Kerala High Court
Paulson vs State Of Kerala on 17 October, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946
CRL.A NO. 1636 OF 2007
AGAINST THE ORDER/JUDGMENT DATED 03.08.2007 IN SC NO.397 OF
2006 OF ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR
APPELLANT/ACCUSED:
PAULSON,
S/O VARGHESE,
KURIYEDATH HOUSE, ST.GEORGE STREET,
CHOVANNUR VILLAGE, CHOVANNUR DESOM,KUNNAMKULAM.
BY ADVS.
SRI.P.VIJAYA BHANU
SRI.P.M.RAFIQ
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
OTHER PRESENT:
PP-ADV.SRI.ASHI. M.C
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.10.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl. Appeal No.1636 of 2007 2
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SOPHY THOMAS, J.
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Crl. Appeal No.1636 of 2007
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Dated this the 17th day of October, 2024
JUDGMENT
This appeal is at the instance of the sole accused in S.C No.
397/2006 on the file of IIIrd Additional Sessions Judge (Adhoc), Fast
Track Court No.1, Thrissur, challenging his conviction and sentence
under section 304(A) and 429 of IPC, as per judgment dated
03.08.2007.
2. The prosecution allegation is that on 03.05.2001, at 4 a.m.,
the accused drove Reg.No.KL.8F.1555, stage carriage through
Thirssur-Kunnamkulam Public road, in a rash and negligent manner
endangering human life, from south towards north and near the chapel
Mundoor it hit against the back side of an elephant which as walking
in front, causing serious injuries and thereafter the bus rammed into a
tree standing by the road side. CWs 2 to 10, who were passengers in
the bus and CWs 11 and 12 -the mahouts of the elephant got injured.
A five year old boy named Sinil, who was also the traveling in that bus,
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sustained serious injuries to which he succumbed. The accused drove
the bus at high speed, with the knowledge that his rash and
negligence act was likely to cause death.
3. The accused was charge sheeted by C.I of Police
Kunnamkulam, for offences punishable under Section 304 Part-II, 304-
A, 308 and 429 of I.P.C.
4. On committal, the accused appeared before the trial court
and charge was framed against him, under Sections 304 Part-II, 304-
A, 308 and 429 of IPC, to which he pleaded not guilty and claimed to
be tried. PWs 1 to 12 were examined and Exts.P1 to P19 were marked
from the side of prosecution. On closure of prosecution evidence, the
accused was questioned under Section 313 of Cr.P.C. He denied all
the incriminating circumstances brought on record. No defence
evidence was adduced.
5. On analysing the facts and evidence, and on hearing the
rival contentions from either side, the trial court found that the offence
committed by the accused would fall under Sections 304A and 429 of
IPC, and not under Sections 304 Part-II and 308 of IPC. So he was
acquitted for the offences punishable under Sections 304 Part-II and
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308 of IPC and he was convicted and sentenced under section 304 A
and 429 of IPC. He was sentenced to undergo rigorous imprisonment
for one year and fine of Rs.3,000/-, with a default sentence of simple
imprisonment for two months under Section 304A of IPC, and rigorous
imprisonment for two years and fine of Rs.3,000/-, with a default
sentence of simple imprisonment for two months under Section 429 of
IPC. Aggrieved by the conviction and sentence, the accused has
preferred this appeal.
6. Heard learned counsel for the appellant and learned Public
Prosecutor.
7. The case of the appellant was that, he was not the driver of
the bus KL.8F.1555, as on the date of accident. But the evidence of
PWs 1 to 3 was sufficient enough show that, he was the driver of the
offending bus at the time of the incident. Moreover PW7, the conductor
of that bus also identified the accused as the driver of that bus at the
time of incident. Ext.P13 (a), the trip sheet of the bus as on the date of
incident i.e.03.05.2001 shows the name of the appellant herein as its
driver. So there is no dispute with regard to the identity of the driver
who was driving the offending bus, at the time of the accident.
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8. Regarding his rash and negligent driving also, the
testimony of PWs 1 to 3 are sufficient to show that, he was driving the
bus in a rash and negligent manner. An elephant walking through the
front, with a reflector on its back, was hit by that bus, itself is sufficient
to infer the rashness and negligence of the appellant. The appellant
has no case that, there was any circumstance, under which he was
prevented from noticing the elephant walking through the front side.
The testimony of witnesses, as well as Ext.P15 scene mahazar will
show that, the elephant was having a reflector on its back side. The
appellant has no case that, no space was available for him to pass
through that road, avoiding the elephant. PW10, the A.M.V.I (Assistant
Motor Vehicle Inspector) who inspected the offending vehicle and
issued Ext.P16, inspection report, would say that, there was no
mechanical defect for that vehicle. So, the available facts and
circumstances are sufficient to prove the rashness and negligence
from the part of the appellant, while driving the offending bus.
9. It has come out in evidence that a five year old child
named Sinil, who was the son of PWs 1 and 2, died due to the injuries
he suffered in that accident. PW2, the mother of that boy also suffered
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injuries apart from CW 3 and CWs 5 to 12. Though the FIR was
registered under Sections 279,337,338, 304 A and 429 of IPC,
subsequently except section 429 of IPC, all other sections were
deleted, and instead Section 304 Part-II and 308 of IPC were
incorporated as per Ext.P18 report filed by the Investigating Officer.
The trial court found that, the offence committed by the accused would
fall under Section 304 A and 429 of IPC and he was convicted
thereunder. In the present appeal, we are concerned only with his
conviction and sentence under Sections 304 A and 429 of IPC. As
already stated, the testimony of witnesses and the documents
produced from the side of the prosecution, including the postmortem
certificate of the child, Sinil and the wound certificates of the injured
persons were sufficient to show that, the boy died and other persons
got injured, due to the rash and negligent driving of the offending bus
by the appellant. Ext.P12 certificate of the injured elephant issued by
PW6 Doctor, was sufficient to show that the said elephant also
suffered serious injuries in the accident which occurred due to the rash
and negligent driving of the offending bus by the appellant. So this
court finds no reason to interfere with the conviction of the appellant
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under Section 304A and 429 of IPC.
10. Learned counsel for the appellant would submit that the
incident in this case occurred in the year 2001 and at that time the
appellant was only 33 years old. Now he is a man of 56 years. So he
prayed for leniency in the matter of sentencing, considering the long
delay of 23 years after the incident. This is a case where due to the
rash and negligent driving of the appellant, a little boy aged 5 years
lost his life and several other persons got injured and an elephant also
suffered serious injuries in the incident. But considering the fact that,
the incident happened 23 years ago while the appellant was only 33
years old, this Court is inclined to modify the sentence as follows.
11. Under section 304A of IPC, the appellant is sentenced to
undergo simple imprisonment for three months and compensation of
Rs.1,00,000/-(Rupees One lakh only) with a default sentence of simple
imprisonment for six months. Under Section 429 of IPC, he is
sentenced to undergo simple imprisonment for three months and fine
of Rs.3,000/-, with a default sentence of simple imprisonment for two
months. The substantive sentences shall run concurrently and set off
can be allowed for the period undergone by the appellant in custody
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during trial. The compensation amount if paid shall be shared by PWs
1 and 2, the parents of the deceased child Sinil.
12. The appellant is directed to appear before the trial court,
on or before 16.12.2024 to receive the sentence and to pay the
compensation amount of Rs.1,00,000 (Rupees One lakh) in total, to
PWs 1 and 2. If PWs 1 and 2 are absent to receive the compensation
amount the appellant can deposit that amount before the trial court. If
the appellant fails to appear before the trial court as directed above,
the trial court has to take steps for executing the sentence, without
further delay.
Registry to forward a copy of this judgment along with the
trial court records forthwith, for facilitating the trial court to execute
the sentence without delay.
The appeal is allowed in part to the extent as.
Sd/-
SOPHY THOMAS
JUDGE
vnk/-
