Kerala High Court
Sudhakaran K.M vs State Of Kerala on 29 January, 2025
CRL.R.P NO. 981 OF 2018 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
WEDNESDAY, THE 29TH DAY OF JANUARY 2025 / 9TH MAGHA, 1946
CRL.REV.PET NO. 981 OF 2018
AGAINST THE JUDGMENT IN Crl.A NO.25 OF 2013 OF SESSIONS
COURT, THALASSERY ARISING OUT OF THE JUDGMENT IN CC NO.631 OF
2010 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE ,THALASSERY
REVISION PETITIONER/APPELLANT:
SUDHAKARAN K.M.
S/O.KRISHNAN, AGED 59 YEARS,
"KUNDANCHALIL MANDOLI HOUSE,PATTIAM AMSOM,
THALASSERY - 670 612.
BY ADV SRI.SATHEESHAN ALAKKADAN
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM - 682 031.
BBY PUBLIC PROSECUTOR SMT.MAYA M.N
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
HEARING ON 8.1.2025, THE COURT ON 29.01.2025 DELIVERED THE
FOLLOWING:
CRL.R.P NO. 981 OF 2018 2
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M.B.SNEHALATHA, J
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Crl.R.P.No.981 of 2018
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Dated this the 29th day of January, 2025
ORDER
This revision petition has been preferred by the accused
challenging the judgment in Crl.A.No.25/2013 of Sessions Court,
Thalassery by which it confirmed the conviction and sentence passed
by the Additional Chief Judicial Magistrate Court, Thalassery in
C.C.No.631/2010 for the offences punishable under Sections 279,
337 and 304(A) IPC.
2. Prosecution case is that on 16.7.2010 at 8.35 am
accused drove a bus bearing registration No.KL-13-N-5776 in a rash
and negligent manner so as to endanger human life through Panoor-
Thalassery Public Road and when it reached near Chambad-Makkuni
it hit two pedestrians causing injuries to both. Radha who sustained
grievous injuries succumbed to the injuries. Accused thereby
committed the offences punishable under Sections 279, 337 and
304(A) IPC.
3. To substantiate the charges levelled against the accused,
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prosecution examined PWs 1 to 11 and marked Exts.P1 to P12. No
defence evidence was adduced by the accused.
4. On an appreciation of the evidence adduced, the trial
court found the accused guilty under Sections 279, 337, 304(A) IPC
and convicted and sentenced him for the said offences.
5. The appeal preferred by the accused as Crl.A No.25/2013
before the Sessions Court, Thalassery was dismissed by the learned
Sessions Judge by confirming the conviction and sentence.
6. It is a well settled position of law that unless the finding
of the court, whose decision is sought to be revised, is shown to be
perverse or untenable in law or is grossly erroneous or glaringly un-
reasonable or where the decision is based on no material or where
the material facts are wholly ignored or where the judicial discretion
is exercised arbitrarily or capriciously, the revisional courts may not
interfere with decision. (Kishan Rao Vs. Shankargouda (2018(8)
SCC 165).
7. In State of Kerala v. Putthumana Illath Jathavedan Nam-
boodiri reported in AIR (1999 SC 981), the Hon'ble Supreme Court
held that ordinarily it would not be appropriate for the High Court to
re-appreciate the evidence and come to its own conclusion on the
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same when the evidence has already been appreciated by the Mag-
istrate as well as the Sessions Judge in appeal, unless any glaring
feature is brought to the notice of the High Court which would other-
wise tantamount to gross miscarriage of justice.
8. Bearing in mind the above settled principle, we can
have a look at the prosecution evidence. PW1, who laid Ext.P1 first
information statement has categorically testified that he is an eye
witness to the incident; that on 16.7.2010 at 8.30 am. while he was
on his way to purchase fish, he witnessed the incident; According to
him, the bus driven by the accused hit victim Radha and thereafter
hit PW2 Ramakrishnan. According to him, the incident occurred
when the accused tried to overtake another bus which had been
stopped near the place of incident. PW1 has categorically testified
that it was the accused who was driving the bus at the time of the
incident and the accident occurred due to the rash and negligent
driving of the accused. PW1 has further testified that the victim
Radha succumbed to the injuries on the same day.
9. PW2 is an injured in the said accident. According to
him the bus driven by the accused hit him; that he sustained in-
juries in the incident. According to him, the incident occurred while
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the accused tried to overtake another bus which had been stopped
there to take passengers. PW7 testified that on 16.7.2010 while
she was travelling in a bus, the said bus was involved in an accident
and she suffered injuries in the said accident. But the prosecution
did not produce any medical records to prove that PW7 sustained
any injury in the accident.
10. The evidence tendered by PW11 doctor who con-
ducted autopsy examination on the body of the victim Radha cou-
pled with Ext.P11 postmortem certificate would show that the victim
Radha died on account of the injuries sustained by her in the road
accident. Ext.P3 wound certificate and the evidence of PW4 doctor
corroborates the version of PW2 that he sustained injuries on
16.7.2010 in motor vehicle accident.
11. The evidence adduced by the prosecution would
show that it was the accused who was driving the bus bearing regis-
tration No.KL-13N 5776 at the time of the incident. It stands estab-
lished that the bus driven by the accused hit a lady named Radha
and PW2 Radhakrishnan, causing injuries to both. The evidence on
record would show that the victim Radha who sustained fatal in-
juries in the accident succumbed to the injuries.
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12. Ext.P2 scene mahazar and Ext.P7 body mahazar of
the bus also adds credence to the prosecution case that it was the
rash and negligent driving of the accused which resulted in the acci-
dent. In Ext.P5 report of Assistant Motor Vehicle Inspector, PW6
has specifically reported that the bus involved in the accident had no
mechanical defects during the relevant time. It also fortifies the
prosecution case that the accident occurred due to the rash and
negligent driving of the accused. The two pedestrians were knocked
down by the bus driven by the accused, causing death of one person
and injuries to the other. The evidence on record would show that
the accused drove the bus in a rash and negligent manner so as to
endanger human life. The maxim 'res ipsa loquitur' squarely applies
to the case on hand. The prosecution has succeeded in establishing
that the accused drove the bus in a rash and negligent manner so as
to endanger human life and caused death of one lady named Radha
and also caused injuries to PW2.
13. Therefore, this Court finds no reason to interfere
with the finding rendered by the trial court which was confirmed by
the learned Sessions Judge that the accused has committed the
offences punishable under Sections 279, 337 and 304(A) IPC.
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Accordingly, conviction of the accused for the said offences stands
confirmed.
14. Now let us see whether the sentence passed
against the accused needs any interference.
15. The accused stands sentenced to pay a fine of
₹1000/- for the offence punishable under Section 279 IPC, to pay a
fine of ₹500/- for the offence under Section 337 IPC and to undergo
simple imprisonment for a period of one year for the offence under
Section 304(A) IPC. Default custodial sentence for nonpayment of
fine was also ordered. The driving licence of the accused was
suspended for a period of six months under Section 20 of the Motor
Vehicles Act.
16. The learned counsel for the accused submitted that
the accused is now aged 70 and is suffering from serious cardiac
ailments and if he is sent to jail at this stage, his life will be in
danger. It was also contended by the learned counsel for the
accused that the accident occurred 15 years ago; that the accused
was on bail for all these years and therefore if he is sent to jail at his
winter years, it would result in great hardship and sufferings to him
and his family.
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17. To substantiate the case of the accused that he is
suffering from serious cardiac ailments, accused has produced
medical certificates and treatment records.
18. The genuineness of the treatment certificate and
other medical records produced by the accused are not disputed by
the learned Public Prosecutor rather the learned Public Prosecutor
fairly conceded that the case canvassed by the accused that he is
suffering from heart ailments is true
19. The medical records would reveal that accused has
double vessel coronary disease.
20. Prosecution has no case that accused has any
criminal antecedents.
21. There is no absolute bar for extending the benefit
of Section 4 of the Probation of Offenders Act, to a convict who is
found guilty of the punishable under Section 304A IPC.
22. In State through Central Bureau of Investigation,
Anti Corruption Branch, Chandigarh v. Sanjiv Bhalla and another
(2015(13) SCC 444), the Hon'ble Supreme Court observed that the
absolute principle of law cannot be laid down that in no case falling
under Section 304A IPC should a convict be released on probation.
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It is further observed that certainly not to say that in all cases falling
Under Section 304A of the Indian Penal Code, the convict must be
released on probation. The relevant portion of the said judgment is
extracted hereinbelow:
"It does appear that depending upon the facts of
each case, causing death by what appears (but is not) to be
a rash or negligent act may amount to an offence
punishable under Part II of Section 304 of the Indian Penal
Code, not warranting the release of the convict under
probation. There may also be situations where an offence is
punishable Under Section 304A of the Indian Penal Code in
an accident "where mens rea remains absent" and refusal to
release a convict on probation in such a case may be too
harsh an approach to take. An absolute principle of law
cannot be laid down that in no case falling Under Section
304A of the Indian Penal Code should a convict be released
on probation. This is certainly not to say that in all cases
falling Under Section 304A of the Indian Penal Code, the
convict must be released on probation-it is only that the
principles laid down in Sections 360 and 361 of the Code of
Criminal Procedure and the Probation of Offenders Act
should not be disregarded but should be followed and an
appropriate decision, depending on the facts of the case, be
taken in each case."
23. In Premchand v. State of Himachal Pradesh (2017
SCC OnLine SC 2222) the Apex Court extended the benefit of
Probation of Offenders Act, 1958 to the convict for the offence
punishable under Sections 279, 337 and 338 IPC holding that he
was the first time offender and has no antecedents.
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24. In Paul George v. State of N.C.T of Delhi [2008(4)
SCC 185] wherein the accused was found guilty under Sections 279
and 304A IPC and convicted, the Hon'ble Supreme Court invoked the
provisions of the Probation of Offenders Act and ordered to release
the accused under Section 4 of the Probation of Offenders Act, 1958.
25. Bearing in mind the galloping trend in road
accidents and its devastating consequences, normally, this Court
would not have invoked the provisions of Probation of Offenders Act,
1958 for the offences punishable under Sections 279, 337 and 304A
IPC. But regard being had to the fact that the accused who is now
aged 70 is suffering from serious heart ailments, I am of the view
that this is a fit case wherein the benevolent provisions of Probation
of Offenders Act can be extended.
26. In the result, the Crl.R.P is allowed in part as
follows:
i) The conviction of the accused for the offence
punishable under Sections 279 and 337 and 304A IPC
stands confirmed.
ii) Accused is released on probation of good conduct and
he shall appear before the Additional Judicial First Class
Magistrate Court, Thalassery on or before 10.2.2025 and
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shall execute a bond for ₹50,000/- with two solvent
sureties each for the like sum to the satisfaction of the
learned Magistrate to appear and receive sentence when
called upon during the period of two years from the said
date and in the meantime to keep peace and good
behaviour.
iii) Accused shall deposit ₹25,000/- towards
compensation to the legal heirs of the victim Radha within
one month as provided under Section 5 of the Probation
of Offenders Act, 1958 and shall deposit ₹3,000/- as
compensation to PW2 Ramakrishnan. If the
compensation is not paid, it can be realised as fine, as
provided under Section 5(2) of the Probation of Offenders
Act, 1958. Upon deposit of compensation, the learned
Additional Chief Judicial Magistrate shall release the
amount to the legal heirs of Radha and the injured
Ramakrishnan as ordered above.
Sd/-
M.B.SNEHALATHA
JUDGE
ab
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APPENDIX OF CRL.REV.PET 981/2018
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE INTIMATION DATED 08-07-
2014 ISSUED FORM THE OFFICE OF MINISTER
FOR FINANCE LAW AND HOUSING, GOVERNMENT OF
KERALA
Annexure A2 TRUE COPY OF THE INTIMATION DATED 13-01-
2016 ISSUED BY THE PRESIDENT OF PADYAM
GRAMA PANCHAYATH, REQUESTING THE AUTHORITY
TO GRANT FINANCIAL AID
Annexure A3 INTIMATION DATED 12-07-2018 ISSUED FORM
THE OFFICE OF HEALTH AND SOCIAL JUSTICE ,
GOVERNMENT OF KERALA TO THE PETITIONER
INFORMING OF GRANTING OF RS 20,000/- TO
THE PETITIONER FOR MEDICAL AID
Annexure A4 TRUE COPY OF MEDICAL CERTIFICATE DATED 23-
08-2022 ISSUED FROM CARDIO CARE ,
KOOTHUPARAMBA TO THE PETITIONER IN RESPECT
OF HIS DISEASE
Annexure A5 TRUE COPY OF THE PRESCRIPTION DATED 04-01-
2022 , 05-12-2023 AND 26-03-2024 ISSUED BY
CARDIO CARE HOSPITAL, KOOTHUPOARAMBA
Annexure A6 TRUE COPY OF THE MEDICAL CERTIFICATE DATED
23-04-2024 ISSUED BY THE CARDIO CARE
HOSPITAL TO THE PETITIONER
