IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 7TH AUGUST 2008 / 16TH SRAVANA 1930 Crl.Rev.Pet.No. 74 of 1999() ---------------------------- CRA.36/1996 of SESSIONS COURT, ALAPPUZHA CC.287/1993 of JUDL.MAGISTRATE OF FIRST CLASS, AMABALAPUZHA .................... REVN. PETITIONER: ------------------ NANDAKUMAR, S/O. KUCHUPILLA NARI, PUTHENKANDATHIL VEEDU, CHEPPADU PANCHAYAT, WARD NO. 6 KARTHIKAPPALLY TALUK, ALAPPUZHA BY ADV. SRI.N.HARIDAS SRI.SUNDEEP HARIDAS RESPONDENTS: ------------- STATE OF KERALA, REPRESENTED BY THE C.I. OF POLICE, AMBALAPPUZHA BY PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ````````````````` Crl.R.P. NO. 74 of 1999 ````````````````` Dated: 7-8-2008 O R D E R In this revision filed under Sec. 397 read with Sec. 401 Cr.P.C. the petitioner who is the accused in C.C. No. 287 of 1993 on the file of the J.F.C.M., Ambalapppuzha for offences punishable under Sections 279 and 304 (A) I.P.C. chalalenges the conviction entered and the sentence passed against him for the said offences. 2. The case of the prosecution can be summarised as follows: On 22-3-1993 at about 9 p.m. the revision petitioner/accused drove a lorry bearing No. KRY 4273 along the Kollam-Alappuzha National Highway-47 from south to north in a rash and negligent manner endangering human life and on account of the rash and negligent driving of the lorry by the revision petitioner the lorry dashed against one Rajamma, 37 years. Rajamma sustained fatal injuries to which she succumbed at about 12.30 hours in the night while undergoing treatment from the Medical College Hospital, Alappuzha. The accused has thereby committed the above said offences. 3. On the accused pleading not guilty to the charge framed against him by the trial court for the aforementioned Crl.R.P. NO. 74 of 1999 -:2:- offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 19 witnesses as P.Ws 1 to 19 and got marked 11 documents as Exts. P1 to P11. and a blue coloured blouse and a brassier were marked as MO1 series and broken glass pieces were marked as MO2 series. 4. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He did not adduce any defence evidence when called upon to do so. 5. The learned Magistrate, after trial, as per judgment dated 30-12-1995 found the revision petitioner guilty of the offences charged against him. For the conviction under Section 279 I.P.C. the revision petitioner was sentenced to rigorous imprisonment for six months. For the conviction under Sec. 304 A I.P.C. he was sentenced to rigorous imprisonment for two years. He was disqualified from holding his driving licence for a period of two years under Sec. 20 of the Motor Vehicles Act. The substantive sentences were directed to run concurrently. On appeal preferred by him as Crl.Appeal 36 of 1996 before the Sessions Court, Alappuzha, the learned Sessions Judge as per judgment dated 21-12-1998 confirmed the conviction entered but modified the sentence by imposing a fine of Rs. 1,000/- under Crl.R.P. NO. 74 of 1999 -:3:- Sec. 279 I.P.C. by reducing the rigorous imprisonment from two years to six months under Sec. 304 I.P.C. Hence, this Revision. 6. P.W.1 is a Panchayath member who admittedly did not see the occurrence. He reached the spot soon after the occurrence and gave Ext.P1 F.I. statement to the Punnappra police which registered Crime No. 56 of 1993. P.Ws.2 to 4 are the occurrence witnesses of whom P.Ws. 2 and 3 turned hostile to the prosecution. The only person who supported the prosecution was P.W.4 who admittedly does not belong to Punnapra area where the occurrence took place. He is a person from Thiruvalla which is about 50 kms. away from the place of occurrence. Even assuming that he is not a chance witness, what he deposed was that the lorry driven by the revision petitioner came from south and knocked down a woman who was taken to the Medical College Hospital from where she succumbed to the injuries. The cause for the occurrence as stated by P.W.4 is that the occurrence took place on account of the carelessness of the driver of the lorry. What exactly was the carelessness was not spoken to by P.W.4. The scene mahazar shows that the occurrence took pace on the National Highway which has a width of 5.90 metres for its tarred portion. It is a straight road in which the exact spot where the occurrence took place was at a point 60 cms to the east of the western tarred edge. The lorry driven by the revision petitioner was proceeding from south to north and hence the scene of occurrence is on the proper side Crl.R.P. NO. 74 of 1999 -:4:- of the revision petitioner. It is in evidence that the deceased lady was seen wandering in that locality wearing only a blouse and a brassier which were recovered at the time of inquest and produced as MO1 series. In the absence of any evidence attributing any rash or negligent act on the part of the revision petitioner merely because a woman was knocked down from the tarred portion of the road by the lorry which was proceeding on its proper side, it cannot lead to an inference that the occurrence took place on account of the rash and negligent act of the driver. It is particularly so when the occurrence took place on the national highway which is a straight wide road. It is nobody's case that the lorry was driven at a high speed. Even if any witness had spoken that the lorry was driven at a high speed, that by itself cannot constitute rashness or negligence unless it is narrow road or there was a crowd of persons requiring the driver to reduce speed. It is not in evidence that the road was crowded or that there were row of other vehicles or pedestrians on the road. A motor vehicle is intended to be driven in a high speed unless there are circumstances suggesting that driving the vehicle at high speed is likely to result in the vehicle either dashing against other vehicles or knocking down pedestrians on the road. P.W.1 who is a Panchayath member stated that the deceased was wandering for the last a few days in the same locality. His statement has been corroborated by the Circle Inspector P.W.17 who was in-charge of the investigation of the Crl.R.P. NO. 74 of 1999 -:5:- case. Such being the position the occurrence was a shear accident for which no act of rashness or negligence can be attributed to the revision petitioner going by the evidence on record. Even P.W.4 who is the solitary eye witness to the occurrence did not elaborate as to what exactly was the act of carelessness on the part of the driver. Under these circumstances, the conviction entered and the sentence passed by the courts below overlooking these vital aspects of the matter cannot be sustained and are accordingly dislodged. The revision petitioner is acquitted of the offences punishable under Section 279 and 304 A I.P.C. He shall be set at liberty forthwith. This Revision is allowed as above. V.Ramkumar, Judge. ani. Crl.R.P. NO. 74 of 1999 -:6:- V. RAMKUMAR, J. ````````````````` Crl.R.P. NO. 74 of 1999 ````````````````` Dated: 7-8-2008 O R D E R