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2020 Supreme(Ker) 1034
IN THE HIGH COURT OF KERALA AT ERNAKULAM
N.ANIL KUMAR, J.
PRAMODAN, S/O.SANKUNNI - APPELLANT
Vs.
THE STATEOF KERALA REP.BY THE SUB INSPECTOR OF POLICE, PAYYOLI POLICE STATION, MELADY AMSOM AND DESOM, KOZHIKODE DISTRICT. - RESPONDENT
Crl.Rev.Pet.No.3989 OF 2009
Decided on : 05-08-2020
For the Appellant : SRI.P.T.MOHAN KUMAR, SRI.A.RANJITH NARAYANAN, SRI.S.K.SAJU
For the Respondent: SR.PUBLIC PROSECUTOR SRI.M.S.BREEZ
The central legal point established is the requirement of positive evidence to prove liability for a specific offense, and the court's reliance on oral and medical evidence to uphold convictions.
Headnote:
accused - Criminal Law - Indian Penal Code, Section 279, Section 338, Section 304(A) - The court upheld the conviction under Sections 279 and 338 of the IPC, but set aside the conviction under Section 304(A) of the IPC due to lack of evidence proving the accused's liability for the death of the deceased. The court modified the sentence for the upheld convictions.
Fact of the Case:
The accused was convicted for rash and negligent driving resulting in a collision with a motorcycle, causing injuries to the riders. One of the riders succumbed to the injuries. The accused appealed the conviction.
Finding of the Court:
The court set aside the conviction under Section 304(A) of the IPC due to lack of evidence proving the accused's liability for the death of the deceased. The court upheld the conviction under Sections 279 and 338 of the IPC and modified the sentence.
Issues: Liability of the accused for the death of the deceased, sufficiency of evidence for the upheld convictions, and modification of the sentence.
Ratio Decidendi: The court emphasized the need for positive evidence to prove the accused's liability for the death of the deceased. Lack of direct evidence led to setting aside the conviction under Section 304(A) of the IPC. The court considered the oral and medical evidence to uphold the convictions under Sections 279 and 338 of the IPC.
Final Decision: The court set aside the conviction under Section 304(A) of the IPC, acquitted the accused, and modified the sentence for the upheld convictions.
ORDER :
The revision petitioner is the accused in CC No.388/2006 on the file of the Judicial First Class Magistrate, Payyoli alleging commission of offences punishable under Sections 279, 338 and 304(A) of the Indian Penal Code.
2. By judgment dated 12.03.2008, the learned Judicial First Class magistrate, Payyoli convicted and sentenced the accused to undergo simple imprisonment for a period of three months for the offence punishable under Section 279 of IPC, further to undergo simple imprisonment for a period of six months for the offence punishable under Section 338 of IPC and further to undergo simple imprisonment for a period of one year and also sentenced to pay a fine of Rs.1,000/-, in default of payment of fine to undergo simple imprisonment for a period of three months for the offence punishable under Section 304(A) of IPC. The above sentences were ordered to run concurrently. Feeling aggrieved, the accused preferred Crl.Appeal Crl.Rev.Pet.No.3989 OF 2009 3 No.311/2008 before the Sessions Court, Kozhikode. By judgment dated 22.09.2009, the learned Additional Sessions Judge, Fast Track, (Adhoc-1), Kozhikode, to whom the case was made ever for hearing, dismissed the appeal confirming the conviction and sentence imposed by the trial court. Feeling aggrieved, the accused is before this Court in revision.
3. The prosecution case, in brief, is as hereunder:-
On 18.03.2006 at 8 a.m, PW4 as pillion rider and his father, Narayanan Nair as rider were travelling in a motorcycle bearing registration No.KL 11 T 8700 from Kozhikode to Vadakara and when the motorcycle reached at Kalarippadi, the accused drove a tanker lorry bearing registration No. KL 3 E 450 coming in the opposite direction in a rash and negligent manner so as to endanger human life collided with the motorcycle and as a result of the collision, both PW4 and his father Narayanan Nair sustained grievous injuries. Immediately after the collision, both PW4 and his father were shifted to the Baby Memorial Hospital at Kozhikode. While undergoing treatment, PW4's father Narayana Nair succumbed to the injuries sustained to him.
4. For the occurrence in question, PW4 lodged Ext.P3-FIS before PW10, the Head Constable of Payyoli Police Station. On the strength of Ext.P3-FIS, PW10 registered initially Ext.P11-FIR for the offences Crl.Rev.Pet.No.3989 OF 2009 4 punishable under Sections 279 and 338 of IPC as Crime No.98/2006 of the Payyoli Police Station.
5. During the investigation, PW4's father died. Hence, the Investigating Officer filed report before the court to incorporate Section 304(A) of IPC as well. PW13, the Sub Inspector of Payyoli Police Station recorded the statement of the witnesses, completed the investigation and filed final report before the court.
6. During the trial, PWs 1 to 13 were examined and marked Exts.P1 to P13 on the side of the prosecution. On closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) of Cr.P.C. His defence is one of total denial. DW1 was examined on his side.
7. PW8, Doctor Sivakumar examined the deceased on 18.03.2006 at 9 a.m while he was working as Chief Medical Officer at the Baby Memorial Hospital, Kozhikode and issued Ext.P8 wound certificate noting the following injuries:-
1. Crash injury right lower limb
2. fracture right femur
3. fracture both bones right leg
4. Circulatory shock
He also stated that while undergoing treatment, the patient expired on 15.04.2006. On the next day at 1 p.m, PW8 examined PW4 and issued Crl.Rev.Pet.No.3989 OF 2009 5 Ext.P9 wound certificate noting the following injuries:-
1. Fracture right tibia
2. soft tissue injury right leg and right knee
8. History and alleged cause of history stated in Exts.P8 and P9 wound certificates are stated as hit by a lorry while travelling on a motorcycle at Kalarippadi near Payyoli on 18.03.2006 at about 9 a.m. PW4 underwent treatment as an in-patient from 19.03.2006 and he was discharged on 31.03.2006. It is stated in Ext.P9 wound certificate t
