petitioner. The occurrence was deposed by PW1, who is the injured in this case. His evidence shows that on 16.08.1995 at 6.00 a.m., he was Crl. R.P. No.1196 of 2003 7 travelling in an auto rickshaw. When he reached at the place of occurrence, the offending vehicle hit against the auto rickshaw and as a result, he sustained serious injuries. But he did not identify the driver of the bus KDE- 1999. PW2, the driver of the auto rickshaw also deposed that the incident was due to the rash and negligent driving of the bus, but he did not identify the driver of the offending vehicle. PW3, a passenger of the bus, deposed that he sustained injuries in the incident but he could not identify the driver. PW4 and PW5 are the eye witnesses, who did not identify the driver of the offending vehicle. Analysing the direct evidence of these occurrence witnesses, it is clear that they saw the incident, but they failed to identify the driver of the offending vehicle. PW6 deposed that on the date of incident, he was working as the conductor of the bus but he did not see the incident. He submitted Ext.P1 trip sheet to the Police which shows that on 16.08.1995, revision petitioner was the driver. PW6 mentioned his name and licence number in Ext.P1, which was marked as Ext.P1(a). During cross Crl. R.P. No.1196 of 2003 8 examination, he admitted that he prepared the trip sheet as per the request of the Police.
9. What is seen from the evidence of PW7 is that he examined PW1 and issued Ext.P2 wound certificate in which he noticed multiple injuries. He also issued Ext.P3 certificate. The alleged cause of injury was specifically mentioned in Exts.P2 and P3. PW10 examined PW3 and issued Ext.P5 certificate. Analysing the Medical evidence in Exts.P2, P3 and P5, it is clear that passengers in the auto rickshaw sustained injuries in the accident. PW13 conducted postmortem examination of the deceased and issued Ext.P8 certificate. He opined that the death was due to multiple injury sustained to the internal organs. PW16 examined one Saju and issued Ext.P11 certificate. He also examined one Benni and issued Ext.P12 certificate. It appears to me from Exts.P2, P3, P5, P8 and P11 wound certificates that passengers in the bus and auto rickshaw sustained injury and one passenger died in the accident.
10. PW8 and PW9 attested Ext.P4 inquest.
Crl. R.P. No.1196 of 2003 9 PW17 attested Ext.P13 mahazar. PW18 and PW19 have turned hostile. PW11 recorded Ext.P6 statement and on the basis of that he registered a crime. Ext.P7 is the First Information Report. The investigation was conducted by PW20. He prepared the inquest report. He arrived at the place of occurrence and Ext.P13 is the scene mahazar. On 18.08.1995, PW14, the Assistant Motor Vehicle Inspector inspected the vehicle and issued Ext.P9 report. No mechanical defect was noticed to the vehicle. He also issued Ext.P10 report after inspecting the bus -KDE-1999. He produced Ext.P14 report and ExtP15 trip sheet mahazar. After completing investigation, PW15 laid charge before the court.
11. There is no evidence to prove the identity. According to Rule 224 of the Kerala Motor Vehicles Rules 1989, the conductor or the driver of every public service vehicle shall maintain trip sheets in duplicates in Form "TSS" and "TSC", as the case may be, in English or in Malayalam approved by the State Transport Authority. According to Rule 225, custody of trip sheet shall be with Crl. R.P. No.1196 of 2003 10 the conductor, or in case there is no conductor, by the driver whenever the vehicle is in use. This court in Krishnankutty v. State of Kerala [1998 (1) KLT 401] held that an important ingredient of an offence of this kind is the identity of the accused, in which, paragraph 3 reads as follows:
" Evidence should be available from the trip sheet of the vehicle, from the owner of the vehicle, if the owner himself is not the driver, and from several other circumstances. It does not take uncommon skill to unearth such material." In another decision apex court in State of Haryana v. Sher Singh [2008 (15) SCC 571] it is held that :" There being no material to show that the vehicle was being driven in a rash and/ or negligent manner, the conviction cannot be maintained." Apex Court in Palliyalil Sidique v. State of Kerala [2013 (3) KHC 302] held that : proof of identity is necessary to convict an accused under Section 304(a) and 279 IPC".
Here, the only available evidence is the trip sheet. The name of the driver mentioned in the trip sheet alone is not sufficient to prove the rash and negligent driving of the driver. If other connecting evidence is available, it is a piece of evidence to connect the driver with the offence. In the absence of such evidence, the trip sheet alone will Crl. R.P. No.1196 of 2003 11 not in anyway help the prosecution to prove the identity of the accused.
12. Moral conviction can be no proof for legal evidence. However gruesome a crime be, guilt can be found only on proof according to law. An important ingredient of an offence of this kind is the identity of the accused. PW12 the driver of another bus KL-7A-1393 was also present at the place of occurrence. He also failed to identify the driver of the offending vehicle. The Apex Court in State of Karnataka v. Satish [1998 (8) Supreme Court Cases 493] held that in the absence of any material on record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". Relying the earlier decision when there is no evidence to prove the rash and negligent driving of the vehicle, the appellant is entitled to get the benefit of doubt. Analysing the evidence, it is found that prosecution utterly failed to prove the case beyond reasonable doubt. In case of rash and negligent driving for fastening criminal liability it is essential to establish Crl. R.P. No.1196 of 2003 12 that the death is the direct result of the rash and negligent driving of the accused. When there is no evidence to connect the identity of the accused, it is presumed that rash and negligent driving of the vehicle is not proved in this case. The courts below failed to appreciate that position and convicted the revision petitioner. The illegality committed by the trial court is to be rectified by this revisonal court.
In the result, the conviction and sentence passed by the trial court, which was confirmed by the appellate court under Sec.279, 337, 338 and 304(A) IPC are set aside. The accused is acquitted and set at liberty. This Criminal Revision Petition is allowed accordingly.
Sd/-
P.D. RAJAN
JUDGE
/ True Copy /
NS/21/05/2016 P.A. To Judge