Antony Joseph vs State Of Kerala
2021 Latest Caselaw 11293 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                 THE HONOURABLE MR. JUSTICE K.HARIPAL

    THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

                         CRL.A.No.433 OF 2011

 AGAINST THE JUDGMENT IN SC 409/2007 OF ADDITIONAL SESSIONS COURT
                      (ADHOC)-II, ERNAKULAM


APPELLANT/ACCUSED:

             ANTONY JOSEPH
             AGED 33 YEARS, S/O.JOSEPH, EZHUTHIL VEEDU,
             PEZHUMKAVALA BHAGAM, KATTAPPANA VILLAGE, UDUMBANCHOLA
             TALUK.

             BY ADV. SRI.S.DILEEP (KALLAR)

RESPONDENT/COMPLAINANT/STATE:

             STATE OF KERALA
             BY CIRCLE INSPECTOR OF POLICE, KUNNATHUNADU, REP. BY
             THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
             ERNAKULAM.


OTHER PRESENT:

             SR.PP - SRI. M.S.BREEZ

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-03-2021,
THE COURT ON 08-04-2021 DELIVERED THE FOLLOWING:
 Crl.A.433/11                        :2:




                           JUDGMENT

This is an appeal preferred under Section 374 of the Criminal

Procedure Code, hereinafter referred to as the Cr.P.C., by the

accused in SC No.409/2007 of the Additional Sessions Court (Ad

hoc - II), Ernakulam. That case was originated on the final report

laid by the Circle Inspector, Kunnathunadu in Crime 125/2006 of

Thadiyittaparambu police station.

2. The summary of the prosecution allegation is that on

18.11.2006 at about 4.30 a.m., the accused/appellant drove a stage

carriage with registration No.KL-2/U-2454, in a rash and negligent

manner through Aluva - Perumbavoor road, from east to west, due

to the said act, near MES junction at South Vazhakkulam kara in

Vazhakkulam village, the bus hit against a jeep, KL-I-8224, which

proceeded in the opposite direction, and in the impact of the

incident, four passengers travelled in the jeep died and other co-

passengers sustained serious injuries. The crime was registered on

the basis of the first information statement given by Suhara, one of

the injured who was travelling in the jeep. On conclusion of Crl.A.433/11 :3:

investigation, the charge sheet was laid before the Judicial First

Class Magistrate Court, Perumbavoor alleging offence punishable

under Sections 304 and 308 IPC. The Magistrate who took

cognizance of the offence, after completing the procedural

formalities, committed the case to the Court of Session, from where

it was made over to the trial court.

3. After hearing counsel on both sides and perusing the

records, the learned Judge framed charge, read over and explained to

the appellant, to which he pleaded not guilty. He is on bail. He was

defended by a counsel of his choice.

4. Sixteen witnesses, PWs 1 to 16, were examined on the

side of the prosecution. Exts.P1 to P30 were also marked. After

closing prosecution evidence, when examined under Section 313

Cr.P.C., the appellant denied the incriminating evidence spoken

against him and reiterated his innocence. As this was not a fit case

for acquittal under Section 232 Cr.P.C., the learned Additional

Sessions Judge called the appellant to adduce evidence in defence, if

any. But no evidence was adduced.

5. At the fag end of the proceedings, the learned Additional Crl.A.433/11 :4:

Sessions Judge altered the court charge to one under Section 304A

IPC; when the charge was again read over and explained also, the

appellant pleaded not guilty. The counsel on both sides endorsed

that they do not want to examine the witnesses further, after the

alteration of the charge. After hearing both sides, by the impugned

judgment, the learned Judge found the appellant guilty of offence

under Section 304A IPC and convicted him thereunder and

sentenced to undergo rigorous imprisonment for two years and to

pay a fine of Rs.10,000/-, in default to undergo simple imprisonment

for three months. He was also found entitled to get set off under

Section 428 Cr.P.C. That finding of guilt and sentence is under

challenge in this appeal.

6. The learned counsel for the appellant vehemently

challenged the finding of the trial court. According to him, rash and

culpable negligence on the part of the appellant as a driver could not

be proved by the prosecution. PWs 1 to 4 were the eye witnesses to

the occurrence of which PWs 1 to 3 were the injured passengers of

the jeep. PW4 turned hostile to the prosecution whereas the

testimony of PWs 1 to 3, who attempted to support the prosecution Crl.A.433/11 :5:

case, could be shaken in cross-examination. According to him, rash

and negligent driving depends on the manner of driving. PWs 1 and

3 have stated that they did not see the bus prior to the incident,

whereas PW2 has spoken only about the negligence of the driver of

the bus; he has not spoken anything about the speed of the bus.

Referring to the decision in Mrs.Shakila Khader etc. v. Nausher

Gama and another (AIR 1975 SC 1324), he said that speed is not

the only criterion to speak about rashness. He also urged that the

scene mahazar would indicate that the jeep was on the wrong side; it

was overloaded with twelve passengers inside and therefore, the

incident had occurred due to the negligence on the part of the driver

of the jeep.

7. On the other hand, the learned Senior Public Prosecutor

defended the judgment of the trial court.

8. PW1 Santha was a passenger in the jeep. According to

her, the incident had happened on 18.11.2006. After attending

pineapple farming operations, they were returning to Perumbavoor

in the jeep which was driven by Radhakrishnan, PW3. She was

travelling at the rear seat of the jeep; at that time a bus came in the Crl.A.433/11 :6:

opposite direction from Perumbavoor in a rash and negligent manner

and hit on the jeep; it was a turning and four of her co-passengers

died in the incident and others sustained injuries. There were twelve

passengers in the jeep. She identified the accused as the driver of

the offending bus. According to her, the bus had hit on the right

front side of the jeep; by the time she saw the bus, it had hit on the

jeep. As it was a turning, she did not see the bus approaching from

the opposite direction, before the incident.

9. PW2 Suhara is the first informant who proved the

statement marked as Ext.P1. According to her, the incident had

occurred due to the negligence of the driver of the bus. She also

testified that the incident had happened at the turning, that she did

not see the bus approaching from the opposite direction. PW3

Radhakrishnan was the driver of the fateful jeep. According to him,

after negotiating the MES turning, when he was ascending the road,

the bus came from the opposite direction in an excessive speed and

hit on the jeep. The incident had occurred due to the rash and

negligent driving of the accused. In the incident, four passengers

died and the right arm of his younger brother was chopped off. He Crl.A.433/11 :7:

also sustained injuries. According to him, the incident happened

after he had passed the turning; it was drizzling at the time of the

incident.

10. PW4 independent occurrence witness, who was an

onlooker, turned hostile to the prosecution and was cross-examined

by the Prosecutor. The other witnesses do not have material roles

for the proof of the charge. They are the owner of the vehicle, the

medical officers who issued wound certificate and who conducted

autopsy of the body of the deceased, the Village Officer who attested

the scene mahazar, the Sub Inspector who registered the crime and

two investigating officers.

11. The learned counsel for the appellant was harping on the

statements given at the time of cross-examination of PWs 1 and 3 to

say that their evidence cannot be relied upon to justify the

conviction arrived at by the trial court. But for reasons more than

one, such an argument cannot be accepted. Firstly, in my

assessment, the oral testimony of PWs 1 and 3 is not obliterated or

shaken in cross-examination. Of course, PW1 has stated that she

had not seen the offending bus prior to the incident. It is also Crl.A.433/11 :8:

probable that a person who sits on the rear seat of the jeep might not

have noticed the approaching vehicle from the opposite direction,

much prior to the incident. But the testimony of PW3, the driver of

the jeep, stands unshaken in cross-examination. He has stated in

unambiguous terms that the bus had come in excessive speed and

had attributed rashness and negligence on the part of the driver as

the cause of the mishap. Faint attempts were made to say that the

incident had happened at a curve. PW3 might not have seen the

approaching bus since it was a curve. But, according to him, the

incident had happened after he had negotiated the curve.

12. Secondly, even the defence has no case that PW3 the

driver of the jeep was either rash or negligent and the incident had

happened due to any act on his part. The place of occurrence was

highlighted by the learned counsel, having regard to the Ext.P19

scene mahazar and Ext.P13 site plan, that the jeep was on the wrong

side. Similarly, it was pointed out that the jeep was overloaded with

twelve passengers, and that precisely was the reason for the incident.

But such a plea has not been taken at the time of trial. Moreover, if

at all we go to the extreme extent to assume that there was Crl.A.433/11 :9:

contributory negligence on the part of PW3, that is not a defence for

the appellant/accused.

13. The oral testimony of PWs 1 and 3, especially that of

PW3, has to be assessed vis-a-vis the impact of the occurrence. In

the incident, four passengers, who were travelling in the jeep on the

rear seat, lost their lives. Death of one of the ladies, as per the

Ext.P1 first information statement, was instantaneous and three

others had died on their way to hospital. The body of the jeep was

detached in the impact of the hitting. Similarly, all the passengers

who travelled in the jeep, except one had sustained grievous hurt;

one of them lost his hand below the elbow. These are matters for

inference to be drawn by the court and attributable only to the speed

of the bus. As rightly observed by the learned Additional Sessions

Judge, if the bus was moving in a normal speed, the impact would

have been minimal, even if the driver of the jeep had gone astray.

14. The learned counsel took strain to say that, basing on

Ext.P19 scene mahazar the incident had happened on the wrong side

of the jeep. The scene mahazar indicates that the road had a width

of 8.9 metres and the incident had happened 2.57 metres east from Crl.A.433/11 :10:

the western tar end. In this connection, one aspect requires to be

highlighted here. Going by the charge sheet, the incident had

happened 2.57 metres south from the northern tar end. It does not

go in conformity with Ext.P19 scene mahazar. Whatever it may be,

even assuming that the incident had happened on the wrong side of

the jeep, as noticed earlier, had the driver of the bus been moving in

a moderate speed, such an impact would not have resulted.

15. It has also come out that the road has a straight vision of

100-110 metres at the place of occurrence from either side. It is not

a sharp curve which prevented proper vision for drivers for viewing

each other from either side, in advance. Therefore, the submission of

the learned counsel that due to the geographical position and

topography of the road, the driver of the bus might not have seen the

jeep before approaching the curve cannot stand judicial scrutiny.

Ext.P13 site plan also rejects such a proposition. PW3 has stated

that the incident had happened after his vehicle had passed the

curve. This statement has not been rebutted. In other words, the

appellant, as the driver, had clear vision to see the approaching

vehicle from the opposite direction. The defence could not make out Crl.A.433/11 :11:

valid reasons to eschew the testimony of PWs 1 and 3, especially

that of PW3; for the mere reason that they were passenger and driver

respectively of the subject jeep, in the absence of overwhelming

reasons, their evidence cannot be underestimated. As rightly noticed

by the learned Additional Sessions Judge, the circumstances brought

out through the oral evidence of these witnesses cannot be ignored.

16. Even though the identity of the driver of the bus was

disputed before the trial court, that was overruled. Before this

Court, such a contention was never raised.

17. On an overall assessment of the evidence and materials

on record, the incident can be attributed only to the rashness and

negligence on the part of the driver of the bus and therefore the trial

court has rightly convicted the appellant for commission of offence

punishable under Section 304A IPC. The conviction is confirmed.

18. Turning to the sentence, no doubt that the court has

imposed maximum sentence awardable under Section 304A IPC.

Having regard to the lapse of time, which is to be attributed to

institutional laches, and taking note of the fact that the appellant has

no criminal antecedents, the sentence is liable to be modified.

Crl.A.433/11 :12:

Therefore, the sentence imposed by the trial court is modified and

reduced to simple imprisonment for four months. He is entitled to

get the benefit under Section 428 Cr.P.C.

Appeal allowed in part, as above.

Sd/-

K.HARIPAL JUDGE

okb/30.3.21 //True copy// P.S. to Judge