Research › Search › Judgment

Kerala High Court · body

2020 DIGILAW 492 (KER)

K. P. Raju v. State of Kerala

2020-06-12

M.R.ANITHA

body2020
ORDER : M.R. Anitha, J. 1. This Criminal Revision Petition has been filed against the conviction and sentence passed in Crl.A. No. 240/2006 dated 24.01.2008 of the Additional District & Sessions Judge (Ad Hoc) Fast Track Court-II, Pathanamthitta. 2. Prosecution case in short is as follows: On 29.01.2004 at about 11 a.m. the revision petitioner/accused while riding the motorcycle bearing registration No. KL-03-H 9618, keeping the deceased Rafeeque on the pillion through Mangode-Athirunagal Road from east-west in a rash and negligent manner so as to endanger human life and reached near Anchumukku in front of the house of PW2, Purushothaman, he suddenly applied brake on seeing Tipper Lorry bearing registration No. KL-4B-3304 coming from the opposite side, resulting the pillion rider/deceased to throw out of the motor bike and fell on the road, hitting his head at the road and the said Rafeeque succumbed to the injuries while taking him to St. Joseph Hospital, Pathanapuram at about 11.45 a.m. and thereby the revision petitioner/accused committed the offence under Sections 279, 304A IPC. 3. On the side of the prosecution, PWs 1 to 14 were examined and Exts. P1 to P10 were marked. After the closure of prosecution evidence, accused was questioned under Section 313 Cr.P.C. He denied all the facts and circumstances put to him. Thereafter, on hearing both sides, the learned Magistrate found the revision petitioner/accused guilty and convicted and sentenced him to undergo simple imprisonment for three months for the offence under Section 279 IPC and further to undergo simple imprisonment for one year for the offence under Section 304(A) IPC. Both sentences were directed to run concurrently. Against which, Crl.A. No. 240/2006 was filed. Aggrieved by the concurrent finding of guilt of conviction and sentence, the revision petitioner/accused came up in revision for the various grounds stated in the memorandum of revision. 4. Notice was issued to the respondent and respondent appeared through Public Prosecutor and both sides were heard. 5. To prove the occurrence, PWs 1 to 3, 6 and 7 were examined. PWs 1 and 3 were the passengers in the cabin of the lorry bearing registration No. KL-4B-3304. PW6 was the lorry driver and PW7 was the Cleaner of the said lorry. PW2 is an independent witness Sri. Purushothaman, in front of whose house on the road the incident alleged to have occurred. PWs 1 and 3 were the passengers in the cabin of the lorry bearing registration No. KL-4B-3304. PW6 was the lorry driver and PW7 was the Cleaner of the said lorry. PW2 is an independent witness Sri. Purushothaman, in front of whose house on the road the incident alleged to have occurred. What PW1 said during chief examination is that, she was travelling in the cabin of the lorry, and she saw the motor bike coming from the opposite direction in speed and stopping and the pillion rider was thrown away. She also identified the accused as the person who was riding the motorcycle. During cross examination, she admitted that she had been talking to the lorry driver and the further suggestion that on hearing the noise she saw the motorcycle and the man on the road was not admitted by her. 6. PW3 is also a passenger in the cabin of the tipper lorry and she is the daughter of PW1. She would depose that the scooter came in speed and on seeing the lorry while applying brake, the person on the pillion fell down. During cross examination, she admitted that in the cabin of the lorry there were four people. She also stated that she had been talking to the driver. Further she stated that while she looked she saw the bike turning round and stopping. She further pleaded ignorance as to whether the lorry came and dashed against the handle of the bike. 7. PW6 was the lorry driver and his evidence is that while he was driving tipper lorry and reached near the place of occurrence, a bike came from the opposite direction and out of an accident the bike fell on the road. Apart from admitting that it was the accused who was riding the motorcycle he was not prepared to state anything incriminating against the accused and he was declared as hostile and cross examined by the learned Assistant Public Prosecutor. During cross examination, he would admit that initially the case was registered making him as the accused. 8. PW7 is the Cleaner of the lorry. He would depose that the incident occurred on the road leading from Athirunagal to Anchumukk and PW6 was driving the lorry and while he was sitting in the cabin, a bike came and applied sudden brake and hence fell down. 8. PW7 is the Cleaner of the lorry. He would depose that the incident occurred on the road leading from Athirunagal to Anchumukk and PW6 was driving the lorry and while he was sitting in the cabin, a bike came and applied sudden brake and hence fell down. He would also state that, it was the accused, who was riding the bike. He also stated that the accident occurred since the accused rode the motorcycle negligently. 9. PW2 is Purushothaman in front of whose house on the road the incident alleged to have occurred. He would depose that, on 29.01.2004 at 10.45 a.m., in front of his house on the road, a motorcycle came from east and applied brake, then the motorcycle turned round and fell down. The person travelling on the pillion also fell down and died. He identified accused as the person who was riding the motorcycle. According to him, the incident occurred since the bike came in speed and applied brake. During cross examination, he would admit that at the time of incident he was filling earth in his courtyard. 10. PW5 was the Head Constable attached to Koodar Police Station on the date of incident and he deposed that on 29.01.2004 at 12.15 p.m. accused-K.P. Raju came to the station and gave F.I.S., which is marked as Ext. P2. He also prepared mahazar by looking at the documents with respect to the motorcycle and that mahazar is marked as Ext. P3. 11. PW4 is the Doctor who conducted post-mortem on the body of the deceased Rafeeque and issued post-mortem certificate, Ext. P1. As per the certificate, deceased died due to the injury to the lung and lever. PW8 is the witness in Ext. P4 inquest of the deceased. PW9 is the witness in Ext. P5 scene mahazar. PW10 was the Motor Vehicle Inspector, Adoor, who inspected the motorcycle KL-03-H-9618 and issued Ext. P6 certificate. PW11 was the S.I. of Police, who registered the FIR based on Ext. P2 FIS recorded by PW5 and the FIR is marked as Ext. P7. He prepared the inquest of the deceased and also the scene mahazar Ext. P5. He seized the motorcycle by describing in Ext. P5 seizure mahazar. He also prepared Ext. P3 seizure mahazar while seizing the documents pertaining to the vehicle. P2 FIS recorded by PW5 and the FIR is marked as Ext. P7. He prepared the inquest of the deceased and also the scene mahazar Ext. P5. He seized the motorcycle by describing in Ext. P5 seizure mahazar. He also prepared Ext. P3 seizure mahazar while seizing the documents pertaining to the vehicle. PW12 is the Scientific Assistant attached to Pathanamthitta District Police Office during the relevant time who inspected the suspected vehicles i.e. KL-4B-3304 Tipper lorry at Koodar Police Station and also examined the motorcycle KL-03-H 9618 and two abrasions were noted on the bike. The certificate issued by him is marked as Ext. P8. PW13 is the owner of motorcycle bearing registration No. KL-03-H 9618 who produced the records pertaining to the motorcycle at the police station. Ext. P9 is the notice issued to him seeking for the details of the rider of the motorcycle and Ext. P9(a) is the acknowledgement by him in the notice. He also stated that at the relevant time, the accused had been riding the motorcycle and Ext. P10 is the reply given by him. PW14 was the C.I. Of Police, Konny who verified the investigation of PW11 and filed the charge sheet. 12. According to the learned counsel for the revision petitioner, the crime was actually registered against PW6 the driver of the tipper lorry bearing registration No. KL-4B-3304 as per the FIS given by the revision petitioner/accused and subsequently due to the influence of the lorry driver he has been falsely implicated as the accused. It is also his contention that there is no allegation for the prosecution that he was riding the motorcycle in a rash and negligent manner and the only allegation is that on seeing the tipper lorry coming from the opposite direction he suddenly applied brake and that resulted in the accident. So the ingredients under Section 279 and 304(A) IPC were also failed to be alleged and proved by the prosecution. He would further contend that, all the witnesses, except PW2, examined to prove the occurrence were the passengers in the lorry and they have been supplied by the lorry driver in order to exonerate himself from the criminal liability. So the ingredients under Section 279 and 304(A) IPC were also failed to be alleged and proved by the prosecution. He would further contend that, all the witnesses, except PW2, examined to prove the occurrence were the passengers in the lorry and they have been supplied by the lorry driver in order to exonerate himself from the criminal liability. So, according to him, the prosecution failed to prove the offence as alleged against him beyond any reasonable doubt and hence the conviction and sentence passed by the trial court which has been confirmed by the appellate court is without properly appreciating the facts and circumstances in a correct perspective. 13. The fact that the deceased Rafeeque died due to the accident and resultant injuries sustained by him is not seen disputed. The evidence of PW4, the Doctor, who conducted the post-mortem on the body of the deceased and Ext. P1 postmortem certificate and also the inquest report, which is marked as Ext. P4 through PW8 will leave no room for any doubt with regard to the factum regarding the death of the deceased. No argument in that regard is also advanced from the learned counsel for the revision petitioner. 14. The fact that the revision petitioner had been riding the motorcycle bearing registration No. KL-03-H 9618 is also not seen disputed. Moreover, PW13, the owner of the said motorcycle also gave evidence and Ext. P9, the notice issued to him and Ext. P9(a) acknowledgement made on the same by him and his uncontroverted evidence that the revision petitioner had been riding the motor cycle during the relevant time would also substantiate that fact. So the only question for determination is whether the accident occurred due to the rash and negligent riding of the motorcycle by the revision petitioner, which ultimately led to the death of the deceased Rafeeque. It is true that PWs 1 to 3 and 7, the Cleaner of the lorry stated about the speed of the accused while riding the motorcycle. According to PW1, accused came in bike in speed and stopped and the pillion rider fell down. Evidence of PW2 is also to the effect that the rider applied brake resulting in the bike to revolve and fell down and the pillion rider also fell down. He also stated that the reason behind the incident is the speed of the bike and applying of the brake. Evidence of PW2 is also to the effect that the rider applied brake resulting in the bike to revolve and fell down and the pillion rider also fell down. He also stated that the reason behind the incident is the speed of the bike and applying of the brake. PW3 also deposed that the scooter came in over speed and applied brake on seeing the lorry and pillion rider fell down. So it could be seen that PWs 1 to 3 apart from stating about the speed of the motorcycle did not even mention anything about the rash and negligent riding of the scooter by the accused. PW6, the lorry driver would only state about the bike accident and further that the motorcycle ridden by the accused was found to be falling down. But further he was not prepared to admit his 161 statement that due to the sudden application of break of the motorcycle that it was fell down and subsequently he was declared as hostile. 15. It is relevant in this context to note that initially the crime was registered against PW6, the lorry driver as per the FIS given by the revision petitioner. Subsequently, the report was filed (though it is not seen marked) and the revision petitioner herein has been arrayed as an accused. PW6 was transposed as a witness. So the attitude of PW6 in not supporting the case has got much relevance in this case because he himself was the original accused. So also what he would state is only that an accident has occurred. 16. It is in this context the other factors which had emerged from the evidence adduced by the prosecution assumes importance. Admittedly, by the prosecution revision petitioner was riding the motorcycle from east-west. It has also come out that the road was steep in that area and accused was climbing down and the lorry driver was climbing up. Almost all the witnesses cited by the prosecution would state that accused applied brake on seeing the lorry coming from the opposite direction. On perusing the scene mahazar, it is seen that the width of the tar road at the place of occurrence is 2.70 mtrs. The scene mahazar would show that the place of occurrence is 1.27 mtrs from the southern tar end towards north and 2.47 mtrs south from the northern tar end. On perusing the scene mahazar, it is seen that the width of the tar road at the place of occurrence is 2.70 mtrs. The scene mahazar would show that the place of occurrence is 1.27 mtrs from the southern tar end towards north and 2.47 mtrs south from the northern tar end. So when the revision petitioner has been coming from east to west, his correct side would be the southern side of the road. So the scene mahazar would reveal that his motorcycle was 1.27 mtrs towards north from the southern tar end. That would indicate that he was on the correct side at the alleged time when the accident occurred. Since the road was steep in that area, on seeing the lorry coming from the opposite direction he might have applied the brake and that may be the only option left to a rider in such a situation. All the witnesses stated in corroboration that on applying brake the motorcycle fell and the pillion rider also fell down. If that be so, whether any rashness or negligence on the part of the revision petitioner so as to endanger human life can be attributed or whether any rash or negligent act on the part of the revision petitioner, has caused the death of the deceased, is the question to be answered. 17. As I stated earlier, none of the witnesses except PW7 states about the negligence on the part of the revision petitioner. PW7 is the Cleaner in the lorry which was driven by PW6 against whom originally the FIR was registered. It is to be noted in this context that PW6, the lorry driver was not prepared to state about any rashness or negligence on the part of the accused and he would only state about the accident occurred and further that it was the accused who was riding the motorcycle and he would only state that he could see motorcycle falling down. PW7, the Cleaner of the lorry though stated in chief examination that accused had been riding the motorcycle negligently by talking which has resulted in the incident and it is due to the sounding of horn of the lorry that he had applied the brake etc, none of the other witnesses has given any such statement. PW7, the Cleaner of the lorry though stated in chief examination that accused had been riding the motorcycle negligently by talking which has resulted in the incident and it is due to the sounding of horn of the lorry that he had applied the brake etc, none of the other witnesses has given any such statement. In other words, the evidence of PW7 is not consistent with the evidence of other supporting witnesses examined from the side of the prosecution. His interest in the matter would be more clear when he denied during cross examination that the case was originally registered by arraying PW6 as an accused. So what could be depicted from the evidence adduced from the side of the prosecution is only that the accused was riding the motorcycle through the correct side of the road and he was going down and the lorry was coming in the opposite direction and he applied brake on seeing the lorry and that has resulted in the accident. 18. The lorry was completely removed from the scene of occurrence by the time the scene mahazar was prepared. So what actually was the distance in between motorcycle and the lorry and whether the lorry was coming on the proper side etc. are not revealed either from the evidence or from the records produced from the side of the prosecution. So, the mere fact that on seeing the vehicle coming from the opposite direction, on applying brake by the rider, the passenger on the pillion fell down on the road, cannot be taken as a factum to infer any rash and negligent act on the part of the revision petitioner/accused. The rashness or negligence on the part of the revision petitioner could have been inferred if at all the motorcycle had dashed against the lorry which was coming from the opposite direction and thereby pillion rider thrown out of the motorcycle. 19. Learned counsel for the revision petitioner, in this context, took my attention to the decision in Thomas M.R. v. State of Kerala, 2015 KHC 889] wherein while dealing with Sections 279 and 304A IPC it has been held that in a case of rash and negligent driving, the duty of the prosecution does not end by alleging the rashness or negligence on the part of the driver. It must also be proved that the rashness and negligence was responsible for the accident and the consequent injury or death. It is also held that there is no presumption of negligence under Section 304A IPC from the mere fact that a man is knocked down and killed by a motorist. It is further held that the presumption of law is that a person is innocent unless and until his guilt is proved and simply because an accident occurred which resulted in injury or death to a pedestrian or cycle rider, it cannot be taken for granted that the driver of the vehicle involved in the incident is guilty of the crime. 20. In this case also, what is emerged from the facts and circumstances is only that while climbing down a road through the proper side by a motorist, on seeing the tipper lorry climbing up from the opposite direction he applied brake and that has resulted in throwing away of the pillion rider from the motorcycle and the motorcycle twisting to one side and falling. So it cannot, be taken as a proof of rash and negligent driving on the part of the motorist-revision petitioner/accused. So also, none of the witnesses would state about the rash and negligent driving of the revision petitioner apart from a sentence of PW7, the Cleaner of the lorry that he was riding the motorcycle negligently on talking to the pillion rider, which has resulted in the accident. But none of the other witnesses would state about the conversation between the accused and the deceased. Moreover, PW1 and 3 would state that they were talking inside the cabin to the driver. So possibility of the Cleaner seeing the motorist talking to the pillion rider is also very remote. So on a close evaluation of the evidence adduced by the prosecution though some witnesses speak about the speed of the motorcycle they were not prepared to state about the rash and negligent driving of the motorcycle by the revision petitioner. In 2015 KHC 889, which has been referred above, the decision reported in Mohanta Lal Saba v. State of West Bengal, 1968 ACJ 124 ] has been quoted, where in it has been held that the statement of witness that the bus was coming at high speed, is not sufficient to justify the conviction. In 2015 KHC 889, which has been referred above, the decision reported in Mohanta Lal Saba v. State of West Bengal, 1968 ACJ 124 ] has been quoted, where in it has been held that the statement of witness that the bus was coming at high speed, is not sufficient to justify the conviction. In this case, at the most, some of the ocular witnesses stated that revision petitioner has been riding the scooter in speed. So that alone is not sufficient to attribute rashness and negligence on his part. 21. The learned counsel for the accused would next contend that the FIR was originally registered against the lorry driver, PW6 and subsequently he has been arrayed as an accused. But the report by which the revision petitioner has been transposed as the accused is also not seen marked. In this context, it is relevant to appreciate the evidence of PW11 who registered the FIR and conducted the initial investigation. He did not state anything about the transposition of PW6 as the witness and only states about the preparation of the inquest of the deceased and the scene mahazar and also the seizure of the motorcycle by describing in Ext. P3 seizure mahazar and according to him the further investigation was conducted by CW14. But CW14 who was examined as PW14 would only state about the verification of records and filing of charge. So in fact the report by which the revision petitioner has been transposed as accused in the case also was not brought in evidence by the prosecution. 22. It is also relevant in this context to note that Ext. P6 is the certificate issued by the M.V.I, Adoor who inspected the Hero Honda Motorcycle bearing registration No. KL-03-H 9618 involved in this accident. But as per Ext. P6 certificate no damage is noted. But in the scene mahazar Ext. P5 prepared by the Investigating Officer it has been stated that scratches and removal of paint had been seen on the left side clutch pedal and left side handle gripper is found to be torn and on its strip loss of paint by abrasion on the right side brake lever tip is also noted. But in the scene mahazar Ext. P5 prepared by the Investigating Officer it has been stated that scratches and removal of paint had been seen on the left side clutch pedal and left side handle gripper is found to be torn and on its strip loss of paint by abrasion on the right side brake lever tip is also noted. So the above damages noted by the investigating officer to the motorcycle at the scene of occurrence was not found to be noted by the M.V.I. PW12 the Scientific Assistant attached to Pathanamthitta District Police Office examined the motorcycle and issued Ext. P8 certificate. On an examination of Ext. P8 certificate also it has been stated therein that two abrasions were observed on the right shock absorber of the bike. One is 47 c.m and the other is 39 c.m respectively above from the ground level. So the above aspects also would indicate that no damage as such has been caused to the motorcycle ridden by the revision petitioner. So that also leads to an inference that there was only sudden application of break of the motorcycle which led to the throwing of the pillion rider to the road resulting in his death. So the facts and circumstances leads to an irresistible conclusion that prosecution failed to prove beyond any reasonable doubt that the rash and negligent driving of the motorcycle by the revision petitioner that resulted in the accident. So the revision petitioner/accused is entitled for benefit of doubt. So as has been rightly contended by the learned counsel for the revision petitioner the concurrent finding of guilt against the revision petitioner/accused by the courts below is on the basis of wrong appreciation of the facts and circumstances and evidence adduced in this case and that has caused miscarriage of justice and hence is liable to be interfered with. In the result, revision petition allowed and the conviction and sentence passed against the revision petitioner/accused is hereby set aside. Bail bond executed by the revision petitioner stands cancelled and he is set at liberty.