Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Ker) 519

IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
Pauly S/o Kochuvareed – Petitioner
Versus
State of Kerala – Respondent
Crl. Rev. Pet. No. 36 of 2016
Decided On : 11-08-2023

Advocates:
Advocate Appeared:
For the Petitioners: S. Sreekumar, P. Martin Jose, M.A. Mohammed Siraj, P. Prijith, Thomas P. Kuruvilla.
For the Respondent: M.P. Prasanth.

Point of Law: Purpose of a prior test identification is to test and strengthen trustworthiness of that evidence.

Headnote:
Code of Criminal Procedure, 1973 - Sections 313, 397 and 401 - Indian Penal Code, 1860 - Sections 279, 337 and 304A - Motor Vehicles Act, 1988 - Sections 134(a), 187 - Accident - Rash and negligent manner - Petitioner assails judgment rendered by Judicial First Class Magistrate Court-I, as well as judgment in Crl. Appeal on files of First Additional Sessions Court - Crucial eye witnesses PW2 and PW3 had not given statement to police about manner in which they identified accused at time of accident or soon after occurrence.
Findings of the Court:
Evidence given by PW2 and PW3 before trial court for first time, to be read as an improvement and said version cannot be believed to hold that identification of accused at volition of PW2 and PW3 is believable and reliable, without corroboration by test identification parade - If so, corollary is that evidence adduced by prosecution to prove identity of accused in this case is insufficient to hold that accused was driver of offending lorry at time of accident - Evidence of PW15, brother of R.C owner stating that it was accused who was entrusted to drive lorry on date of accident alone is not sufficient to hold that accused was driver at time of accident, without substantive evidence as that of eye witnesses - Conviction and sentence imposed by trial court as well as appellate court on revision petitioner/accused without properly identifying accused as person, who drove offending lorry at time of accident, are liable to be set aside.
Result: Revision allowed.

ORDER :

1. This Revision Petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure (‘Cr.P.C.’ hereinafter) and the revision petitioner is the sole accused in C.C. No. 352/2012 on the files of the Judicial First Class Magistrate Court-I, Vaikom. Respondent herein is the State of Kerala. The revision petitioner assails judgment in C.C. No. 352/2012 dated 07.05.2014 rendered by the Judicial First Class Magistrate Court-I, Vaikom as well as the judgment in Crl. Appeal No. 128/2014 on the files of the First Additional Sessions Court, Kottayam dated 28.09.2015.

2. Heard the learned counsel for the revision petitioner/accused and the learned Public Prosecutor appearing for the State.

3. The precise allegation of the prosecution is as under:

The prosecution case is that at about 7.30 p.m. on 12.05.2012 the accused herein had driven a tanker lorry bearing Registration No. KL63/5206 through Thalayolaparambu - Peruva Public Road in a rash and negligent manner so as to endanger human life. While driving so, the tanker lorry dashed against an Activa Scooter bearing Registration No. KL36B/2322, ridden by one Babu along with a pillion rider ‘Anandu’. The prosecution allegation is that as a result of the rash and negligent driving of the accused ‘Babu’ the rider of the Motorcycle, died and the pillion rider ‘Anandu’ sustained injuries and thereby the accused committed offences punishable under Sections 279, 337 and 304A of the Indian Penal Code (‘IPC’ for short hereafter) as well as 134(a) r/w Section 187 of the Motor Vehicles Act (‘M.V. Act’ for short hereafter).

4. The learned Magistrate Court took cognizance of the matter and secured the presence of the accused for trial. Later on complying the formalities before trial, the accused was tried. During trial, PWs 1 to 15 were examined and Exts.P1 to P12 were marked. When the prosecution evidence was completed, the accused was questioned under Section 313 of the Code of Criminal Procedure and provided opportunity to him to adduce defence evidence, but no defence evidence adduced.

5. Thereafter, the Magistrate Court appraised the evidence after hearing both sides and convicted the accused for the offences punishable under Sections 279, 337 and 304A IPC as well as 134(a) r/w Section 187 of the Motor Vehicles Act and sentenced the accused as under:

“The accused is sentenced to undergo simple imprisonment for a period of 6 (Six) months and to fine of Rs.1,000/- of the offence u/s.279 of IPC. In default of fine he shall undergo simple imprisonment for a period of 1 (one) month. He is again sentenced to undergo simple imprisonment for a period of one month and to fine of Rs.500/- of the offence u/s.337 of IPC. In default of fine he shall undergo simple imprisonment for a period of 15 days. He is against sentenced to undergo simple imprisonment for a period of 2 (Two) years and to fine of Rs.10,000/- of the offence u/s.304-A of IPC. In default of fine he shall undergo simple imprisonment for a period of 4 (four) months. He is further sentenced to fine of Rs.500/- u/s.134(a) r/w 187 of M.V. Act. In default of fine he shall undergo simple imprisonment for a period of 10 days. If the fine amount is remitted Rs.1,000/- shall be given to PW2 as compensation u/s.357(1) Cr.P.C. All the substantive sentence shall run concurrently. Hence the licence of the accused is hereby cancelled. He is disqualified from driving heavy vehicles for the period of 6 months from today.”

6. The accused challenged the conviction and sentence imposed by the trial court before the Sessions Court, Kottayam. The learned First Additional Sessions Judge on re-appreciation of evidence, dismissed the appeal confirming the conviction as well as the sentence, vide judgment dated 28.09.2015.

7. While impeaching the veracity of the concurrent verdicts of conviction and sentence, it is argued by the learned counsel for the revision petitioner that the finding of the courts below that there was sufficient light available at

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