Research › Search › Judgment

Kerala High Court · body

2002 DIGILAW 410 (KER)

P. K. Scariah v. State of Kerala

2002-06-28

M.R.HARIHARAN NAIR

body2002
Judgment :- M.R.Hariharan Nair, J. The accused in C.C. 145/89 challenges the conviction entered by the judicial First Class Magistrate Court, Vaikom for offence under Sec. 279 and 304 A of the Indian Penal Code, as confirmed by the court of Session, Kottayam in Crl. A. 45/91 and the sentence of R.I. for three months for the offence under Sec. 279 of the I.P.C. and R.I. for one year for the other offence. 2. The prosecution case was that the accused drove his car bearing Registration No. KL –5 4206 from South to North along the Vaikom-Ernakulam public road on 19-10-1988 and at about 8.15a.m. it hit against the back of a bicycle in which one Narayana Pillai was proceeding in the same direction. Though the said cyclist was rushed to the Medical College Hospital, Kottayam on the same day at about 9.45 a.m., he succumbed to the injuries at about 6. 30 p.m. on the same day. 3. Sri T.R. Raman Pillai who appeared for the appellant submitted that the conviction as such is not challenged at this stage and that taking into account the peculiar circumstances of this case a prison term might be avoided and some other punishment allowable under law might be substituted. 4. In view of the above submission the only point for consideration is whether the accused can be given an alternative punishment avoiding the prison term. 5. The Point:- On the date of occurrence in this case the accused was aged 59 years. 14 years have passed by and he must be 73 years old now. The medical certificate produced along with Crl. M.P.3927/01 on 23.7.01 shows that the accused underwent treatment for cerebro-vascular complications with Right Hemisphere during the period from 29-1-2001 to 12-2-2001 as an inpatient in the S.H. Medical Centre, Kottayam with I.P. No. 7580/99 and that he was still continuing treatment at his residence as outpatient and advised to avoid excessive physical and mental strain which might precipitate a major stroke. During hearing today Sri. Raman Pillai submitted further that the accused had another similar episode requiring hospitalization and that he was actually discharged with advise of bed rest only on 20-6-2002. His days are said to be numbered. 6. During hearing today Sri. Raman Pillai submitted further that the accused had another similar episode requiring hospitalization and that he was actually discharged with advise of bed rest only on 20-6-2002. His days are said to be numbered. 6. The question that arises is whether in a motor accident case resulting in death of a person it is feasible to avoid a prison term and give a lighter punishment . In this regard Sri. Raman Pillai has placed before me the decision in Bhalachandra Waman Pathe v. The State of Maharashtra (1968 ACJ 38) That case resulted in death of a girl while she was crossing the road in consequence of rash and negligent driving by the accused. The apex court held therein as follows: The High Court appears to have been influenced by the fact that a human life had been lost. If that is so it had clearly lost sight of the fact that causing death is a necessary ingredient of an offence under section 304 A Indian Penal Code. Yet the legislature in its wisdom has left it to the discretion of the Courts to punish an offence under that section either with imprisonment or with fine or both. From that it is clear that the legislature did not consider that for an offence under section 304 A Indian Penal Code, a term of imprisonment is a must. On the other hand it did visualize the possibility of an offence falling under that provision being penalized by mere fine. 7. A.P. Raju v. State of Orissa (1995 supplemental (2) SCC 385) dealt with a case where a motor vehicle driven by the accused dashed against a boy who was standing on the Kutcha portion of a road which resulted in his eventual death. In the matter of punishment the apex court considered the fact the incident there in took place 15 years before the matter came up before the apex court. For about 8 years proceeding the consideration of the case by the apex court the accused was on bail. In the matter of punishment the apex court considered the fact the incident there in took place 15 years before the matter came up before the apex court. For about 8 years proceeding the consideration of the case by the apex court the accused was on bail. Taking into account these two facts the court observed that the interests of justice would be met if instead of sentencing the appellant to serve a term of imprisonment and sending him to prison again, he could be released under Sec.360 of the Cr.P.C. on his entering into a bond with a surety to keep good conduct and to be of good behaviour and keep peace for a period of one year. 8. It would appear from the above decisions that though motor accidents causing death of others have to be viewed seriously as laid down in Kuriakose v. State (1993 (2) 292) and adequate deterrent punishment should normally be meted out to the offenders, the application of principles of probation or even imposition of fine instead of a prison term is not altogether ruled out. Even Sec. 354 (4) of the Cr. P.C. leaves adequate discretion in the matter to the court provided adequate reasons exist and they are recorded in the judgment. It is clear from a perusal of Secs. 279 and 304 A of the I.P.C. that for both of these offences prison term is not a must. Both the sections provided for imposition of fine as an alternative or even along with a prison term. Thus the parliament has given a vide discretion to the court in the matter of punishment to be imposed even for offences under Sec. 279 and 304 A of the I.P.C. It cannot therefore be said that a prison term is a must. The courts will always have discretion to avoid a prison term in an appropriate case if facts and circumstances justify such an action and reasons are recorded. 9. In the present case the fact that the accused at present is in a very bad stage of health and is aged 73 years now has to be taken note of. His medical history shows that if he is sent to prison there is every likelyhood of his meeting with his end in the prison itself. 9. In the present case the fact that the accused at present is in a very bad stage of health and is aged 73 years now has to be taken note of. His medical history shows that if he is sent to prison there is every likelyhood of his meeting with his end in the prison itself. The fact that the occurrence in this case took place 14 years ago and that the accused has been on bail all along is also a matter to be taken note of along with his present age. 10. When all the said circumstances are taken into account, I am of the view that imposition of fine would be proper and adequate punishment for the petitioner. Consequently the sentence imposed by the trial court and confirmed by the appellate court is set aside and the accused is directed to pay a fine of Rs.12000/- for the offence under Sec.304 A of the I.P.C. and fine of Rs. 1000/-for the offence under Sec. 279 of the I.P.C. When the fine is realised a sum of Rs.10,000/-out of the same will be paid over to the legal heirs of the deceased. In case the fine is not paid the accused will undergo alternative term of S.I. for a period of three months and one month respectively. The fines will be paid within a period of one month from today to the trial court, which will issue necessary notice in the matter of release of the compensation amount directed to the legal heirs as above, to Venu, who is the son of the deceased whose details are made mention of in column 9 of Ext. P10 inquest report, as a representative of all legal heirs. I also declare, under Sec. 20 of the Motor Vehicles act, 1988 that the Appellant shall be disqualified from holding any driving license for the rest of his life. It was directed, as per order passed in Crl.M.P.583/94 on 3.3.94 that the petitioner should surrender his driving license. If it is surrendered it will be sent over to the Authority who issued the same along with a copy of this judgment for making appropriate endorsement/action as required by the M.V. Act and the Rules framed thereunder. It was directed, as per order passed in Crl.M.P.583/94 on 3.3.94 that the petitioner should surrender his driving license. If it is surrendered it will be sent over to the Authority who issued the same along with a copy of this judgment for making appropriate endorsement/action as required by the M.V. Act and the Rules framed thereunder. If, however, the license is not yet surrendered, necessary action for implementing the directions in this judgment as regards the license shall be pursued by the licensing authority on receipt of a copy of this judgment.