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2025 DIGILAW 307 (KER)

SHIBU S/o. ahammed PILLAI v. STATE OF KERALA

2025-02-18

C.S.SUDHA

body2025
JUDGMENT : 1. In this appeal filed under Section 374(2) Cr.P.C., the appellant, the sole accused in S.C.No.955/2011 on the file of the Court of Session, Alappuzha challenges the conviction entered and sentence passed against him for the offences punishable under Sections 279, 337, 304A IPC; Section 134 (a)(b) read with Section 187 of Motor Vechicles Act, 1988 (the M.V.Act) and Section 139 of the Electricity Act, 2003. 2. The prosecution case is that on 23/10/2009 at 11:45 a.m., the accused drove lorry bearing registration no.KL- 07/AG-7570 through the Alappuzha - Ernakulam National Highway from north to south in a rash and negligent manner so as to endanger human life and when he reached near Arthunkal bypass, the lorry dashed against the rear side of the car bearing registration no.KL-37/6977 which had been stopped at the traffic signal. The accused lost control of his vehicle and he knocked down Poojalakshmi Pai, the daughter of PW1. Thereafter, the lorry dashed against the electric and traffic signal post resulting in causing damages to the tune of Rs. 45,526/- to the KSEB. The accused neither informed the police about the incident nor took Poojalakshmi Pai to the hospital. Poojalakshmi Pai thereafter succumbed to the injuries on 31/10/2009 at 12:45 p.m. while undergoing treatment. Hence as per the final report, the accused is alleged to have committed the offences punishable under the aforementioned Sections. 3. Crime no.891/2009, Cherthala Traffic police station, that is, Ext.P10 FIR was registered by PW14, the then Sub Inspector, Traffic Unit, Cherthala police station based on Ext.P1 FIS of PW1. The investigation was conducted by PW13 and PW14 and the latter on completion of the investigation submitted the final report/charge sheet before the jurisdictional magistrate. 4. On appearance of the accused, the jurisdictional magistrate after complying with all the necessary formalities contemplated under Section 209 Cr.P.C. committed the case to the Court of Session, Alappuzha. The case was taken on file as S.C.No.955/2011 and thereafter made over to the Additional Sessions Judge, Alappuzha, for trial and disposal. 5. When the accused appeared before the court, a charge under Sections 279, 337, 304(A) IPC; 134 (a)(b) of the M.V Act and 139 of the Electricity Act was framed, read over and explained to the accused to which he pleaded not guilty. 6. 5. When the accused appeared before the court, a charge under Sections 279, 337, 304(A) IPC; 134 (a)(b) of the M.V Act and 139 of the Electricity Act was framed, read over and explained to the accused to which he pleaded not guilty. 6. On behalf of the prosecution, PW1 to PW14 were examined and Exts.P1 to P12 were marked in support of the case. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence. 7. As the trial court did not find it a fit case to acquit the accused under Section 232 Cr.P.C. he was asked to enter on his defence and adduce evidence in support thereof. No oral or documentary evidence was adduced by the accused. 8. On consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused guilty of the offences punishable under Section 279, 337, 304A IPC, Section 134(a)(b) read with Section 187 of the M.V. Act and Section 139 of the Electricity Act. Hence he has been sentenced to simple imprisonment for three months and to a fine of Rs.500/- and in default to simple imprisonment for 15 days for the offence punishable under Section 279 IPC; to simple imprisonment for two months and to a fine of Rs.500/- and in default to simple imprisonment for ten days for the offence punishable under Section 337 IPC; to rigorous imprisonment for one year and to a fine of Rs.10,000/- and in default to simple imprisonment for six months for the offence under Section 304A IPC; to a fine of Rs.500/- each for the offences punishable under Sections 134(a)(b) read with Section 187 of the M.V. Act and in default to simple imprisonment for ten days each and to a fine of Rs.10,000/- and in default to simple imprisonment for six months for the offence under Section 139 of the Electricity Act. The fine amount imposed for the offences punishable under Section 279, 337 and 304 A, if recovered, has been directed to be paid to PW1, the father of deceased Poojalakshmi Pai. The fine amount imposed for the offences punishable under Section 279, 337 and 304 A, if recovered, has been directed to be paid to PW1, the father of deceased Poojalakshmi Pai. From the fine amount imposed for the offence under Section 139 of the Electricity Act, an amount of Rs.8,000/- has been directed to be paid to the KSEB. The sentences have been directed to run concurrently. Set off under Section 428 Cr.P.C. has been allowed. Aggrieved, the accused has come up in appeal. 9. The only point that arises for consideration in this appeal is whether the conviction entered, and sentence passed against the appellant/accused by the trial court are sustainable or not. 10. Heard both sides. 11. It was submitted by the learned counsel for the appellant/accused that the evidence on record is totally unsatisfactory to establish the offences alleged against the accused. No rashness or negligence on the part of the accused has been established. It was only an error of judgment which resulted in the incident. In support of the arguments, reference was made to the dictum in Syad Akbar v. State of Karnataka, 1980 KHC 527 : 1980 (1) SCC 30 . 12. Per contra, it was submitted by the learned public prosecutor that the materials on record are sufficient to establish the offences alleged against the accused and there being no infirmity, no interference into the impugned judgment is called for. 13. In Syad Akbar (Supra), the appellant/accused therein was driving a passenger bus. When the bus reached the place of occurrence, a girl aged about 4 years ran across the road. The appellant swerved the vehicle towards the extreme right side of the road. Despite the same, the child was hit who died on the spot. The appellant was found guilty of the offence punishable under Section 304A IPC by the trial court and he was sentenced to imprisonment as well as fine. The judgment was confirmed in appeal by the Sessions Court as well as in revision by the High Court. The appellate court invoked the maxim of res ipsa loquitur to confirm the finding of the trial court. 13.1. The Apex Court noticed that the substance of the prosecution story that emerged from the testimony of the eyewitnesses was that at the material time, the accused therein was driving the bus slowly as there was a narrow bridge ahead. The appellate court invoked the maxim of res ipsa loquitur to confirm the finding of the trial court. 13.1. The Apex Court noticed that the substance of the prosecution story that emerged from the testimony of the eyewitnesses was that at the material time, the accused therein was driving the bus slowly as there was a narrow bridge ahead. The mother of the child came from the habitation of the village to go to the field across the road at some distance, where her husband was working. The child was following the mother. Before crossing the road, the mother directed the child not to follow her and to return home. However, when the mother crossed the road and descended into the deep ditch on the opposite side of the road, the child crying suddenly dashed across the road to join her mother. The appellant therein, to save the child, swerved the vehicle to the extreme right side of the road. According to the eyewitnesses, the appellant had sounded the horn also. However, the child was caught under the left front wheel of the vehicle and was crushed to death. One of the witnesses deposed that if the appellant had taken the bus beyond the point where the child was hit, the bus would have fallen into the deep ditch by the side of the road along with the passengers. During his examination under Section 313 Cr.P.C., the appellant stated that he was driving the vehicle slowly; that the child all of a sudden came on to the road from the left side to cross it; that in order to avoid a collision with the child, he had immediately swerved the vehicle towards the right side of the road, but he failed to save the child. Thus, the defence plea was that the incident could not be avoided in the circumstances, despite the care taken by him. Though the eyewitnesses had deposed that the vehicle was being driven slowly; that the child had come suddenly onto the road and that the driver had swerved the vehicle towards the extreme right to save her, but was unable to do so, was disbelieved and the appellant/accused convicted. 13.2. Though the eyewitnesses had deposed that the vehicle was being driven slowly; that the child had come suddenly onto the road and that the driver had swerved the vehicle towards the extreme right to save her, but was unable to do so, was disbelieved and the appellant/accused convicted. 13.2. It was held that the act of the appellant therein in taking the vehicle suddenly to the extreme right of the road, did not speak of negligence or dereliction of duty to exercise due care and control by the accused. Nor could it be said that the cause of swerving the vehicle to the right was unknown. The accused had given a reasonably convincing explanation of his conduct in doing so, and his version was fully supported by four prosecution witnesses who had seen the occurrence. In such circumstances, it was held that the maxim res ipsa loquitur could have no manner of application in the case. It was evident from the materials on record that the incident in the said case happened due to an error of judgment and not negligence or want of driving skill on the part of the accused. An error of judgment of the kind, such as the one referred to, which comes to light only on post-accident reflection, but could not be foreseen by the accused in that fragmented moment before the accident, is not a sure index of negligence, particularly, when in taking and executing that decision the accused was acting with the knowledge and in the belief that the same was the best course to be adopted in the circumstances for everyone's safety. Had the accused swerved the vehicle to the extreme right side of the road, not only to avoid collision with the child but also to avoid the risk of the vehicle falling into deep ditches on either side of the road, and the resultant possibility of far greater harm to the passengers in the bus. Hence it was held that the trial court as well as Sessions Court had gone wrong in applying the maxim and holding that there was rashness or negligence on the part of the appellant therein. Hence the appeal was allowed, and the accused acquitted. 14. Hence it was held that the trial court as well as Sessions Court had gone wrong in applying the maxim and holding that there was rashness or negligence on the part of the appellant therein. Hence the appeal was allowed, and the accused acquitted. 14. Coming back to the case on hand, I will briefly refer to the testimony of the material witnesses to ascertain whether the incident was due to an error of judgment of the accused or something that was beyond the control of the accused. Ext.P1 FIS was given by PW1, the father of the deceased on 23/10/2009 at 05:30 p.m. In the FIS it is stated that Poojalakshmi Pai, his daughter on the said day was returning home from school along with her friends. When they reached Arthungal bypass junction, a lorry bearing reg.no..KL- 07/AG-7570 coming from the north towards the south through the Alappuzha-Ernakulam National Highway dashed against a car bearing registration no. KL-37/6977 which was stopped at the traffic signal. The accused lost control of his vehicle and hit the electric post standing on the eastern side of the road and then hit his daughter. He had been told that the incident was due to the negligent driving by the driver of the lorry. PW1 when examined, stands by his version in Ext.P1 FIS. However, he has only hearsay knowledge about the incident. 14.1. PW2, an eyewitness, deposed that the incident took place on 23/10/2009. On the said day he was engaged in painting in the workshop situated on the eastern side of Arthungal bypass junction. Lorry-bearing registration No. KL-07/AG-7570 did not hit any other vehicle. The lorry came and hit the child and then on the electric post. Poojalakshmi Pai who was on a bicycle, was knocked down by the lorry. Seeing the incident, he ran towards the scene, by which time another person picked up the child and took her to hospital. He did not see the person driving the offending lorry. But he saw a person running away from the lorry. He identified the accused as the person who had taken to his heels on the said day. When PW2 was asked whether he had stated to the police that the lorry had hit a car bearing registration No. KL-37/6977, he answered in the affirmative. The incident occurred due to negligent driving by the accused. He identified the accused as the person who had taken to his heels on the said day. When PW2 was asked whether he had stated to the police that the lorry had hit a car bearing registration No. KL-37/6977, he answered in the affirmative. The incident occurred due to negligent driving by the accused. In the cross- examination PW2 deposed that the workshop where he was working is situated about 10 meters below the place of occurrence. When the incident occurred, he was standing outside the workshop polishing a car and not inside the workshop. He further deposed that the lorry first hit the car and then knocked down the child and finally dashed on the electric post. He does not know who was on the driver seat of the lorry. But he had seen the accused running away from the lorry. He did not identify the accused before the police. He identified the accused for the first time before the court. PW1 deposed that he had clearly seen the face of the person who had taken to his heels on the said day. To a suggestion that it was the car that had knocked down the child, PW2 denied the same and reiterated that it was the lorry that had knocked down the child. 14.2. PW3 deposed that he is an attestor to Ext.P2 scene mahazar. 14.3. PW4 deposed that he had seen the incident which took place on 23/10/2009 at 11:30 a.m. The lorry bearing registration no. KL-07/AG-7570 driven in speed was coming through the road from the north to the south. The driver applied brakes at the signal, but the vehicle did not stop. First the lorry hit a stationary car in front and then it knocked down the child. Thereafter, the lorry hit the electric post situated on the eastern side of the road because of which, the post was broken, resulting in electric supply of the entire area being disrupted. He went to the spot hearing the noise and commotion. According to him, the incident happened due to the fault of the accused. He saw the driver of the lorry opening the door and running away. He also deposed that he saw the driver getting down from the driver's seat and running away. He identified the accused as the person who took to his heels on the said day. According to him, the incident happened due to the fault of the accused. He saw the driver of the lorry opening the door and running away. He also deposed that he saw the driver getting down from the driver's seat and running away. He identified the accused as the person who took to his heels on the said day. The incident happened due to the carelessness of the driver of the lorry. His workshop is situated about 6 meters away from the scene of occurrence. In the cross-examination PW4 deposed that at the time of incident, he was in his workshop polishing a car. He noticed when he heard a big noise. Hearing the noise when he turned and looked, he saw the lorry driver getting down from the driver’s seat and running away. PW4 also deposed that the signal was red and hence the driver of the lorry had applied a sudden brake. The child was standing by the side of the road with her bicycle. He had taken the child to the hospital. PW4 denied the suggestion that the child was knocked down by the car and that the incident happened due to the carelessness of the driver of the car. PW4 reiterated that it was the lorry which caused the incident. 14.4. PW13, Additional S.I., Cherthala police station, deposed that on 31/10/2009, he had prepared Ext.P3 inquest report of the deceased. PW6 deposed that he is an attestor to Ext.P3 inquest report. 14.5. PW7, Assistant Engineer, Electricity Board, deposed that he had issued Ext.P4 certificate to the effect that the KSEB had sustained damages to the tune of Rs.45,526/- as the lorry bearing registration no.KL-07/AG-7570 had dashed against the electric post and knocked it down. 14.6. PW8, CMO, KVM hospital, Cherthala, deposed that on 23/10/2009, he had examined Poojalakshmi Pai, aged 14 years, and had issued Ext.P5 wound certificate. When he examined the patient, she was unconscious. On examination, he noted the following injuries - “Patient was unconscious pupil reacts slightly. A bone deep L/w of 3 cm x 1 cm over the (L) parietal region. (2) Another bone deep L/w of 4cm x 1cm x ½ cm size just below the above wound. (3) An abrasion of 4 cm x 3 cm seen over the left knee joint patient was referred to Lakeshore hospital after first aid.” 14.7. A bone deep L/w of 3 cm x 1 cm over the (L) parietal region. (2) Another bone deep L/w of 4cm x 1cm x ½ cm size just below the above wound. (3) An abrasion of 4 cm x 3 cm seen over the left knee joint patient was referred to Lakeshore hospital after first aid.” 14.7. PW9, CMO, Lakeshore hospital, Kochi, deposed that on 23/10/2009 he had examined Poojalakshmi Pai and had issued Ext.P6 wound certificate. She had sustained grievous injuries. The alleged cause was that while she was riding a bicycle, she was hit by a lorry at about 11:30 a.m. on 23/10/2009 at Arthungal. She died on 31/10/2009 at 12:45 p.m. Ext.P6 is the wound certificate issued by him in which he has noted in detail the injuries seen. 14.8. PW10, Assistant Surgeon, Taluk Headquarters hospital, Cherthala, deposed that on 31/10/2009, he had conducted postmortem examination on the body of the deceased and issued Ext.P7 postmortem certificate. According to him, death was due to the head injury sustained. 14.9. PW11, AMVI, Cherthala, deposed that on 26/10/2009 he had inspected lorry bearing registration No.KL- 07/AG-7570 as well as the car bearing registration No.KL-37/6977 Chevrolet Tavera and issued Exts.P8 and P9 certificates. The damage to the aforesaid vehicles have been noted in column no.7 of the certificates. 15. I also refer to the explanation given by the accused when he was questioned under Section 313 Cr.P.C. According to the accused, he along with his friend had gone to Amrita hospital on the date of the incident to meet his friend and on their way back, he had boarded the offending lorry at Edappally. When they reached near Cherthala, the vehicle met with an accident. The driver of the lorry ran away and seeing this he along with his friend also took to their heels. After some time, he came back to take his bag which had been kept inside the lorry. He came to know that the vehicle had been taken to the police station. Therefore, he went to the police station to get his bag back. The police then informed him that he needed to execute a bail bond to get back his bag. Accordingly, he executed a bail bond. 16. The testimony of the eyewitnesses has not been discredited or disproved in any way. Therefore, he went to the police station to get his bag back. The police then informed him that he needed to execute a bail bond to get back his bag. Accordingly, he executed a bail bond. 16. The testimony of the eyewitnesses has not been discredited or disproved in any way. The scene mahazar, that is Ext.P2, shows that the road at the place of occurrence is having a width of about 13 meters. The incident took place about 1½ meters from the eastern tar-end of the road. Going by the testimony of the witnesses, the lorry had first hit the car which was stationary at the traffic signal. Then the accused lost control of his vehicle, knocked down the child and then dashed against the electric post standing by the side of the road which was damaged and broken. The accused has never a case that the incident happened due to an error of judgment. Ext.P8 certificate issued by PW11, AMVI, shows that there were no mechanical defects for the lorry. The brake system was also working fine. Then the question is how did the incident occur? 17. It is true that vehicles are intended to be driven in speed. But the driver of the vehicle must have control over the vehicle and must be able to stop the vehicle wherever necessary. Here, PW4 deposed that the vehicle was being driven in speed. It is true that no evidence has been brought in regarding the speed limit at the place of occurrence. But the fact that the lorry had hit the stationary car in front of it; that the driver of the lorry lost control of the vehicle resulting in the child being knocked down and then hitting the electric post causing damages is established through the testimony of the prosecution witnesses, whose testimony has not been disproved or discredited in any way. The dictum in Syad Akbar (Supra) is not applicable to the facts in the present case. In the said case, the accused/the driver therein had an explanation, and the facts also showed that it was only an error of judgment that resulted in the incident. In the case on hand, the accused has no case that there was any error of judgment on his part or that the incident happened due to reasons beyond his control. In the said case, the accused/the driver therein had an explanation, and the facts also showed that it was only an error of judgment that resulted in the incident. In the case on hand, the accused has no case that there was any error of judgment on his part or that the incident happened due to reasons beyond his control. He has no case that he had to swerve the vehicle abruptly to avoid hitting somebody/vehicle and in the process, he had hit the child in this case. On the other hand, his case during the cross-examination of material prosecution witnesses was that it was the car that was responsible for causing the incident. In his 313 statement to which I have already referred to, he gives quite a strange story which is quite unbelievable. 18. It is true that the prosecution witnesses had no prior acquaintance with the accused. It is also true that no Test Identification Parade (TIP) was conducted. The prosecution witnesses had identified the accused for the first time in the dock. But conduct of TIP is not mandatory in all cases. Here, the material prosecution witnesses have deposed that they clearly saw the accused getting down from lorry and running away. The fact that he was in the lorry and that he had gotten down from the lorry and taken to his heels, is admitted by the accused in his 313 statement though he gives a different explanation for his presence in the lorry. If the case of the accused that he was just a passenger in the lorry was true, then it was quite unnecessary for him to have taken to his heels on seeing the incident. Based on the materials on record, the trial court was justified in finding that the accused guilty of the offences alleged against him. I find no infirmity in the findings of the trial court calling for an interference by this Court. Hence the appeal is liable to be dismissed. In the result, the appeal is dismissed. Interlocutory applications, if any pending, shall stand closed.