Fijas vs State Of Kerala
2021 Latest Caselaw 22551 Ker

Crl.A.No.1024/2018                    1

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
         THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
 FRIDAY, THE 19TH DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943
                         CRL.A NO. 1024 OF 2018
   AGAINST THE ORDER/JUDGMENT IN SC 1213/2015 OF ADDITIONAL
         DISTRICT COURT (SPECIAL COURT FOR TRIAL FOR MARADU
                       CASES)KOZHIKODE, KOZHIKODE
 CP 6/2015 OF SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS FOR
            TRIAL OF MARADU CASES, KOZHIKODE, KOZHIKODE
APPELLANT/ACCUSED:

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

             BY ADVS.
             RAMKUMAR P.K.
             ANITHA MENON A


RESPONDENT/STATE:

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

             BY SRI.SUDHEER GOPALAKRISHNAN, PUBLIC PROSECUTOR


      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                  2

                           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).

2. 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.

3. 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

Court found the petitioner guilty of the offence mentioned above

and accordingly the sentence was imposed upon him.

4. Heard Sri.P.K.Ramkumar, learned counsel for the

petitioner and Sri.Sudheer Gopalakrishnan, learned Public

Prosecutor.

5. 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.

6. 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.

7. 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

incident which is unexpectable in nature occurs, such person will

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

8. 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.

9. 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

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.

10. 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:

"B.ANTEMORTEM INJURIES:

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

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

3. 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 1/3rd tibia."

11. 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

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

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.

12. 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.

13. 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

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.

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:

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

(ii) Conviction of the appellant under Section 279 and 379 IPC and

sentence imposed thereon are confirmed.

(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.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE DG/19.11.21