Partly allowed

Fijas v. State of Kerala

Kerala HC19 Nov 2021CRL.A/1024/2018

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal in part, acquitting the appellant of the charge under Section 304A IPC as the death resulted from pneumonia not directly caused by injuries. Convictions for Sections 279 IPC, 337 IPC, and Motor Vehicles Act were upheld with a modified sentence.

What did the court decide?

Acquitted of Section 304A IPC; Convictions for Sections 279 IPC, 337 IPC, and Motor Vehicles Act confirmed; Sentence for Motor Vehicles Act offence modified to a fine.

Fijas Vs State of Kerala — Motor Accident Claims | Kerala HC (2021)

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Crl.A.No.1024/2018

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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 ZIYAD RAHMAN A.A.

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FRIDAY, THE 19^TH DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943

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CRL.A NO. 1024 OF 2018

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AGAINST THE ORDER/JUDGMENT IN SC 1213/2015 OF ADDITIONAL DISTRICT COURT (SPECIAL COURT FOR TRIAL FOR MARADU

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CASES)KOZHIKODE, KOZHIKODE

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CP 6/2015 OF SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS FOR

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TRIAL OF MARADU CASES, KOZHIKODE, KOZHIKODE

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APPELLANT/ACCUSED:

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FIJAS, AGED 25 YEARS, S/O.UMMER KOYA, AGED 25 YEARS, PARAKOTTEPARAMBA HOUSE, P.O, PANTHEERANKAVU, PERUMANNA, KOZHOKODE.

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BY ADVS. RAMKUMAR P.K. ANITHA MENON A

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RESPONDENT/STATE:

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1 STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, CITY TRAFFIC POLICE STATION KOZHIKODE.

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BY SRI.SUDHEER GOPALAKRISHNAN, PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

Crl.A.No.1024/2018

JUDGMENT

The appellant is the accused in S.C.No.1213 of 2015 on the file of the Special Additional Sessions Judge (Marad Cases), Kozhikode. The petitioner stands convicted for the offences punishable under Sections 304A, 279 and 337 IPC read with Sections 3(1) and 181 of the MV Act. As per the sentence imposed, the appellant was awarded with simple imprisonment for one year and to pay a fine of Rs.10,000/- (Rupees ten thousand only), with default sentence of simple imprisonment for two months for the offences punishable under Section 304(A) IPC, a fine of Rs.1,000/- (Rupees one thousand only) with default sentence of simple imprisonment for one month for the offences punishable under Section 279 IPC, a fine of Rs.500/- with default sentence of simple imprisonment for one month for offences punishable under Section 337 IPC and simple imprisonment for one month for the offence punishable under Section 3(1) read with Section 181 of the Motor Vehicles Act (MV Act).

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The case of the prosecution is that on 22.01.2015 at about 6.15 pm the appellant who had no driving licence rode a motor cycle bearing Registration No.KL-11-AC-7967 through Pottamal-Palazhi public road with two pillion riders in a rash and negligent manner at high speed and when it reached at the public road at Kaithapadam, dashed against a scooter bearing registration No.KL-11-Z-4572 ridden by the deceased Bharathan with his two grand children as pillion riders. The rider of the scooter succumbed to the injuries on 27.01.2015 while undergoing treatment at the hospital. On the basis of the same, Crime No.208/2015 was registered by the City Traffic Police Station, Kozhikode and after completing the investigation, final report was submitted.

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In order to prove the prosecution case, they have examined PWs 1 to 19 and marked Exts.P1 to P18. After completing the investigation, the accused was examined under Section 313 Cr.P.C. He denied his complicity in the crime and claimed innocence. After examining the materials, the Sessions

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Crl.A.No.1024/2018 4

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Court found the petitioner guilty of the offence mentioned above and accordingly the sentence was imposed upon him.

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Heard Sri.P.K.Ramkumar, learned counsel for the petitioner and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor.

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The learned counsel for the appellant contends that the prosecution failed in establishing the offence alleged against the appellant. The learned counsel pointed out that, none of the witnesses, PWs 1 to 3, who are the eye witnesses, have properly identified the accused. It was also contended that the medical evidence adduced by the prosecution in the form of Ext.P9 postmortem report as well as oral evidence of PW14 and PW17 would indicate that the death of the deceased was not due to the injuries sustained to him in the accident. He was a person aged 72 years and the aforesaid documents would reveal that he died due to pneumonia while undergoing treatment in the hospital. In such circumstances, he seeks to set aside the conviction and sentence.

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On the other hand the learned Public Prosecutor would contend that the prosecution was able to establish the guilt of the accused. Identity of the appellant was clearly proved by the evidence of PWs 1 to 3 is his contention. In such circumstances, he prays for dismissal of the appeal.

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First contention put forward by the learned counsel for the appellant is with regard to the identity of the accused. The learned counsel for the petitioner points out that, PW1 though stated during the chief examination that it was the appellant who was riding a motor cycle at the relevant time, during the cross examination he has stated that he could not identify the accused while he was riding. He could identify him only after the incident has occurred. It is the case of the appellant that, unless the appellant/accused is identified while riding the vehicle, the identification cannot be treated as proper for finding him guilty. However, I am not inclined to accept the same because, under normal circumstances, no person would give any attention to a motor cycle which is passing through the road. Only when an

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Crl.A.No.1024/2018 6

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incident which is unexpectable in nature occurs, such person will

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give attention to the same. In this case that is what happened.

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With regard to the evidence of PW2, it was pointed out by the learned counsel for the appellant that, statement of the said witness is to the effect that, he could witness the incident only from behind. Hence it was contended that it was not possible for him to identify the accused. However, this contention also cannot be accepted because he had specifically stated that the vehicle which was being ridden by the accused has overtaken him and after proceeding further the accident occurred. It is pertinent to note that, PW2 was riding a motor cycle and he was just behind the motor cycle that was being ridden by the appellant, when the accident occurred. Considering the above aspect, it is not possible to accept the contention put forward by the learned counsel as such. The evidence of PW2 is convincing and I do not find any reason for discarding the same.

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The objection which is seen raised by the learned counsel for the appellant with regard to the evidence of PW3 is that, as per the seating position of her on the scooter, it was not

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possible for her to identify the rider of the motor cycle. PW3 is the grand daughter of the deceased who was traveling on the scooter along with the deceased. According to her, she was sitting in between the deceased and her elder sister on the scooter. The contention of the learned counsel for the petitioner is that, being the position of the said witness between two persons on the scooter, it was not possible for her to witness the same. However, evidence of PW3 would reveal that she had clearly narrated the incident and identified the appellant as well. It was also stated by her that, immediately before the accident she alerted the deceased as to the motor bike which was being ridden by the accused. In such circumstances, that contention is also not acceptable. Identity of the appellant is clearly proved through evidence of PW1 to PW3 which are consistent and trustworthy. Therefore, the involvement of the appellant is clearly proved.

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Another contention put forward by the learned counsel for the appellant is relating to the cause of death. Ext.P9 is the postmortem certificate which was proved by PW14. He has clearly described the nature of injuries, which reads as follows:

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Crl.A.No.1024/2018

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“B.ANTEMORTEM INJURIES:

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Contusion 2x1x0.5 cm was present at left side of neck, below ankle of jaw and 9 cm outer to midline.

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Abrasion 2x2 cm, scab adherent was present over top of right shoulder, 10 cm outer to midline.

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There was a saturated wound ‘J’ shaped, 9cm long was present at inner aspect of front of left foot. There was four incised, penetrating wounds (1x0.5x1cm each) were present at front of leg (for external fixation). There was a satured incision was present at outer aspect of right lower leg. There was an abrasion 2x2 cm just above the satured wound. There was comminuted fracture at mid 1/3^rd tibia.”

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From the nature of injuries, it can be seen that the injuries were sustained by the deceased on his lower limb. Under normal circumstances, the aforesaid injuries cannot cause death of a normal person. The aforesaid fact has been clarified by PW14 Doctor, in his evidence. He has specifically stated that the fracture at tibia is not fatal. It was further stated by them that the death was caused by pneumonia. Evidence of PW14 stands corroborated by PW17 the doctor who attended the deceased in the casualty of the hospital when he was brought in immediately after the accident. According to PW17 also, the injuries sustained

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to the deceased was not sufficient in the ordinary course of nature to cause the death. In Ext.P9 postmortem certificate the cause of death is shown as death due to complications of injuries sustained to lower limp. Thus from an over all examination of the above materials, it is evident that the death of the deceased was not the direct consequence of the injuries sustained in the accident. The deceased was a person aged 72 years. The medical evidence clearly indicates that the injuries which were not fatal under normal course got complicated due to his advanced age and health conditions. In such circumstances, it can be concluded that the death of the deceased was not due to the direct consequence of the injuries sustained in the accident. In order to attract the offence under Section 304A of IPC, the death must have been caused on account of rash and negligent act of the accused. It is evident from the materials that, consequent to the negligent act of the appellant, injuries were sustained to the deceased on his lower limb. The medical evidence indicates that those injuries were not fatal in the ordinary course and the death of was due to pneumonia. In such circumstances, it can be safely

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concluded that the death was due to other complications which were subsequently developed. In such circumstances, I am of the view that offence under Section 304A is not attracted in the facts and circumstances of the case.

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With regard to the other offences alleged, there are ample evidence that, it was the appellant who was riding the motor cycle at the relevant time and the incident occurred due to the rash and negligent riding of the motor cycle by him. The aforesaid aspect is evident from the depositions of PW1 to 3. In such circumstances, the offence punishable under Sections 279, 337 of IPC and Section 3(1) read with Section 181 of MV Act are attracted and the appellant is found guilty for the aforesaid offences. However, I find the appellant not guilty for the offence punishable under Section 304A.

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Next aspect is with regard to the sentence imposed. I find the sentence imposed under Section 279 and 337 IPC by the Sessions Court are reasonable and I confirm the same. However, with regard to the offences punishable under Section 3(1) read with Section 181 of the MV Act, the Sessions Court sentenced him

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Crl.A.No.1024/2018

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to undergo simple imprisonment for one month, which appears to the be on higher side, in the facts of the case. Accordingly, I modify the aforesaid sentence by imposing a fine of Rs.500/(Rupees five hundred only) with a default sentence of simple imprisonment for one month, for the offence under Section 3(1) read with Section 181 of the MV Act.

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This criminal appeal is thus allowed in part, and the judgment of conviction and sentence passed by Special Additional Sessions Judge (Marad Cases), Kozhikode in S.C.No.1213 of 2015 stand modified in the manner as follows:

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(i) The appellant is found not guilty under Section 304A of IPC.

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(ii) Conviction of the appellant under Section 279 and 379 IPC and sentence imposed thereon are confirmed.

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(iii) Conviction of the appellant under Section 3(1) read with Section 81 of Motor Vehicles Act is confirmed. However, the sentence for the said offence is modified as fine of Rs.500/- (Rupees five hundred only) with a default sentence of simple imprisonment for one month.

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Sd/- ZIYAD RAHMAN A.A. JUDGE

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DG/19.11.21

Fijas v. State of Kerala

Case brief

What is this about?

What did the court decide?

Fijas v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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