Partly allowed

Mohammed Ismail v. the Sub Inspector of Police

Kerala HC15 Jul 2024Crl.Rev.Pet/1513/2016

Case brief

AI extract

What is this about?

Driver convicted under Sections 279 and 304A IPC for a fatal road accident challenged concurrent findings in revision. Cause of death was held unproved as neither the postmortem doctor nor certificate was produced; acquittal followed under Section 304A while conviction under Section 279 IPC stood.

What did the court decide?

Conviction and sentence under Sec.304(A) IPC set aside; accused acquitted under Sec.386(b)(1) CrPC; conviction under Sec.279 IPC confirmed.

Mohammed Ismail Vs the Sub Inspector of Police — Motor Accident Claims | Kerala HC (2024)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR

¶4

MONDAY, THE 15TH DAY OF JULY 2024 / 24TH ASHADHA, 1946

¶5

CRL.REV.PET NO. 1513 OF 2016

¶6

CRIME NO.166/2009 OF Kallambalam Police Station,

¶7

Thiruvananthapuram

¶8

AGAINST THE ORDER/JUDGMENT DATED 18.08.2016 IN CRA NO.35 OF 2013
OF I ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM ARISING OUT OF
THE ORDER/JUDGMENT DATED 28.12.2012 IN CC NO.545 OF 2009 OF
JUDICIAL MAGISTRATE OF FIRST CLASS ,VARKALA

¶9

REVISION PETITIONER:

¶10

MOHAMMED ISMAIL

¶11

AGED 59 YEARS, S/O.ABDUL RASSAQ,KINATTUVILAKATHU VEEDU,
ALAMCODE PO,MAVARAKKALDESOM, ALAMCODE
VILLAGE,THIRUVANANTHAPURAM (DIST).
BY ADVS.

¶12

SRI.G.RADHAKRISHNAN
SRI.R.ANILKUMAR

¶13

RESPONDENTS:

¶14

1 THE SUB INSPECTOR OF POLICE KALLAMBALAM POLICE STATION, PIN-695 605.

¶15

2 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA.

¶16

Smt.Maya. M. N. , P.P.

¶17

THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 15.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶18

Crl.R.P.No.1513 of 2016

¶19

¶20

ORDER

¶21

This Revision Petition is filed by the appellant in Crl.Appeal No.35/2013 on the file of the Additional Sessions Judge–I, Thiruvananthapuram against the Judgment dated 18.08.2016 confirming the conviction and sentence passed by the Judicial First Class Magistrate – I, Varkala, under Section 279 and 304 A IPC. The Prosecution case is that on 22.04.2009, at 7.15 pm, the Revision Petitioner being the driver of the car KL-2/X-7174 has driven the same in a rash and negligent manner so as to endanger a human life through the NH Road, hit down one Janardhana Kurup, aged 80 years causing severe injuries and while he was under treatment, he succumbed to the injuries on 13.05.2009 at 6.45 pm.

¶22

The accused was charged with the offence under Section 279, 337, 338 and 304(A) IPC. On the basis of the evidence adduced by the Prosecution and the oral testimonies of PWs 1 to 8, and the documents marked as Exts.P1 to P10, the trial court found the Revision Petitioner guilty, convicted and sentenced him under Sections 379, 337, 338 and 304A IPC. In appeal, the First Appellate Court confirmed the conviction and sentence under Section 279 and 304A of the IPC alone. The punishment imposed under Section 279 IPC is fine of Rs.1000/- and in

¶23

Crl.R.P.No.1513 of 2016

¶24

¶25

default, to undergo simple imprisonment for one month. Under Sec. 304(A) IPC, he was sentenced to undergo simple imprisonment for 6 months. Aggrieved by the above judgment of the First Appellate Court, this Revision was filed. Now the point that arise for consideration is the following.

¶26

“Whether the conviction of the Revision Petitioner as confirmed by the First Appellate Court is liable to be interfered with?”

¶27

Heard the learned counsel for the appellant Sri.G.Radhakrishnan and the learned Public Prosecutor, Smt.Maya. It is argued by the learned counsel for the Revision Petitioner that the Prosecution has miserably failed to prove the cause of death of the victim and as such, the offence under Section 304A was not proved in this case. Further, according to him, the solitary testimony of PW3 is not enough to prove the offence under Sec.279 IPC also. On the other hand, the learned Public Prosecutor would argue that the Prosecution has succeeded in proving offence under Sec.279 and 304(A) IPC.

¶28

Upon going through the evidence of the Prosecution witnesses, it appears that the Doctor who conducted the postmortem examination of the body of deceased was not examined and the

¶29

Crl.R.P.No.1513 of 2016

¶30

¶31

postmortem certificate was not tendered or marked in evidence. Even then, the trial court and the First Appellate Court found that the Prosecution has succeeded in proving the cause of death through the evidence of PWs 1 to 3. The reasoning given by them is that the evidence of PWs 1 to 3 to the effect that the deceased Janardhana Kurup died due to the injuries sustained in the accident, was not cross-examined by the appellant. It is true that PWs 2 & 3 are occurrence witnesses and PW1 is the first informant. PW3 deposed that he has seen the incident in which Janardhana Kurup sustains sever injuries on 22.04.2009. Even as per the Prosecution case, Janardhana Kurup died while under treatment on 13.05.2019, ie, 21 days after the incident.

¶32

The learned counsel for the Revision Petitioner relying upon the decision of the Madras High Court in K.K.Mani Vs. The State reported in KHC 2009 0 5895, would argue that even in a case where the postmortem certificate was marked and the doctor is not examined, it is not sufficient to prove the cause of death.

¶33

It is true that in order to attract the offence under Sec.304(A) IPC, the Prosecution has to prove that the cause of death of the victim was on account of the injuries sustained in a rash and negligent act done by

¶34

Crl.R.P.No.1513 of 2016

¶35

¶36

the accused. In the instant case, since the Doctor was not examined and the Post-mortem certificate was not true, the cause of death of Janardhana Kurup could not be proved. The finding of the trial court as well as the 1^st Appellate Court that since the Revision Petitioner has not cross examined PWs 1 to 3 regarding the cause of death of the deceased, the cause of death stands proved, is not a correct finding. In the above circumstance, I hold that in this case, the Prosecution has miserably failed in proving the cause of death of Janardhana Kurup especially when he is an old man of 80 years at the time of the accident and death occurred 21 days after the date of accident. In other words, it is to be held that the Prosecution has not succeeded in proving the offence under Sec.304(A) IPC beyond reasonable doubt.

¶37

As per Ext.P3 Scene Mahazar, the place of occurrence is 60 cms west of the western tar end. PW7, who prepared the scene mahazar and PW5, who is an attester to the scene mahazar proved the same. During the cross examination of PW7, not even a suggestion was put, challenging the scene of occurrence as noticed by PW7 in Ext.P3 scene mahazar. In this case, the Revision Petitioner has not disputed his identity at the time of evidence. PW3, in clear terms deposed that Janardhana Kurup sustained

¶38

Crl.R.P.No.1513 of 2016

¶39

¶40

injuries in an accident involving the car KL-2/X-7174. Therefore, it is evident that Janardhana Kurup sustained injuries when he was hit down by the Innova car driven by the accused. Since the place of occurrence is 60 cms west of the western tar end, the accident speaks itself. Unless the Revision Petitioner had not driven the car involved in the incident in a rash and negligent manner so as to endanger human life, the same will not reach 60 cms west of the western tar end, which is a part of the foot path and do not have resulted in the accident. Referring to the available evidence, the Prosecution has succeeded in proving the offence under Sec.279 IPC and as such the conviction and sentence under Sec.279 IPC is liable to be confirmed and that under Sections 304(A) IPC is liable to be set aside.

¶41

The punishment given under Sec.279 IPC is fine of Rs.1000/- in default to undergo simple imprisonment for one month. In the result, this Revision Petition is allowed in part as follows:

¶42

The conviction and sentence under Sec.304(A) IPC is set aside and the Revision Petitioner is found not guilty of the aforesaid offence and he is acquitted under Sec.386(b)(1) of Cr.PC. However, the conviction and sentence passed by the Trial Court and confirmed by the First Appellate Court stands confirmed and the Revision Petition is dismissed to that extent,

¶43

Crl.R.P.No.1513 of 2016

¶44

¶45

as against 304(A) acquittal under Sec.386(b)(1) and as against Sec.279 are confirmed.

sd/-

C.PRATHEEP KUMAR

JUDGE

Nsd

Mohammed Ismail v. the Sub Inspector of Police

Case brief

What is this about?

What did the court decide?

Mohammed Ismail v. the Sub Inspector of Police

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

K.a.Balabhadran Vs a.Ajidas

Mulanthala Gopalakrishnan Nair Vs Kodiyeri Meenakshikutty Amma,(Died) Legal Representatives Recorded

Narayanan Vs Sankaran

Abdurahiman Vs Asya

Vythala Amina Umma, Vs Keezhattil Kandanthodi Asya

Praneesh Vs P I Mohanan