Allowed

Gireesh Kumar S/O Anandan v. State of Kerala

Kerala HC9 Mar 2020Crl.Rev.Pet/1744/2004

Case brief

AI extract

What is this about?

This criminal revision petition challenges the conviction for rash and negligent driving causing death under Sections 279 and 304(A) IPC. The High Court found the prosecution evidence defective as it failed to examine a crucial witness (autorickshaw driver) involved in a preliminary collision. Consequently, the court held that the negligence of the accused was not proved beyond reasonable doubt, a

What did the court decide?

Revision allowed; conviction and sentence set aside; accused acquitted and directed to be set at liberty after cancelling bail bond.

Gireesh Kumar S/O Anandan Vs State of Kerala — Motor Accident Claims | Kerala HC (2020)

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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 N.ANIL KUMAR

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MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941

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Crl.Rev.Pet.No.1744 OF 2004(C)

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AGAINST THE JUDGMENT IN CRA 229/2000 DATED 21-03-2003 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOZHIKODE

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AGAINST THE JUDGMENT IN CC 111/1997 DATED 29-04-2000 OF CHIEF JUDICIAL MAGISTRATE, KOZHIKODE

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REVISION PETITIONER/APPELLANT/ACCUSED:

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GIREESH KUMAR, S/O ANANDAN, PUTHUKKUDI HOUSE, OLAVANNA AMSOM AND DESOM, KOZHIKODE.

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BY ADV. SRI.P.V.ANOOP

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RESPONDENT/RESPONDENT/COMPLAINANT:

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

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BY ADV.

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SR.PP M.S.BREEZE

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09.03.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.Rev.Pet.No.1744 OF 2004

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O R D E R

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The revision petitioner is the accused in

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C.C.No.111/1997 on the file of Chief Judicial Magistrate Court, Kozhikode, which arose from Crime No.1692/1996 of City Traffic Police Station, Kozhikode, for the offences punishable under Sections 279, 304(A) of Indian Penal Code.

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By judgment dated 29.04.2000, the learned Chief Judicial Magistrate, convicted and sentenced the accused to undergo rigorous imprisonment for one year and also to pay a fine of Rs.5,000/- and in default, to undergo simple imprisonment for a period of three months for the offence punishable under Section 304(A) of the IPC. No separate sentence was awarded for the offence punishable under Section 279 of the IPC. It was further ordered that the accused is disqualified to hold driving licence to drive heavy vehicles for a period of one year under Section 20 of the Motor Vehicles Act. Being

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aggrieved, the accused preferred Crl.A.No.299/2000 before the Sessions Court, Kozhikode. The learned Sessions Judge, made over the case to the Additional District and Sessions Court, Fast Track (Adhoc-II), Kozhikode, for hearing and disposal. By judgment dated 21.03.2003, the learned Additional Sessions Judge, dismissed the appeal confirming the conviction and sentence passed by the trial court. Challenging the aforesaid judgment, the accused is before this Court in this revision petition.

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The prosecution case in brief is as hereunder:on 11.12.1996, at about 9.00 a.m., the accused drove passenger bus bearing Reg.No.KLO 5974, in a rash and negligent manner so as to endanger human life along the Kallai-Kozhikode Public Road, from south to north and when it reached at Kallai weigh bridge, it hit against a Scooter rider namely Khader and he fell on the road after hitting the rear side of an autorickshaw. As a result of the accident, Khader succumbed to the injuries

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instantaneously.

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During the trial, prosecution examined PW1 to PW12 and Exts.P1 to P10 were marked on the side of

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prosecution. On closing the prosecution evidence, the accused was questioned under Section 313(1)(b) of Cr.P.C. His defence is one of total denial.

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PW6-Dr.P.Vijaya Kumar, the Medical Officer, Department of Forensic Medicine, Calicut, conducted postmortem on the body of the deceased-Khader on 11.12.1996 and issued Ext.P4-Postmortem Certificate, noting ten ante-mortem injuries on the body of the deceased. PW6 testified that, the deceased died of multiple injuries on head, chest and abdomen. Ext.P4, would further indicate that the deceased was ran over by a vehicle.

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PW1 is an eye witness to the occurrence. He is a lorry transport agent by profession. According to him, on 11.12.1996 at 9.00 a.m., when he was standing at

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the lorry parking area near Kallai bridge, he saw an autorickshaw, which came from south-north direction, suddenly stopped and a scooter which came just behind the autorickshaw, dashed against the autorickshaw and as a result of which the scooter rider fell on the road. PW2, who was one of the residents at Mooriyadu and was working as a lorry transport agent at Kallai, testified that on 11.12.1996 at 9.00 a.m., he had an occasion to witness the occurrence in front of the weigh bridge at Kallai. He also stated that, when a person crossed the road suddenly, an autorickshaw which came from the south-north direction was stopped abruptly and as a result of which the scooter, which came just behind the autorickshaw dashed against the autorickshaw and the scooter rider fell on the road. On going through the oral evidence of PWs 1 and 2, it is clear that just before the accident, a pedestrian crossed the road urgently. To avoid an accident, the autorickshaw, which came from south-north direction was stopped abruptly and as a

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result of which, the scooter which came just behind the autorickshaw, dashed against the autorickshaw. Immediately after the occurrence, PW1 lodged Ext.P1FIS before the Police. In Ext.P1-FIS, PW1 clearly stated that the accident had occurred when an autorickshaw, which came from south-north direction, was stopped suddenly and a scooter came just behind the autorickshaw dashed against the autorickshaw. One of the contentions taken by the learned counsel for the revision petitioner is that autorickshaw driver was solely responsible for the accident. According to the learned counsel for the revision petitioner, the Registration No. KED 6129 of the autorickshaw is clearly stated in Ext.P1FIS lodged by PW1. The learned Counsel for the revision petitioner contended that right from the very beginning, the Investigating Officer has been aware of the fact that autorickshaw bearing Reg.No. KED 6129 is involved in the accident.

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The trial court considered the oral evidence of

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PWs 1, 2, 7 and 9 and entered into a finding that the accused was the driver of the offending vehicle on the date of occurrence. The trial court further relied on the oral evidence of PWs 1 and 2 and entered into a finding that immediately after the scooter hit against the autorickshaw, the scooter rider fell on the road and on seeing the same, all the vehicles, which came behind the scooter, had been stopped abruptly. However, the accused, who was the driver of the passenger bus, overtook all the vehicles parked on the road margin and ran over the scooter rider. It is clear from Ext.P1-FIS, that the autorickshaw driver is one of the important witnesses in this case. However, he was not questioned by the Police. His statement was also not recorded. Going by the oral evidence of PWs 1 and 2, it is clear that at the time of accident, one of the pedestrians crossed the road suddenly. Immediately, the autorickshaw, which came from south-north direction, was stopped to avoid an accident. It is not known as to

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whether the autorickshaw was stopped abruptly after giving proper signal in accordance with rules. PWs 1 and 2 had not adduced any evidence before the trial court, in this regard. In case the autorickshaw driver had given proper signal before stopping the vehicle, it would have been possible for the scooter rider to avoid the accident. The scooter rider hit against the autorickshaw before falling on the ground. The conduct of the scooter rider indicates that either he was negligent or the autorickshaw driver was negligent just before the accident. On going through the evidence of PWs 1 and 2 and other witnesses, there is no positive evidence to prove the first part of the accident. The first part of the accident had been suppressed by the prosecution. Unless and until the autorickshaw driver was examined to prove that the accident had occurred as a result of rash and negligent driving of the passenger bus, it would not have been possible for the trial court to enter a correct finding touching the negligence on the part of the driver of the

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passenger bus. Contributory evidence on the part of the scooter driver or the autorickshaw driver is writ large from the evidence adduced in this case. The prosecution evidence is totally silent in this respect.

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In a case under Section 304A of the IPC, it is necessary on the part of the prosecution to prove that the passenger bus in the accident, while over taking the scooter ridden by the accused, hit against the rider and as a result, he had sustained injuries and succumbed to the injuries later. In the case at hand, it is clear from Ext.P1-FIS, and Ext.P2-Scene Mahazar that autorickshaw bearing Reg.No.KED 6129 was also involved in the accident. No explanation was offered as to why the driver of the autorickshaw bearing Reg.No.KED 6129 is not cited as a witness for the prosecution. When PWs 1 and 2 were cross examined before the trial court, it was brought out that the autorickshaw was also involved in the accident. Unless and until positive evidence is adduced to prove negligence, the benefit of doubt always

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goes to the accused. In a case where contributory negligence is taken as a defence, the burden is heavy on the part of prosecution to prove that the offending vehicle was solely responsible for causing the accident. In the absence of reliable evidence to prove negligence beyond reasonable shadow of doubt, the only course available before this Court is to extend benefit of doubt to the revision petitioner.

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This is the case where both the trial court as well as the appellate court analysed the evidence erroneously. Wrong appreciation of evidence is a ground for interference in revision. Having found that the trial court and appellate court, appreciated the evidence erroneously, the only course available before this Court is to set aside the judgment of the Trial Court as confirmed by the Appellate Court in revision.

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In the result the revision is allowed. The conviction and sentence imposed by the trial court as confirmed by

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the appellate court stands set aside. The revision petitioner/accused stands acquitted. Cancelling his bail bond, this Court directs that he be set at liberty.

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The criminal revision petition is allowed as above.

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Sd/-

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N.ANIL KUMAR JUDGE

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VPK

Gireesh Kumar S/O Anandan v. State of Kerala

Case brief

What is this about?

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Gireesh Kumar S/O Anandan v. State of Kerala

Case brief

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