State of Kerala v. Radhakrishnan Nair — 1993 DIGILAW 241 (KER)

JUDGMENT Chettur Sankaran Nair, J. 1. The Appeal by the State of Kerala, and the Revision Petition by the husband and brother (P.W.1) of a lady, whose death gave rise to this case, are directed against the order of acquittal made by the Judicial Magistrate of First Class, Trivandrum in C.C.284/90. 2. Accused stood trial for having caused the death of one Uma Devi at or about 5.20 P.M. on 23.6.'88 on the Museum - Vellayambalam Public Road, by knocking her down while riding a motor bike in a rash and negligent manner. Prosecution case is that Uma Devi after talking with her friend Sarojam P.W.2, had put one foot on the road when the motor bike which the accused was riding came thundering down the road at a very high speed and hit her. The motor bike lost its course, moved on to the middle of the road and turned topsy turvey infront of a car KEV 3245, driven by P.W.7. The people who had gathered there, carried the injured woman to the General Hospital, Trivandrum and then to the Medical College Hospital where she died at 6.15 p.m. P.W.1 made a report to the police the next day at 7.30 a.m. Police registered a crime and proceeded with the investigation. Accused respondent was eventually charge sheeted. PWs 2, 4, 5 and 7 speak to the occurrence in great detail. 3. According to P.W.2, she and Uma Devi were talking to each other and then Uma Devi moved away to cross the road and catch a bus homewards. She put one foot on the road and then the motor bike which the accused was riding came at a high speed and hit her. She catapulted and fell on her head. To the same effect, is the evidence of P.W.4 who states that Uma Devi put one foot on the road when the motor bike came fast and hit her. The motor bike which was moving at a high speed had lost its course. P.W.5 also deposes on the same line and states that Uma Devi had put one foot on the road. Before she put the other foot, she was hit. P.W.7 driver of car K.K.V. 3245 also speaks on the same lines. In his cross examination, he says that Uma Devi might have taken one step or two. P.W.5 also deposes on the same line and states that Uma Devi had put one foot on the road. Before she put the other foot, she was hit. P.W.7 driver of car K.K.V. 3245 also speaks on the same lines. In his cross examination, he says that Uma Devi might have taken one step or two. These, four witnesses identified the accused as the person who was riding the motor bike at the relevant time. If their evidence is accepted, identity of the rider and the rash and negligent manner of driving, would stand proved. But, the learned trial Magistrate was not inclined to rely on this evidence. The Magistrate appears to think that the deceased was "admittedly crossing" the road and that in this process she was knocked down. Even that would not change the nature of the act, if the driving was rash or negligent. That apart, there is clear misdirection in the statement because, no witness says that Uma Devi was crossing the road or that she was somewhere on the middle of the road. Her intention may have been to cross the road. But, she was not crossing the road. She had only put her foot on the road and had only reached the shoulder of the road. It was then that she was hit. That is not a reason to import the imagery of crossing the road, - a common place defence. A reasonable and prudent driver, or rider of a bike would not drive so close to the footpath, where the pedestrians who intend to cross the road would place themselves. The high speed spoken to by the witnesses, is also indicative of rashness. The Magistrate says that speed is not a basis to infer guilt. He says that motor vehicles are "intended to take persons to their destinations in a reasonable short time". True. But, the rule of the road recognises the presence of others also on the road and speed must be modulated to road conditions. The nature of driving of a vehicle, can be judged only with reference to the place, manner of driving, traffic conditions in the area and other attendant circumstances. True. But, the rule of the road recognises the presence of others also on the road and speed must be modulated to road conditions. The nature of driving of a vehicle, can be judged only with reference to the place, manner of driving, traffic conditions in the area and other attendant circumstances. So viewed, the accused was guilty of riding motor bike in rash manner, in a high speed at a place, very close to the pavement, and in a manner in which he had no control over the speeding bike. I say so because, evidence of P.W.2 and the course taken by the bike, indicate that it was not on a steady course and not under control of the rider. The reasoning given by the Magistrate is unreasonable and cannot be sustained. 4. Imaginary doubts and vague hunches do not justify acquittal. As observed by the Supreme Court in Shivaji's Case ( AIR 1973 SC 2622 ). "........ The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good, regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape .......... proof beyond reasonable doubt ..... should not be stretched morbidly to embrace every hunch, hesitancy....." In State of U.P. v. Krishna Gopal and Another ( AIR 1988 SC 2154 ) the apex court again counselled against exaggerated devotion to doubts. "Doubts must be actual and substantial ........... uninformed legitimation of trivialities would make a mockery of administration of criminal justice". The doubts which the Magistrate felt are not reasonable doubts. The evidence establishes beyond reasonable doubt, the identity of the accused and the manner of riding. 5. Learned counsel for respondent accused commented on the delay in the first information report. The first information report was made only thirteen hours after the occurrence. But, the person who made the first information report was not an eye witness. Despatch is necessary but delay not always is fatal. In the instant case, the near relatives who are not eye witnesses were busy in the hospital and elsewhere after the death of Uma Devi. There is no unexplained delay, in making a report to the police. 6. Counsel then argued that identity of the accused cannot be found without a test identification parade. In the instant case, the near relatives who are not eye witnesses were busy in the hospital and elsewhere after the death of Uma Devi. There is no unexplained delay, in making a report to the police. 6. Counsel then argued that identity of the accused cannot be found without a test identification parade. Identity of the accused was not known at the time of the first information report. After examining the owner and keeper of the motor bike, the investigating agency found out the identity of the accused. Though there was no identification parade, the identification by witnesses can be relied on because the witnesses saw the accused at close quarters in broad day light and for an appreciable length of time. They saw him at close quarters and he was lying down on the road for sometime after he fell down. That was time and occasion enough, for identification. According to the accused he was on the motor bike though he would say that he did not ride it. His presence at the seens is thus not disputed. The defence that another person was riding the bike is not even probabilised. This is also an aspect supporting the prosecution case. The order of acquittal cannot be sustained and it is set aside. 7. Then comes the question of sentence. According to learned counsel for respondent accused, accused was below twenty one when the occurrence took place. He would say that the material time for purposes of probation is the time of the occurrence, and not time of conviction. A four Member Bench of the Supreme Court in Kaniji Missar and Another v. State of Bihar (AIR 1963 SC 1086) held that the relevant time is the time of conviction not the time of occurrence. A person would be below twenty one and above twenty one, at different points of time. The time for reckoning the age for applying probation has to be ascertained from the language of the section. S.6 of the Probation of Offenders Act reads: "Person under 21 years of age and is found guilty .......". (emphasissupplied) The time of finding guilt is the time for reckoning the age. The Supreme Court has said so and there can be no doubt thereafter. S.6 of the Probation of Offenders Act reads: "Person under 21 years of age and is found guilty .......". (emphasissupplied) The time of finding guilt is the time for reckoning the age. The Supreme Court has said so and there can be no doubt thereafter. However, counsel for accused invited my attention to the decision of the Supreme Court in Rattan Lal v. The State of Punjab ( AIR 1965 SC 444 ) where the court (by a majority 2 to 1) applied probation in the case of an accused who was below twenty one at the time of occurrence. The decision turned on the particular facts of that case and so are the decisions in Abdul Qayum v. State of Bihar ( AIR 1972 SC 214 ) and Musakhan and Others v. State of Maharashtra ( AIR 1976 SC 2566 ). The principle laid down by the Four Member Bench in Ramji Missar and Another v. State of Bihar ( AIR 1963 SC 1088 ) was not doubted, differed or dissented from by any Bench of coeval or larger authority. The Material time for reckoning the age is the time of conviction. At the time when the Probation of offenders Act was enacted in 1958, a person below twenty one might have been considered as one not fully aware of the consequences of his act. Legislative perceptions have since changed. A person who is eighteen is now considered of mature mind to cast his vote, and determine the course of the largest democracy in the world. Surely the Legislature reckons such a person, as one who knows what he is doing. That apart, if the court feels that there are good reasons not to apply probation it may do so. In Kamroonissa v. State of Maharashtra ( AIR 1974 SC 2117 ) the Supreme Court held that it is in the discretion of the competent court to grant or decline probation, even under S.6. I am of the view that this is not a fit case for probation. I do not find my way to accept the contention of learned counsel that accused being a young man, he should not be imprisoned. If the sentencing process involved only the sentencing court and the accused, considerations of applying probation could have been probably different. Justice to society and victim of the crime must also be meted out. I do not find my way to accept the contention of learned counsel that accused being a young man, he should not be imprisoned. If the sentencing process involved only the sentencing court and the accused, considerations of applying probation could have been probably different. Justice to society and victim of the crime must also be meted out. Crime cannot be rendered inconsequential. Though vengeance or harshness should not enter the sentencing area, it must have regard to justice to the aggrieved. In the instant case the husband of the woman is before this court grieving over his deprivation. We cannot turn the Nelson's eye to him. Road accidents are on the increase and the human costs thereof are distressing. Where a sense of road morality has to be instilled with deterrent sentences, the court cannot fail in its responsibility. In State of Karnataka v. Krishna ( AIR 1987 SC 861 ) the Supreme Court stressed the need for appropriate deterrence in such cases and imposed a prison sentence. Having considered the totality of circumstances, including the age of the respondent accused, the passage of time, as also the deprivation suffered by the Revision Petitioners, and the callous disregard for human life and safety displayed by the respondent accused, he is sentenced to suffer rigorous imprisonment for there months. A fine of Rupees Five thousand is imposed and this will be paid as compensation in equal parts to the Revision, petitioners. In default of payment of fine, respondent accused will suffer rigorous imprisonment for a further period of one month. The Appeal and Revision Petition are allowed as above.