P.Muhammed vs The State Of Kerala
2021 Latest Caselaw 534 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

         THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

THURSDAY, THE 07TH DAY OF JANUARY 2021/17TH POUSHA, 1942

               Crl.Rev.Pet.No.4296 OF 2007

      AGAINST THE JUDGMENT IN Crl.Appeal No.580/2001
    DATED 23-09-2005 OF II ADDITIONAL SESSIONS COURT,
                    KOZHIKODE DIVISION

   CC 156/1994 DATED 12-10-2001 OF JUDICIAL FIRST CLASS
              MAGISTRATE COURT-V, KOZHIKODE


REVISION PETITIONER/APPELLANT/ACCUSED:

           P.MUHAMMED,
           S/O.EANUDHEENKUTTY,
           VALIYATHAZHATH HOUSE,
           KUZHIMANNA P.O., KONDOTTY,
           MALAPPURAM.

           BY ADV.SRI.K.M.FIROZ

RESPONDENT/RESPONDENT/STATE:

           THE STATE OF KERALA,
           (REPRESENTED BY CIRCLE INSPECTOR OF POLICE,
           CITY TRAFFIC, KOZHIKODE)
           REPRESENTED BY THE PUBLIC PROSECUTOR,
           HIGH COURT OF KERALA, ERNAKULAM.

             BY SENIOR PUBLIC PROSECUTOR SRI.M.S.BREEZ


     THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 21-12-2020, THE COURT ON 07-01-2021 PASSED THE
FOLLOWING:
 Crl.R.P.No.4296 of 2007


                                  ..2..



                                                                                [CR]
                            ORDER

The revision petitioner is the accused in

CC.No.156/1994 on the file of the Judicial First Class

Magistrate Court-V, Kozhikode and the appellant in

Crl.Appeal No.580/2001 on the file of the second

Additional Sessions Court, Kozhikode. The offences alleged

against the accused are punishable under Sections 279,

337, 338 and 304A of the IPC.

2. The prosecution case in brief is that on

19.1.1993 at about 3 pm., the revision petitioner drove a

stage carriage bus bearing registration No.KLM-7408 in a

rash and negligent manner through the Ramanattukara

National High Way and when it reached in front of the

Poovannur mosque at Velipram, the driver took it to the

wrong side of the road and the bus hit against a mini bus

bearing registration No.KL- 11/7711 and due to the impact

of the accident, the passengers of both vehicles sustained Crl.R.P.No.4296 of 2007

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simple and grievous injuries and the driver of the mini bus

and one of the passengers therein succumbed to the

injuries.

3. When the accused entered appearance before

the trial court, he was furnished with copies of the police

report and other documents. Upon pleading not guilty to

the charge, the entire evidence was taken. By judgment

dated 29.4.95, the accused was convicted and sentenced

to undergo imprisonment for various counts stated supra.

The accused preferred Crl.Appeal No.161/1995 before the

Court of Session, Kozhikode. The appeal was allowed and

consequently the conviction and sentence passed by the

trial court was set aside and the case was remanded back

for fresh disposal in accordance with the law. As directed

by the Sessions Court, the prosecution examined PW15

and marked Exts.P29 and P30. Further, PWs.1, 2, 5 and

11 were recalled for cross-examination and they were Crl.R.P.No.4296 of 2007

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cross-examined. After their examination, the learned

counsel for the accused filed a witness list to examine

witnesses on his side. It was allowed and summons was

ordered. However, no batta was deposited by the accused

and hence the defence evidence was closed.

4. The total number of witnesses examined from

the side of prosecution was PWs.1 to 15 and Exts.P1 to

P30 and MO1 series. On appreciation of the evidence, the

learned Magistrate found the accused guilty of the

offences punishable under Sections 279, 337, 338 and

304A of the IPC. Accordingly, he was sentenced to

undergo simple imprisonment for a period of two years for

the offence punishable under Section 304A of the IPC,

simple imprisonment for six months for the offence

punishable under Section 279 of the IPC and simple

imprisonment for a period of six months for the offence

punishable under Section 338 of the IPC. No separate Crl.R.P.No.4296 of 2007

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sentence was awarded under Section 337 of the IPC. It

was further directed that the sentences should run

concurrently. The revision petitioner filed Crl.Appeal

No.580/2001 before the Sessions Court, Kozhikode

division. The appellate court dismissed the appeal

confirming the conviction and sentence imposed by the

trial court.

5. Heard Sri.Firoz.K.M., the learned counsel for the

revision petitioner and Sri.M.S.Breez, the learned Senior

Public Prosecutor for the respondent-State.

6. The learned counsel for the revision petitioner

Sri.Firoz.K.M. contended that the two courts below failed

to consider the relevant facts while passing the conviction

and sentence. It was further contended that the accused

had not caused hurt to any person by doing acts so rashly

or negligently so as to endanger human life or personal

safety of others. According to the learned counsel for the Crl.R.P.No.4296 of 2007

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revision petitioner, the persons who had sustained injuries

in the accident moved claim petitions before the Motor

Accidents Claims Tribunal alleging contributory negligence.

When the witnesses pleaded contributory negligence to

get appropriate compensation from the Tribunal, the

prosecution was obliged to produce sufficient materials

before the court to prove that the accused drove the

offending vehicle in a rash and negligent manner. When

contributory negligence is alleged, according to the

learned counsel for the revision petitioner, it was

obligatory on the part of the prosecution to prove gross

negligence before the trial court beyond doubt. Further it

was contended that the trial court wrongly appreciated the

evidence of PW3 in support of the prosecution case.

Further, the courts below failed to consider the aspects

relating to tyre marks of both the vehicles in the right

perspective.

Crl.R.P.No.4296 of 2007

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7. Per contra, the learned Senior Public Prosecutor

contended that the two courts below concurrently held

that the accused committed the offences punishable under

Sections 279, 337, 338 and 304A of the IPC and

accordingly he was convicted thereunder. Concurrent

findings of facts and law are sought to be set aside in

revision. The trial court as well as the appellate court

convicted the accused for the aforesaid offences by a

process of well-reasoned findings and according to the

learned Senior Public Prosecutor, it would not be just and

proper to interfere in exercise of powers under Section

401 of the Cr.P.C.

8. PWs.1 and 2 were passengers of the mini bus.

They had sustained injuries in the accident. PW1 lodged

Ext.P1 FIS before the police. According to PWs.1 and 2 the

bus which came in the opposite direction overtook another

vehicle and dashed against the mini bus. PWs.1 and 2 Crl.R.P.No.4296 of 2007

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stated that the mini bus was driven at minimum speed

while the other bus was coming in high speed. PWs.1 and

2 identified the accused before the trial court. PW5 was

travelling in the bus driven by the accused. PW5 also

sustained injuries. PW5 stated that the accused drove the

offending vehicle in a rash and negligent manner so as to

endanger human life. According to PW5, over speed of the

mini bus was one of the reasons for the accident. PW3

was also a passenger in the bus bearing registration

No.KLM 7408. PW3 stated that the said bus hit against the

mini bus while overtaking another bus. He maintained that

the accused drove the bus in a rash and negligent manner

so as to endanger human life. PW3 was not cross-

examined. After remand, summons was issued to PW3. It

was returned unserved as he was no more.

9. Ext.P22 mahazar was relied on by the two

courts below to prove that the bus driven by the accused Crl.R.P.No.4296 of 2007

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was on the wrong side at the accident site. Evidence of

the Motor Vehicle Inspector as PW9, and Exts.P15 and P16

reports ruled out brake failure or mechanical defect for

any of the vehicles. Relying on the evidence of PWs.1 to 3

and PW9, it was held that the accused was guilty of the

offences punishable under Sections 279, 337, 338 and

304A of the IPC.

10. The learned counsel for the revision petitioner

mainly contended that PWs.1 and 2 preferred claim

petitions before the MACT for getting compensation on

account of the injuries sustained in the accident. During

cross-examination copies of the claim petitions were

confronted to PWs.1 and 2 and marked Exts.D1 and D2.

As per Exts.D1 and D2, it is seen that the allegation made

therein is that both the drivers of the vehicles were

negligent in driving the vehicles at the time of the

accident. However, they turned round and deposed before Crl.R.P.No.4296 of 2007

..10..

the trial court that the accident had happened due to the

negligent driving of the driver of the bus bearing

registration No.KLM 7408. Going by Exts.D1 and D2, it is

clear that PWs.1 and 2 pleaded contributory negligence.

In Easo Mathew v. State of Kerala [ILR 1967 (1)

Kerala 352] it was held that contributory negligence of

the victim is no defence against a charge under Section

279 or 304A of the IPC. A driver must anticipate

reasonably foreseeable negligent act of odd users as

doctrine of contributory negligence has no application in

criminal law. Thus, the doctrine of contributory negligence

does not apply to a criminal liability, where the death of a

person is caused partly by the negligence of the accused

and partly by his own negligence. Essential ingredients of

Section 304A of the IPC are the following:-

               i)    Death of a person
               ii)   Death was caused by the accused
                     during any rash or negligent act.
 Crl.R.P.No.4296 of 2007


                                      ..11..


               iii)    Act   does     not      amount    to    culpable
                       homicide.

11. In order to prove negligence as defined under

Section 304A of the IPC, the prosecution is obliged to

prove,

i) The existence of duty

ii) A breach of the duty causing death

iii) The breach of the duty must be characterized as gross negligence.

12. PW1 testified before the court that on 19.1.93

at 3 pm. near to the Poovannur Masjid at Ramanattukara

while he was travelling on the mini bus bearing

registration No.KL-11/7711, the offending vehicle

overtook another vehicle negligently and hit against the

mini bus and thereby he along with others sustained

injuries. PW2 supported his version. Two of the injured

died. During cross-examination PWs.1 and 2 stated that

there was no negligence on the part of the driver of the Crl.R.P.No.4296 of 2007

..12..

mini bus. However, Exts.D1 and D2 would show that both

the drivers were negligent in driving the vehicles.

13. Driving at a high speed is not in itself a

negligent act. In the case of Ravi Kapur v. State of

Rajasthan [AIR 2012 SC 2986], the Apex Court held

that a person who drives a vehicle is liable to be held

responsible for the act as well as for the result and that it

may not be always possible to determine with reference to

the speed of a vehicle whether a person was driving rashly

and negligently and even when one is driving a vehicle at

a slow speed, but, recklessly and negligently, it would

amount to 'rash and negligent driving' within the meaning

of the language of Section 279 of the IPC. Mere driving of

a vehicle at a high speed or slow speed does not lead to

an inference that negligent or rash driving had caused the

accident resulting in injuries to the complainant. Thus, the

speed is not a criterion to establish the fact of rash and Crl.R.P.No.4296 of 2007

..13..

negligent driving of a vehicle. When it is alleged that

driving of the offending vehicle leads to an accident, the

main question arising for consideration is as to whether

the driver of the offending vehicle drove the vehicle in a

rash and negligent manner. The speed is not the only

criterion. The width of the road, density of traffic, tyre

marks, etc. are also criteria to decide negligence. It is

necessary to appreciate the evidence in unbiased manner

especially when two vehicles are involved and the accident

is head-on-collision. Although contributory negligence is

not a defence in a criminal case, when contributory

negligence is set up as a ground by the injured in a case

relating to the very same accident before the Motor

Accident Claims Tribunal, it is necessary on the part of the

prosecution to adduce convincing evidence before the

court to prove gross negligence. It is necessary to prove

that the death was due to the rash or negligent act of the Crl.R.P.No.4296 of 2007

..14..

accused and the act must be sufficient cause without

intervention of another's negligence. In other words, it

must be, causa causans; it is not enough that it may have

been the causa sine qua non. There must, therefore, be

direct nexus between the death of a person and the rash

or negligent act of the accused.

14. The important document with regard to the

offence is Ext.P22 scene mahazar. Ext.P22 would show

that the road lies on North-South direction and the road is

straight upto 80 metres towards North and 65 metres

towards South. The width of the road at the place of

occurrence is 9.30 metres which part of the road has a

road margin of 4.50 metres on the western and 3 metres

on the Eastern side. The place of occurrence is at 1.5

metres on the western tarred end. Relying on Ext.P22

mahazar as a piece of evidence, the trial court held that

no explanation was offered by the accused as to how he Crl.R.P.No.4296 of 2007

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came to the Western side where the width of the road is

9.30 metres and the road is straight.

15. In Ext.P22 mahazar PW11 stated that he

identified the place of occurrence as pointed out by one

Raimkutty Mohammed Kutty on 20.1.1993 at 3 pm.

However the said Raimkutty was not examined as witness

during trial. The trial court mainly accepted the contents

of scene mahazar as evidence without the evidence to

prove its contents. The contents of scene mahazar cannot

be treated as 'evidence' to prove any of the facts referred

to therein unless and until the witness, who pointed out

the place of occurrence, was examined before the court. A

learned Single Judge of this Court had an occasion to

consider this aspect in detail in Mohanan v. State of

Kerala [2011 (3) KHC 680]. It is clear from Ext.P22

that the investigating officer identified the place of

occurrence based on the information furnished by one Crl.R.P.No.4296 of 2007

..16..

Raimkutty. However, he was not examined to prove the

facts stated. Hence Ext.P22 cannot be acted upon to enter

a finding that what are all stated in Ext.P22 are proved

beyond doubt.

16. PW3 one of the eye witnesses to the occurrence

was initially chief-examined before the trial court. He was

not cross-examined. After remand when summons was

issued to him, the summons was returned with an

endorsement that he was no more. Section 33 of the

Evidence Act deals with statements of persons who cannot

be called as witnesses. A reading of Section 33 of the

Evidence Act shows that the evidence in earlier

proceedings would be relevant in subsequent proceedings

if the ingredients of the proviso were complied with. Those

ingredients are:-

(i) that the earlier proceedings were between the same parties or their predecessor-in- interest.

Crl.R.P.No.4296 of 2007

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(ii) that the averse party in the first proceeding had the right and opportunity to cross-examine, and

(iii) that the question in issue was substantially the same in the first as in the second proceeding.

17. One of the requirements for application of

Section 33 of the Evidence Act is that the adverse party in

a proceeding should have the right and opportunity to

cross-examine. In the case on hand, the evidence was

recorded in chief. However, the witness was not cross-

examined. If opportunity for cross-examination was

offered, but the party did not avail himself of the right and

opportunity, the deposition would be clearly admissible. In

the case on hand, such an opportunity was not given.

Evidence given by a witness in a previous judicial

proceeding or in a later stage of the same judicial

proceeding, when the witness is dead, is relevant for the Crl.R.P.No.4296 of 2007

..18..

purpose of proving the matter, provided the witness

examined by the prosecution was subjected to cross-

examination. Hence, the evidence adduced by PW3 cannot

be relied on to enter a finding that the accused drove the

offending vehicle in a rash and negligent manner.

18. On going through the oral evidence of PWs.1

and 2, there is nothing to indicate that the accused was

driving the vehicle at a speed which would justify holding

that he was driving the vehicle rashly and negligently. No

tyre mark was noticed in Ext.P22 mahazar to prove that,

the offending vehicle, hit against the vehicle involved in

the accident, had deviated from its path as alleged by the

prosecution. There is no evidence in this case to hold that

the death of the two persons was direct result of the rash

or negligent act of the accused. When driving leads to an

accident, the main question is whether it was rash and

negligent. But in deciding this, the speed alone is not the Crl.R.P.No.4296 of 2007

..19..

only criteria. The width of the road, density of traffic, an

attempt to overtake, tyre marks are also criterion. In this

case, as stated earlier, Ext.P22 is inadmissible in evidence.

PWs.1 and 2 have not adduced any evidence to locate the

place of occurrence specifically. The width of the road is

not proved. Tyre marks are not proved. The mere

allegation that the vehicle was driven in a high speed is

not enough to prove criminal rashness or criminal

negligence to prove the occurrence.

19. When there is glaring defect in the procedure

and manifest error on a point of law, the findings are

liable to be revised in revision. Hence the conviction and

sentence imposed by the two courts below are liable to be

set aside.

Resultantly, the criminal revision petition is allowed.

The revision petitioner/accused is found not guilty of the

offences under Sections 279, 337, 338 and 304A of the Crl.R.P.No.4296 of 2007

..20..

IPC and he is acquitted thereunder. Cancelling his bail

bond, this Court directs that he be set at liberty. If any

fine amount is deposited by the revision petitioner/

accused during the pendency of this revision, pursuant to

an interim order passed by this Court, the same shall be

refunded to the revision petitioner/accused in accordance

with rules. Pending applications, if any, stand disposed of.

Sd/-

N.ANIL KUMAR, JUDGE skj