Point of Law: Claim the benefit of provisions of Section 80, it has to be shown: (1) that act in question was without any criminal intention or knowledge; (2) that act was being done in a lawful manner by lawful means; and (3) that the act was being done with proper care and caution.

JUDGMENT :

This appeal arises from the judgment of conviction and sentence dated 30.12.2005 passed by the Additional District and Sessions Court, Fast Track (Adhoc)-II, Kottayam. The appellant/accused No.1 faced trial for the alleged commission of the offences punishable under Sections 304 and 395 of the Indian Penal Code.

2. The appellant was accused No.1. He was convicted under Section 304 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a term of five years. He was acquitted of the offence under Section 395 of IPC. Accused Nos.2 to 5 were acquitted of the offences alleged.

3. The prosecution case unfolded during trial is as follows: The jeep bearing No.KL 5A-3849 was subjected to a hire-purchase agreement. One Sri.Gorphy Gabriel was in possession of the jeep.

The appellant and the other accused, on 13.12.2003 at 7.20 p.m., repossessed the vehicle at the instance of the hirers. The vehicle was taken from Cholathalam-Mannam road. The appellant/accused No.1 was driving the vehicle. He drove the vehicle in a rash and negligent manner. When the vehicle reached Kavali junction, the appellant/accused No.1, with the knowledge that he was likely to cause the death of the persons assembled there, drove the vehicle over the rocks and wooden logs placed across the road to prevent the vehicle from moving further and hit Sri.Kurian Mathew, who later succumbed to the injuries.

4. The prosecution examined PWs 1 to 18 and proved Exts.P1 to P15.

5. After the closure of the prosecution evidence, the statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence, they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. On the side of the defence, Exts.D1 to D6 were marked. At the closure of the trial, the appellant/accused No.1 was convicted under Section 304 of IPC and acquitted of the offence under Section 395 of IPC.

6. Heard Sri. C.S.Manilal, the learned counsel appearing for the appellant/accused No.1 and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent.

7. The learned counsel for the appellant contended that the prosecution failed to establish culpable homicide as alleged.

8. The learned Senior Public Prosecutor has countered and submitted that the prosecution could establish the charge against accused No.1.

9. The case of the prosecution is that the appellant/accused No.1 drove the vehicle involved in this case along Mundkayam-Poonjar road in a rash and negligent manner with the knowledge that he was likely to cause the death of the persons standing on the road at Kavali Junction and hit Sri.Kurian Mathew, who succumbed to the injuries.

10. The Trial Court held that accused No.1 had driven the jeep at high speed and recklessly, unmindful of the consequences and in spite of seeing the hurdle on the road, he drove the jeep over it and thereby caused it to hit Kurian Mathew, the deceased.

11. The incident occurred on 13.12.2003 at about 7.20 p.m. Admittedly, accused No.1 was driving the vehicle on the Mundkayam-Poonjar road. It has come out in evidence that at Kavali junction, the place of occurrence, as instructed by PW2 some persons placed wooden logs and rocks across the road with the intent to obstruct the vehicle from moving further.

12. The prosecution relied on the oral evidence of PWs 2, 3 and 17 to establish its case against accused No.1. PW2 gave evidence that the appellant was driving the vehicle in a rash and negligent manner and hit against the rocks placed on the road. PW3 also has spoken about the rash and negligent driving of the vehicle by accused No.1. The evidence regarding the rashness and negligence attributed against accused No.1 was proved to be omission amounting to contradiction as provided in the explanation to Section 162 Cr.PC. The evidence of PWs 2 and 3 is, therefore, not reliabl