Robertlal vs State Of Kerala
2021 Latest Caselaw 138 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

         THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942

                 Crl.Rev.Pet.No.1646 OF 2010

CRA 296/2008 OF ADDITIONAL SESSIONS COURT, FAST TRACK-II,
                   THIRUVANANTHAPURAM

   CC 347/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS,
                       KATTAKADA


REVISION PETITIONER/S:

           ROBERTLAL, S/O ENANEEZAR
           PUTHAN VEEDU, KUZHINJAKALAVILLA,, WILAMAMOODU,
           KUNNATHUKAL DESOM, KUNNATHUKAL, VILLAGE,
           THIRUVANANTHAPURAM.

           BY ADV. SRI.S.SUNIL MAURYAN

RESPONDENT/S:

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


OTHER PRESENT:

           SR.PP.M.S.BREEZ

     THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 05.01.2021, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
 CRRP No.1646/2010
                                  ..2..




                            O R D E R

The revision petitioner is the accused in CC

No. 347 of 2001 on the file of the Judicial

First Class Magistrate Court, Kattakada and

the appellant in Crl.Appeal No. 296 of 2008 on

the file of the Additional Sessions Court,

Fast Track-II, Thiruvananthapuram. The

offences alleged against the accused are

punishable under Sections 279, 337, 338 and

304(A) of the Indian Penal Code (hereinafter

referred to as, "the IPC").

2. The prosecution case, in brief, is that on

20.02.2001 at 8 pm, the accused drove a KSRTC

bus in a rash and negligent manner so as to

endanger human life along the Thachottukavu -

Malayinkeezhu road and while so, the front

left side of the KSRTC bus dashed against a

motorcycle bearing Reg.No.KL 01 H 9498, ridden

by PW6 along with one Jayakumari and her CRRP No.1646/2010 ..3..

daughter Lakshmi on its pillion and as a

result of which, PW6 and Lakshmi fell towards

the left side of the road and Jayakumari fell

towards the right side of the road and the

speedy bus ran over the body of Jayakumari and

she succumbed to the injuries later, while

undergoing treatment at the Medical College

Hospital, Thiruvananthapuram at 8.30 pm on the

same day itself. Lakshmi, the child of the

deceased also sustained injuries in the very

same accident.

3. On the appearance of the accused, after having

heard both sides, the trial court framed

charge against the accused for the offences

punishable under Sections 279, 337, 338 and

304(A) of the IPC. The charge was read over,

to which the accused pleaded not guilty.

4. During the trial, PWs 1 to 11 were examined

and marked Exts.P1 to P12 on prosecution side.

On closing the evidence of the prosecution,

the accused was questioned under Section CRRP No.1646/2010 ..4..

313(1)(b) of the Code of Criminal Procedure.

He denied all the incriminating circumstances

appearing in the evidence against him. When he

was called upon to enter on his defence, no

evidence was adduced.

5. On appreciation of the evidence, by its

judgment dated 13.03.2008, the trial court

convicted the accused under Sections 279, 337,

338 and 304(A) of the IPC and sentenced him to

pay fine of Rs.1,000/-, Rs.500/- and

Rs.1,000/- respectively for the offences

punishabled under Sections 279, 337 and 338 of

the IPC and in default of payment fine to

undergo simple imprisonment for one month. The

accused was further sentenced to undergo

simple imprisonment for one year for the

offence under Section 304(A) of the IPC.

6. Challenging the conviction and sentence

imposed by the trial court, the accused

preferred Crl. Appeal No. 296 of 2008 and the

appellate court, by its judgment dated CRRP No.1646/2010 ..5..

27.02.2010, dismissed the appeal confirming

the judgment of conviction and sentence

imposed by the trial court. Feeling aggrieved,

the accused is before this Court in revision.

7. Heard Sri.Sunil Mauryan, the learned counsel

for the revision petitioner; and

Sri.M.S.Breez, the learned Senior Public

Prosecutor for the respondent-State.

8. PW5, one of the persons allegedly present at

the scene of occurrence, lodged Ext.P1

statement before the police stating that on

20.02.2001 at at 7.45 hrs, a KSRTC bus bearing

Reg.No.TN 169 dashed against the bike ridden

by PW6 along with one Jayakumari and her

child, Lakshmi, on its pillion. PW5 stated

that the accident took place as a result of

the carelessness on the part of the driver of

the offending vehicle. The accident took place

at the public road in front of Malayinkeezhu

Bank Auditorium on the Thachottukavu -

Malayinkeezhu road. Ext.P6 mahazar would show CRRP No.1646/2010 ..6..

that place of occurrence is on the

Thachottukavu - Malayinkeezhu road, which lies

on east west direction. The accident spot is

on the northern side of the road. It is clear

that the KSRTC driver was maintaining his left

side while he was proceeding from

Thachottukavu to Malayinkeezhu junction on the

date of occurrence and the accident spot, as

is evident from Ext.P6, is on the northern

side of the road. The road at the accident

place is having a width of 5 m and 55 cm.

Ext.P6 would further indicate that there is a

footpath having a width of 1 m and 25 cm on

the northern side and similarly a footpath

having a width of 2 m and 5 cm on the southern

side. The rider was proceeding in front of the

bus. Going by the evidence of PW6, it is clear

that he was trying to avoid a cable pit in the

road and when he applied brake, the KSRTC bus,

which was proceeding from the back side of the

motorcycle, dashed against it. It is clear CRRP No.1646/2010 ..7..

from the circumstances that the left back tyre

of the bus went over the deceased. There is

nothing to indicate that the accident was

after overtaking the motorcycle by the

accused. No evidence was adduced by PWs 5 and

6 to show that the accused made an attempt to

overtake the motorcycle at the time of

accident. PW6 admitted, when he was examined

in box, that he had applied brake to avoid a

cable pit in the road. The occurrence took

place at 8 pm. No evidence was adduced by the

witnesses to prove the source of light

available at the spot to witness the

occurrence as alleged by the prosecution. PW5

has also not deposed about the source of light

at the scene of occurrence at 8 pm. PW6, the

rider of the motorcycle, was riding the

motorcycle in front of the KSRTC bus. He had

no opportunity to witness the alleged rash and

negligent driving on the part of the accused.

The only thing he could ascertain is that the CRRP No.1646/2010 ..8..

bus dashed against the motorcycle when he

stopped the vehicle in front of a cable pit in

the road. Unless and until positive evidence

is adduced to prove negligence, it is not

sufficient to enter a finding that the accused

drove the vehicle on the date of occurrence in

a rash and negligent manner as alleged by the

prosecution.

9. On a perusal of the evidence let in by PW1, it

is seen that he has put signature in Ext.P1

inquest report. There is nothing on record to

prove negligence on the part of the accused.

PW2, one of the independent witnesses examined

by the prosecution, turned hostile to the

prosecution. PW3 is only a witness in Ext.P2

kycheet. PW4 is a signatory in Ext.P5 mahazar.

PW5, who lodged Ext.P1 First Information

Statement before the police has not stated

anything touching the rash and negligent

driving of the accused. PW6 was examined

before the court. However, he admitted in CRRP No.1646/2010 ..9..

chief examination that he made an attempt to

stop the vehicle in front of a cable pit. In

his chief examination, he did not say that the

accused drove the vehicle in a rash and

negligent manner so as to endanger human life.

PW7 is the doctor, who conducted postmortem

examination on the body of the deceased

Jayakumari, 37 years, and issued Ext.P7

Postmortem Certificate. PW8 is a signatory in

Ext.P6 scene mahazar. PW9 is the investigating

officer, who conducted investigation in this

case. He has also not spoken anything

regarding the rash and negligent driving of

the accused on the date of occurrence.

According to him, he conducted investigation

in this case and filed final report. PW10

prepared Ext.P10 scene plan and submitted

before the court. PW11, the Regional Transport

Officer, examined the offending vehicle and

issued Ext.P12 certificate. Based on the above

shabby evidence, the trial court convicted and CRRP No.1646/2010 ..10..

sentenced the accused for the offences

punishable under Sections 279, 337, 338 and

304(A) of the IPC. Going by the evidence of

PW5 and PW6, this Court is not in a position

to find any of the ingredients of the offences

contemplated under Sections 279, 337, 338 and

304(A) of the IPC. The offences are not proved

beyond doubt. This is a case, where the

accused was convicted by the trial court,

which was later confirmed by the appellate

court without any evidence.

10.Judged by the above standards, this Court is

of the view that both the trial court and the

appellate court convicted and sentenced the

accused without considering the legal aspects

involved. Thus, the conviction and sentence

rendered by the trial court, which was later

confirmed in appeal, are irregular, illegal

and improper.

In the result, the criminal revision petition

is allowed. The revision petitioner/accused is CRRP No.1646/2010 ..11..

found not guilty of the offences punishable

under Sections 279, 337, 338 and 304(A) of the

IPC and he is acquitted thereunder. Cancelling

his bail bond, this Court directs that he be

set at liberty. If any amount is deposited

pursuant to an interim order passed by this

Court, the same shall be released to the

revision petitioner/accused in accordance with

law. Pending applications, if any, stand

disposed of.

Sd/-

N.ANIL KUMAR

JUDGE Bka/06.01.2020