Dismissed

State,Rep.by Public Prosecutor,H.C.,Ekm. v. Paramasivan,S/O.Pachiyappan,Chittur

Kerala HC10 Jan 2014CRL.A/1641/2003

Case brief

AI extract

What is this about?

In a criminal appeal, the High Court of Kerala affirmed the trial court's acquittal of an accused for offences under Sections 279 and 304A IPC, holding that the sole eyewitness provided conflicting evidence and the prosecution failed to prove negligence.

What did the court decide?

Appeal dismissed; order of acquittal of the respondent affirmed.

State,Rep.by Public Prosecutor,H.C.,Ekm. Vs… — Motor Accident Claims | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.K.MOHANAN

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FRIDAY, THE 10TH DAY OF JANUARY 2014/20TH POUSHA, 1935

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CRL.A.No. 1641 of 2003

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[AGAINST THE JUDGMENT IN CC 80/2000 of JUDICIAL FIRST CLASS MAGISTRATE COURT,CHITTUR DATED 17-09-2001]

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APPELLANT(S)/COMPLAINANT:

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------------------------STATE REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

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BY PUBLIC PROSECUTOR SMT.T.Y.LALIZA.

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RESPONDENT(S)/ACCUSED: ---------------------PARAMASIVAN, S/O.PACHIYAPPAN, ERUTHENPATHI, CHITTUR.

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BY ADV. SRI.U.BALAGANGADHARAN

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-01-2014,

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THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.A.No. 1641 of 2003

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Dated this the 10^th day of January,2014

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J U D G M E N T

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The State of Kerala, aggrieved by the judgment dated

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17.9.2011 in C.C.No.80 of 2000 of the court of the Judicial First Class

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Magistrate, Chittur, preferred this appeal as the trial court acquitted the accused, who faced the prosecution for the offences punishable under

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Sections 279 and 304A of I.P.C. at the instance of the State.

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The case of the prosecution is that on 10.9.1999, at about 7.30 a.m., the accused drove a TVS 50 motor cycle bearing Regn.No.TN 38-

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H 1167 in a rash and negligent manner so as to endanger human life through Eruthenpathi-Kozhinjampara public road at Kaikatti and thereby, caused the death of one Karthyayani by hitting her with the motor cycle. The said Karthyayani, who was walking through the eastern side of the road was knocked down by the impact of the hit and sustained serious head injuries and she succumbed to those injuries

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CRL.A.NO. 1641 of 2003

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later at the Medical College Hospital, Thrissur.

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On the above allegation, Crime No.202 of 1999 was registered in the Kozhinjampara Police Station and on completing the investigation thereon, a report is filed in the above trial court. Upon the appearance of the accused, he was supplied with the copies of the prosecution documents and thereafter, the particulars of the offences were read over and explained to the accused, but he denied the same and pleaded not guilty and thus, the trial was proceeded further during which from the side of the prosecution, Pws.1 to 10 were examined and Exts.P1 to P5 were marked. No evidence whatsoever is adduced

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from the side of the defence. The learned Magistrate, on conclusion of the trial, found that the prosecution has failed to prove the allegation against the accused and accordingly, he is found not guilty of the offences charged against him and consequently, he is acquitted under Section 255(1) of the Cr.P.C. for the offences punishable under Sections 279 and 304A of I.P.C. It is the above order of acquittal

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challenged in this appeal.

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As per the prosecution version, immediately after the incident, by which the deceased sustained injuries, she was removed to the Medical College Hospital at Thrissur where she had undergone the treatment and on the basis of the information furnished by PW1, who is none other than the grandson of the deceased, the crime was registered by PW9. The further investigation was undertaken by the S.I. Of Police, the Kozhinjampara Police Station, who were cited as Cws.21 and 22 in the charge sheet. It was CW22, who laid the charge finally. But the above witnesses are not examined. When PW1 was examined, he had deposed in terms of the prosecution allegation and during his examination, he identified Ext.P1 F.I.statement given by him before PW9. According to PW1, he is a witness to the incident and as per the version of PW1, the incident took place when the accused drove his motor cycle in a negligent manner particularly, waving his hands towards his friends, who were standing in front side

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CRL.A.NO. 1641 of 2003

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of the road near a teashop. As per the evidence given by PW1, the

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incident has taken place at Kaikatti, on the eastern side of Eruthenpathi-Kozhinjampara Public Road which lies in the north south direction and while the accused was proceeding from north to south in his motorcycle. It is the further case of PW1 that the motor bike driven by the accused hit against the deceased while she was crossing the road after having purchased the iddlies from the tea shop, which was situated on the western side of the road and at that time, PW1 was available in the teashop. According to PW1, the incident took place just after the deceased crossed the road and reached at the extreme eastern side of the tarred portion of the road. To prove the incident, besides PW1, the prosecution has examined PWs.2 to 5 and all these witnesses stated that none of them had seen the incident by which the motor cycle was driven by the accused and hit against the deceased. According to these witnesses, they have seen the lying position of the accused as well as the deceased on fall, and the motor

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bike after the exact incident. The deceased, after discharging from the

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Elite Hospital, was taken to the Government Hospital at Kozhinjampara wherein she died and PW6 the Superintendent of Government Hospital, Kozhinjampara conducted postmortem on the body of the deceased and he issued Ext.P2 Postmortem Certificate. As part of the investigation, PW10 prepared a scene mahazar of the place of occurrence to which PW7 is an attestor. PW8 was the attestor to Ext.P4 inquest report prepared in this case. As the occurrence witnesses except PW1 turned hostile, the learned Magistrate elaborately considered the deposition of PW1 and found that his evidence cannot be relied. Accordingly, the accused is acquitted.

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The learned Public Prosecutor vehemently submitted that PW1 is an eye witness to the entire incident, who gave a clear account about the incident, under which his grandmother died, as a result of the rash and negligent driving of the accused, but the trial court, without assigning any proper and valid reason, simply misbelieved

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him and the above approach of the court is incorrect and illegal. It is also the contention of the learned Public Prosecutor that in view of the evidence of PW6, the Doctor who conducted the postmortem, the death was due to accident occurred in the present case. Therefore, the learned Public Prosecutor submitted that the above erroneous finding and the order of acquittal are liable to be deferred with. On the other hand, the learned counsel appearing for the respondent submitted that the evidence of PW1 is wholly unreliable, because of the nature of the evidence given by him. The reason given by the learned Magistrate to disbelieve PW1 and to reject the prosecution case, according to the learned counsel, is very reasonable and legal and therefore, this Court will not be justified in interfering with such finding.

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I have carefully considered the arguments advanced by the

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the learned Public Prosecutor and learned counsel for the respondent and I have perused the evidence and materials on record.

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In the light of the rival contentions, evidence and materials,

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the question to be considered is whether the order of acquittal recorded by the trial court is correct and reasonable and whether the appellant has succeeded in making out a case to interfere with such finding and order of acquittal.

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As I indicated earlier, the specific case of the prosecution is that due to rash and negligent driving of the accused, the motor cycle, which was driven by him, hit against the deceased at about 7 a.m. on 10.9.1999, in front of the Panchayath Office at Kaikatti and on the eastern side of Eruthenpathi-Kozhinjampara Public Road, which is lying on the north-south direction. Out of the five witnesses examined, to prove the incident, PW1 alone supported the case of the prosecution and gave evidence in the court. It is the above evidence of PW1 subjected to judicial scrutiny by the learned Magistrate of the trial court. Thus, on perusal of the deposition of PW1, it can be seen that his versions are not sufficient to inspire the confidence of the court. The deceased, at the time of the incident, was at the age of 70.

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From the version of PW1, it can be seen that himself and the deceased and the entire family members were residing together and on the date of the occurrence, the incident had taken place while he was sitting in the tea shop from where the deceased purchased iddlies and while crossing the above road. The above version of PW1 itself is not believable. This Court failed to understand that when PW1 was available, while the deceased, who was aged 70, came to purchase iddlies from the shop. According to PW1, the incident had occurred due to the negligence of the accused since at the place of occurrence, while he was riding the bike, he had waved his hand on seeing his friends, who were standing on the road side and it was the root cause for the incident. During the cross-examination of PW1, the accused has succeeded in bringing the substantial improvement made by PW1.

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Thus, in the deposition of PW1, he had stated as follows:-

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“ഞ�ന�� CW2-വ�� ച�യകടയ�ല ച�യ ക�ട�ച ശ�ഷ� സ�സ�ര�ച� കക�ണ�ര�ക�കയ�യ�ര�ന� എന� ഞ�ന ശ �ല"സ�ല റഞ�ട&ശണ� എന� എന�ക�

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ഓര)യ�ല*. പ ത� വ�ത� ന�ന�ര�ന ആശ0�ട കക ക�ണ�ച� സ�സ�ര�ചക�ര4വ�� ഞ�ന ശ �ല"സ�ല റഞ�ട&ണ�. എഴ�ത� ക�ണ�ന�കലങ�ല . എന�കക�ന�� റയ�ന�ല ട�ഞ�റ� ന�ന�� ക�ഴശക�ട� ശറ�ഡ ശപക�സ� കചയ: നടന�ശ �ക�ശ;�ഴ�ണ സ�ഭവ� ഉണ�യ: എന� ഞ�ന ശ �ല"സ�ല റഞ�ട&ണ�.

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Besides the above improvement, the defence has also succeeded in making out a contradiction with respect to his 161 statement. Thus, it was brought out as follows:-

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'ശറ�ഡ�കA ക�ഴശക ഓരത�കBട� നടന� ശ �ക�ശ;�ള സ�ഭവ� ഉണ�യ� എന� ഞ�ന ശ �ല"സ�ല റഞ�ട�ല*.'

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So the sole evidence available on record are not free from doubt,

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infirmities and contradictions and the same is not trustworthy and rather the same creates doubt as to how and when the incident has taken place. During the deposition of PW1, he deposed before the court that the incident had taken place when the deceased was crossing the road, whereas his version before the Police while giving 161 statement is that the same had taken place while the deceased was

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walking along the side of the road. The above conflicting version of PW1 is sufficient to show that the trial court is justified in its finding and disbelieving PW1. Besides the above, it is brought on record that before giving Ext.P1 F.I.statement, the Police had approached the brothers of PW1 and other relatives and they were questioned and therefore, no legal sanctity can be attached to Ext.P1 and the consequent registration of Ext.P5 F.I.R. The said facts further probabilise the case of the accused that the present crime is registered as he was not amenable to the demand for huge amount, claimed towards the compensation and the case was filed only to support their claim for compensation.

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In the light of the above discussion and the evidence and materials on record, it is crystal clear that though the deceased in this case sustained injuries at about 7.30 a.m. on 10.9.1999 at the alleged place of occurrence connected with the motor accident, the prosecution has miserably failed to establish beyond reasonable doubt

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that the incident had occurred due to the rash and negligent driving of the accused and therefore, it cannot be said that the prosecution has succeeded in establishing the ingredients of the offences under Sections 279 and 304 A of I.P.C. Thus, going by the judgment of the trial court, it can be seen that the trial court, after due consideration of the evidence and its proper appreciation, and by assigning proper and legal reasons, refused to accept the case of the prosecution. In view of the facts and circumstances mentioned above, according to me, the above finding cannot be treated as perverse or illegal so as to interfere with the order of acquittal while exercising the appellate jurisdiction by this Court.

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In the result, I find no merit in this appeal and accordingly, the same is dismissed.

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V.K.MOHANAN , Judge .

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MBS/

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V.K.MOHANAN, J.

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CRL.A.No. 1641 OF 2003

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J U D G M E N T

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Dated:10.1.2014

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State,Rep.by Public Prosecutor,H.C.,Ekm. v. Paramasivan,S/O.Pachiyappan,Chittur

Case brief

What is this about?

What did the court decide?

State,Rep.by Public Prosecutor,H.C.,Ekm. v. Paramasivan,S/O.Pachiyappan,Chittur

Case brief

What is this about?

What did the court decide?

What the court decided

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