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2021 DIGILAW 410 (KER)

Antony Joseph v. State of Kerala

2021-04-08

K.HARIPAL

body2021
JUDGMENT : K. Haripal, J. 1. This is an appeal preferred under Section 374 of the Criminal Procedure Code, hereinafter referred to as the Cr.P.C., by the accused in SC No. 409/2007 of the Additional Sessions Court (Ad hoc-II), Ernakulam. That case was originated on the final report laid by the Circle Inspector, Kunnathunadu in Crime 125/2006 of Thadiyittaparambu police station. 2. The summary of the prosecution allegation is that on 18.11.2006 at about 4.30 a.m., the accused/appellant drove a stage carriage with registration No. KL-2/U-2454, in a rash and negligent manner through Aluva-Perumbavoor road, from east to west, due to the said act, near MES junction at South Vazhakkulam kara in Vazhakkulam village, the bus hit against a jeep, KL-I-8224, which proceeded in the opposite direction, and in the impact of the incident, four passengers travelled in the jeep died and other co-passengers sustained serious injuries. The crime was registered on the basis of the first information statement given by Suhara, one of the injured who was travelling in the jeep. On conclusion of investigation, the charge sheet was laid before the Judicial First Class Magistrate Court, Perumbavoor alleging offence punishable under Sections 304 and 308 IPC. The Magistrate who took cognizance of the offence, after completing the procedural formalities, committed the case to the Court of Session, from where it was made over to the trial court. 3. After hearing counsel on both sides and perusing the records, the learned Judge framed charge, read over and explained to the appellant, to which he pleaded not guilty. He is on bail. He was defended by a counsel of his choice. 4. Sixteen witnesses, PWs 1 to 16, were examined on the side of the prosecution. Exts. P1 to P30 were also marked. After closing prosecution evidence, when examined under Section 313 Cr.P.C., the appellant denied the incriminating evidence spoken against him and reiterated his innocence. As this was not a fit case for acquittal under Section 232 Cr.P.C., the learned Additional Sessions Judge called the appellant to adduce evidence in defence, if any. But no evidence was adduced. 5. At the fag end of the proceedings, the learned Additional Sessions Judge altered the court charge to one under Section 304A IPC; when the charge was again read over and explained also, the appellant pleaded not guilty. But no evidence was adduced. 5. At the fag end of the proceedings, the learned Additional Sessions Judge altered the court charge to one under Section 304A IPC; when the charge was again read over and explained also, the appellant pleaded not guilty. The counsel on both sides endorsed that they do not want to examine the witnesses further, after the alteration of the charge. After hearing both sides, by the impugned judgment, the learned Judge found the appellant guilty of offence under Section 304A IPC and convicted him thereunder and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 10,000/-, in default to undergo simple imprisonment for three months. He was also found entitled to get set off under Section 428 Cr.P.C. That finding of guilt and sentence is under challenge in this appeal. 6. The learned counsel for the appellant vehemently challenged the finding of the trial court. According to him, rash and culpable negligence on the part of the appellant as a driver could not be proved by the prosecution. PWs 1 to 4 were the eye witnesses to the occurrence of which PWs 1 to 3 were the injured passengers of the jeep. PW4 turned hostile to the prosecution whereas the testimony of PWs 1 to 3, who attempted to support the prosecution case, could be shaken in cross-examination. According to him, rash and negligent driving depends on the manner of driving. PWs 1 and 3 have stated that they did not see the bus prior to the incident, whereas PW2 has spoken only about the negligence of the driver of the bus; he has not spoken anything about the speed of the bus. Referring to the decision in Mrs. Shakila Khader etc. v. Nausher Gama and another AIR 1975 SC 1324 ), he said that speed is not the only criterion to speak about rashness. He also urged that the scene mahazar would indicate that the jeep was on the wrong side; it was overloaded with twelve passengers inside and therefore, the incident had occurred due to the negligence on the part of the driver of the jeep. 7. On the other hand, the learned Senior Public Prosecutor defended the judgment of the trial court. 8. PW1 Santha was a passenger in the jeep. According to her, the incident had happened on 18.11.2006. 7. On the other hand, the learned Senior Public Prosecutor defended the judgment of the trial court. 8. PW1 Santha was a passenger in the jeep. According to her, the incident had happened on 18.11.2006. After attending pineapple farming operations, they were returning to Perumbavoor in the jeep which was driven by Radhakrishnan, PW3. She was travelling at the rear seat of the jeep; at that time a bus came in the opposite direction from Perumbavoor in a rash and negligent manner and hit on the jeep; it was a turning and four of her co-passengers died in the incident and others sustained injuries. There were twelve passengers in the jeep. She identified the accused as the driver of the offending bus. According to her, the bus had hit on the right front side of the jeep; by the time she saw the bus, it had hit on the jeep. As it was a turning, she did not see the bus approaching from the opposite direction, before the incident. 9. PW2 Suhara is the first informant who proved the statement marked as Ext. P1. According to her, the incident had occurred due to the negligence of the driver of the bus. She also testified that the incident had happened at the turning, that she did not see the bus approaching from the opposite direction. PW3 Radhakrishnan was the driver of the fateful jeep. According to him, after negotiating the MES turning, when he was ascending the road, the bus came from the opposite direction in an excessive speed and hit on the jeep. The incident had occurred due to the rash and negligent driving of the accused. In the incident, four passengers died and the right arm of his younger brother was chopped off. He also sustained injuries. According to him, the incident happened after he had passed the turning; it was drizzling at the time of the incident. 10. PW4 independent occurrence witness, who was an onlooker, turned hostile to the prosecution and was cross-examined by the Prosecutor. The other witnesses do not have material roles for the proof of the charge. They are the owner of the vehicle, the medical officers who issued wound certificate and who conducted autopsy of the body of the deceased, the Village Officer who attested the scene mahazar, the Sub Inspector who registered the crime and two investigating officers. 11. The other witnesses do not have material roles for the proof of the charge. They are the owner of the vehicle, the medical officers who issued wound certificate and who conducted autopsy of the body of the deceased, the Village Officer who attested the scene mahazar, the Sub Inspector who registered the crime and two investigating officers. 11. The learned counsel for the appellant was harping on the statements given at the time of cross-examination of PWs 1 and 3 to say that their evidence cannot be relied upon to justify the conviction arrived at by the trial court. But for reasons more than one, such an argument cannot be accepted. Firstly, in my assessment, the oral testimony of PWs 1 and 3 is not obliterated or shaken in cross-examination. of course, PW1 has stated that she had not seen the offending bus prior to the incident. It is also probable that a person who sits on the rear seat of the jeep might not have noticed the approaching vehicle from the opposite direction, much prior to the incident. But the testimony of PW3, the driver of the jeep, stands unshaken in cross-examination. He has stated in unambiguous terms that the bus had come in excessive speed and had attributed rashness and negligence on the part of the driver as the cause of the mishap. Faint attempts were made to say that the incident had happened at a curve. PW3 might not have seen the approaching bus since it was a curve. But, according to him, the incident had happened after he had negotiated the curve. 12. Secondly, even the defence has no case that PW3 the driver of the jeep was either rash or negligent and the incident had happened due to any act on his part. The place of occurrence was highlighted by the learned counsel, having regard to the Ext. P19 scene mahazar and Ext. P13 site plan, that the jeep was on the wrong side. Similarly, it was pointed out that the jeep was overloaded with twelve passengers, and that precisely was the reason for the incident. But such a plea has not been taken at the time of trial. Moreover, if at all we go to the extreme extent to assume that there was contributory negligence on the part of PW3, that is not a defence for the appellant/accused. 13. But such a plea has not been taken at the time of trial. Moreover, if at all we go to the extreme extent to assume that there was contributory negligence on the part of PW3, that is not a defence for the appellant/accused. 13. The oral testimony of PWs 1 and 3, especially that of PW3, has to be assessed vis-a-vis the impact of the occurrence. In the incident, four passengers, who were travelling in the jeep on the rear seat, lost their lives. Death of one of the ladies, as per the Ext. P1 first information statement, was instantaneous and three others had died on their way to hospital. The body of the jeep was detached in the impact of the hitting. Similarly, all the passengers who travelled in the jeep, except one had sustained grievous hurt; one of them lost his hand below the elbow. These are matters for inference to be drawn by the court and attributable only to the speed of the bus. As rightly observed by the learned Additional Sessions Judge, if the bus was moving in a normal speed, the impact would have been minimal, even if the driver of the jeep had gone astray. 14. The learned counsel took strain to say that, basing on Ext. P19 scene mahazar the incident had happened on the wrong side of the jeep. The scene mahazar indicates that the road had a width of 8.9 metres and the incident had happened 2.57 metres east from the western tar end. In this connection, one aspect requires to be highlighted here. Going by the charge sheet, the incident had happened 2.57 metres south from the northern tar end. It does not go in conformity with Ext. P19 scene mahazar. Whatever it may be, even assuming that the incident had happened on the wrong side of the jeep, as noticed earlier, had the driver of the bus been moving in a moderate speed, such an impact would not have resulted. 15. It has also come out that the road has a straight vision of 100-110 metres at the place of occurrence from either side. It is not a sharp curve which prevented proper vision for drivers for viewing each other from either side, in advance. 15. It has also come out that the road has a straight vision of 100-110 metres at the place of occurrence from either side. It is not a sharp curve which prevented proper vision for drivers for viewing each other from either side, in advance. Therefore, the submission of the learned counsel that due to the geographical position and topography of the road, the driver of the bus might not have seen the jeep before approaching the curve cannot stand judicial scrutiny. Ext. P13 site plan also rejects such a proposition. PW3 has stated that the incident had happened after his vehicle had passed the curve. This statement has not been rebutted. In other words, the appellant, as the driver, had clear vision to see the approaching vehicle from the opposite direction. The defence could not make out valid reasons to eschew the testimony of PWs 1 and 3, especially that of PW3; for the mere reason that they were passenger and driver respectively of the subject jeep, in the absence of overwhelming reasons, their evidence cannot be underestimated. As rightly noticed by the learned Additional Sessions Judge, the circumstances brought out through the oral evidence of these witnesses cannot be ignored. 16. Even though the identity of the driver of the bus was disputed before the trial court, that was overruled. Before this Court, such a contention was never raised. 17. On an overall assessment of the evidence and materials on record, the incident can be attributed only to the rashness and negligence on the part of the driver of the bus and therefore the trial court has rightly convicted the appellant for commission of offence punishable under Section 304A IPC. The conviction is confirmed. 18. Turning to the sentence, no doubt that the court has imposed maximum sentence awardable under Section 304A IPC. Having regard to the lapse of time, which is to be attributed to institutional laches, and taking note of the fact that the appellant has no criminal antecedents, the sentence is liable to be modified. Therefore, the sentence imposed by the trial court is modified and reduced to simple imprisonment for four months. He is entitled to get the benefit under Section 428 Cr.P.C. Appeal allowed in part, as above.