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2024 DIGILAW 1576 (KER)

PRASAD S/O RAJAN v. STATE OF KERALA

2024-11-29

MURALEE KRISHNA S.

body2024
ORDER : 1. This revision petition is directed against the concurrent finding of conviction and sentence imposed on the petitioner as per the judgment dated 3.12.2011 passed by the Court of Judicial First Class Magistrate-II, Perinthalmanna in CC No. 297 of 2008 and the judgment dated 13.5.2014 by the Additional Sessions Court-III, Manjeri in Crl. Appeal No. 426 of 2011. 2. As per the judgment of the Trial Court, the petitioner was convicted and sentenced to undergo simple imprisonment till rising of Court and to pay fine of Rs 1,000/- and in default to undergo simple imprisonment for one month under section 279 of the Indian Penal Code (‘IPC’ for short), to undergo simple imprisonment for one month and to pay fine of Rs.500/- and in default to undergo simple imprisonment for one month under Section 337 of IPC, to undergo simple imprisonment for six months and to pay fine of Rs.1,000/- and in default to undergo simple imprisonment for one month under Section 338 of IPC and to undergo simple imprisonment for one year and to pay fine of Rs.3,000/- and in default to undergo simple imprisonment for one month under Section 304A of IPC. 2.1 As per the judgment dated 13.5.2014, the Additional Sessions Judge-III, Manjeri confirmed the conviction and sentence. 3. Before the Trial Court, PWs 1 to 17 were examined and Exts P1 to P14 documents were marked. On closing the evidence of prosecution, the petitioner was examined under Section 313(1)(b) of the Code of Criminal Procedure (‘Cr.P.C’ in short). He denied all the incriminating circumstances brought out against him in the prosecution evidence. Ext D1 document was marked from the side of the petitioner. 4. The prosecution case, in brief, is that on 1.1.2007 at about 14.15 hours, the petitioner drove a TATA ACE goods vehicle bearing registration No. KL 9/S 1893 in a rash and negligent manner in overspeed by violating one-way traffic rule, through Palakkad- Kozhikode NH 213 and dashed it against an auto rickshaw bearing registration No. KL 10/T 8858 driven by PW-1. As a result of the accident PW-1 as well as three passengers in the auto rickshaw sustained injuries. Subsequently, one of the passengers namely, Reji Thoms, who is the husband of PW6 another passenger of the auto rickshaw, succumbed to the injuries on 3.1.2007 at 4.00 PM while under treatment at EMS hospital, Perinthalmanna. 5. As a result of the accident PW-1 as well as three passengers in the auto rickshaw sustained injuries. Subsequently, one of the passengers namely, Reji Thoms, who is the husband of PW6 another passenger of the auto rickshaw, succumbed to the injuries on 3.1.2007 at 4.00 PM while under treatment at EMS hospital, Perinthalmanna. 5. After considering the evidence on record in detail and hearing the learned Public Prosecutor and the defence counsel, the Trial Court held that it was due to the rash and negligent driving of goods vehicle by the petitioner the accident occurred, which resulted in the death of one of the passengers in the auto rickshaw and simple as well as grievous injuries to the remaining passengers. 6. Heard the learned counsel appearing for the petitioner and learned Public prosecutor. 7. The learned counsel for the petitioner would submit that PWs 1, 2 and 6 the eye witnesses examined from the side of the prosecution are interested witnesses. The test identification parade of the accused was not conducted during the investigation and trip sheet of the vehicle allegedly driven by the petitioner was not produced in evidence and hence the identity of the accused cannot be said as proved. The learned counsel relied on the judgment of this Court in Krishnankutty v. State of Kerala, 1988 (1) KLT 401 to substantiate his contention regarding the necessity of producing trip sheet to prove the identity of the accused. According to the learned counsel, the non examination of the owner of the offending vehicle as well as another injured in the auto rickshaw who were cited as witnesses from the side of the prosecution is fatal to the prosecution case. It is also highlighted by the learned counsel that though the victim died on 3.1.2007, in the rear page of Ext P14 FIR, the incorporation of Section 304A is stated as done on 2.1.2007 itself. This anomaly is not properly explained by the prosecution and it is also fatal to the prosecution case. 8. The learned Public Prosecutor argued that the Trial Court as well as the Appellate Court properly analysed the evidence and reached a right finding regarding rash and negligent driving of the vehicle by the petitioner. One person died in the accident and two persons sustained grievous injuries. 8. The learned Public Prosecutor argued that the Trial Court as well as the Appellate Court properly analysed the evidence and reached a right finding regarding rash and negligent driving of the vehicle by the petitioner. One person died in the accident and two persons sustained grievous injuries. The driving of the goods vehicle by the petitioner violating traffic rules itself is the proof of negligence. The date mentioned in Ext P14 as 2.1.2007 is a clerical error as borne out from the records itself that admittedly the death of the victim was on 3.1.2007. PWs 1 and 6 the injured witnesses were physically present at the place of occurrence and they identified the petitioner during evidence and hence the non-production of the trip sheet of the offending vehicle is not material in this case. 9. There were two persons travelling along with the deceased in the auto rickshaw bearing registration No. KL 10/T 8858. The prosecution examined PW-1 the driver of the auto rikshaw and PW6 the wife of the deceased and a co-passenger as occurrence witnesses. The evidence of PWs 1 and 6 would show that the petitioner drove the offending TATA ACE vehicle violating one-way traffic rules and dashed on the auto-rickshaw in which the deceased was travelling. The vehicle driven by the petitioner was in a high speed and it came in a reckless and negligent manner. The courts below analysed this evidence tendered by PWs 1 and 6 to find the petitioner guilty of the offences. PWs 1 and 6 identified the petitioner during the evidence. The judgment of the courts below would show that the identity of the petitioner was not disputed before the Trial Court when he was identified from the dock by the witnesses. 10. In Krishnankutty’s case (supra), the necessity of production of trip sheet was pointed out by this Court for the reason that none of the witnesses therein identified the driver of the offending vehicle. The facts of this case is entirely different and hence the necessity of production of trip sheet to identify the driver of the offending vehicle as held in Krishnankutty’s case has no application to the case on hand. As held by the Trial Court as well as the Appellate Court, there is absolutely nothing to show that the witnesses had any reason to falsely implicate the petitioner. 11. As held by the Trial Court as well as the Appellate Court, there is absolutely nothing to show that the witnesses had any reason to falsely implicate the petitioner. 11. It is trite that a Court exercising revisional jurisdiction will interfere with orders or judgments of the courts below only if those orders and judgments are suffering from incorrectness, illegality or impropriety. Unless the judgment passed by the learned Magistrate or by the Appellate Court is perverse or the view taken by the Court is unreasonable or there is non-consideration of any relevant material, or there is palpable misreading of records, the revisional Court is justified in interfering with the judgment. The revisional Court cannot act like an Appellate Court. 12. In State of Kerala v. Jathadevan Namboodiri, AIR 1999 SC 981 , the Hon'ble Supreme Court held thus: “In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.” 13. In Munna Devi vs. State of Rajasthan, AIR 2002 SC 107 the Apex Court in paragraph 3 held thus: “3. We find substance in the submission made on behalf of the appellant. The revision power under the code of Criminal procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. We find substance in the submission made on behalf of the appellant. The revision power under the code of Criminal procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the First Information Report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged.” 14. In Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke & Others, 2015 (3) SCC 123 , it has been held by the Hon'ble Supreme Court thus: “Revisional power of the court under S.397 to 401 of Cr.P.C. is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.” 15. As far as this case is concerned, the petitioner could not bring out anything to show that the judgment under challenge is vitiated due to any illegality, irregularity or apparent error. The learned counsel for the petitioner could not point out anything to show that the decision of the courts below is based on irrelevant facts and evidence, by ignoring the material facts. 16. The argument of the learned counsel regarding absence evidence regarding motive, it is trite that when the offence committed is proved, motive part loses its importance. Where there is clear proof of motive for the crime, that leads additional support to the finding of the court that the accused was guilty. But absence of clear proof of motive does not necessarily lead to a contrary conclusion. 17. In Ranganayaki v. State by Inspector of Police, AIR 2005 SC 418 , the Apex Court held thus: “10. Where there is clear proof of motive for the crime, that leads additional support to the finding of the court that the accused was guilty. But absence of clear proof of motive does not necessarily lead to a contrary conclusion. 17. In Ranganayaki v. State by Inspector of Police, AIR 2005 SC 418 , the Apex Court held thus: “10. Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in Red v. Palmer (Shorthand Report at page 308 May, 1856) thus: “But if there be any motive which can be assigned. I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal courts that atrocities crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties.” Though, it is a sound presumption that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailants. In Atley v. State of U.P. MANU/SC/0102/1955 : 1955 Cri. L.J. 1653, it was held “that is true, and where there is clear proof of motive for the crime, that lands additional support to the finding of the Court that the accused was guilty, but absence of clear proof of motive does not necessarily lead to the contrary conclusion.” 18. While appreciating the arguments addressed at the Bar, in the light of the above-settled position of law and also on perusing the materials on record, I find no reason to interfere with the findings of the Trial Court as well as the Appellate Court. While appreciating the arguments addressed at the Bar, in the light of the above-settled position of law and also on perusing the materials on record, I find no reason to interfere with the findings of the Trial Court as well as the Appellate Court. In the said circumstance, the conviction of the petitioner is confirmed. 19. The point now is whether any interference is needed on the sentence imposed on the petitioner. The judgment of the Trial Court was in the year 2011. The learned counsel for the petitioner submitted that the petitioner is having his aged mother and unmarried daughter aged 24 years as dependants. No criminal antecedent is reported against him. Considering these aspects, I am of the view that the substantive sentence imposed on him can be reduced to some extent by taking a lenient view. 20. In such circumstances, the revision petition is allowed in part by confirming the conviction, but modifying the sentence directing the petitioner to: (i) To pay a fine of Rs.1,000/- and in default to undergo simple imprisonment for a period of fifteen days for each of the offences under Sections 279 and 337 of IPC. (ii) To undergo simple imprisonment for three months and to pay a fine of Rs.1,000/- and in default of payment of fine to undergo simple imprisonment for one month under Section 338 of IPC. (iii) To undergo simple imprisonment for six months and to pay a fine of Rs.10,000/- and in default of payment of fine to undergo simple imprisonment for a period of two months under Section 304A of IPC. (iv) Substantive sentences shall run concurrently. (v) The fine amount if realised shall be paid to PW-6 as compensation under Section 357(1)(b) Cr.P.C. (vi) The petitioner is entitled for set off under Section 428 of Cr.P.C.