IMPORTANT POINT
Driving under the influence of alcohol and on the wrong side of the road constitutes culpable homicide not amounting to murder, justifying conviction under IPC Section 304 Part II.

JUDGMENT :

(C.S. Sudha, J.)

Crl. Appeal No.267/2016 under Section 374(2) Cr.P.C. has been filed by the accused in S.C.No.942/2013 on the file of the Court of Session, Kozhikode, challenging the conviction entered and sentence passed against him for the offence punishable under Section 304 Part II IPC. Crl.Appeal (V) No.363/2017 has been filed by PWs.2 and 3, the wife and son of the deceased, aggrieved by the compensation awarded and the question of sentence awarded to the accused.

2. The prosecution case is that on 06/05/2013 at 18:00 hours, the deceased Shaji Kumar was riding motorbike bearing registration No.KL-11/AN-2794 along with PWs 2 and 3, his wife and son respectively as pillion riders along the Thadambattuthazham – Kannadikkal road, which road is lying in the east-west direction. The deceased and PWs.2 and 3 were moving from the west to east. When they reached the place by name, Kannadikkal - Policha Peedia, car bearing registration No.KL-11/R-5809 driven by the accused came from the opposite direction, that is, from east to west through the wrong side of the road and dashed against the motorbike resulting in all three of them being thrown on to the road. Shaji Kumar died on the spot. PWs 2 and 3 sustained injuries. The accused had driven the car under the influence of alcohol and through the wrong side with the full knowledge that his act was likely to cause death. Hence, as per the final report, the accused was alleged to have committed the offences punishable under Section 337, 304 Part II IPC and Section 185 of the Motor Vehicles Act, 1988 (the MV Act).

3. Based on Ext.P1(a) FIS of PW1, the Sub Inspector, City police station, Kozhikode, recorded on 06/05/2013 at 18:30 hours, Crime No.1050/2013, that is, Ext.P1 FIR, was registered. Investigation was conducted by PW14, the then Circle Inspector, Kozhikode, who after completing the investigation filed a final report alleging the commission of offences punishable under the aforementioned Sections.

4. On appearance of the accused, the jurisdictional magistrate after complying with the necessary formalities contemplated under Section 209 Cr.P.C. committed the case to the Court of Session, Kozhikode, where the case was taken on file as S.C. No.942/2013. Thereafter, the case was made over to the Additional Session Judge-III, Kozhikode, for trial and disposal. On 19/08/2015 a charge for the offence of culpable homicide not amounting to murder punishable under Section 304 Part II IPC, was framed, read over and explained to the accused to which he pleaded not guilty.

5. On behalf of the prosecution, PWs.1 to 17 were examined and Exts.P1 to P15 were got marked in support of the case. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against him in the evidence of the prosecution. To all the questions, the accused answered that he does not know and also submitted that he is innocent.

6. As the trial court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. No oral or documentary evidence was adduced by the accused.

7. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused guilty of culpable homicide not amounting to murder and proceeded to sentence him to rigorous imprisonment for three years and to a fine of Rs.25,000/- and in default to imprisonment for one year under Section 304 Part II IPC. Set off under Section 428 Cr.P.C. for the period from 06/05/2013 to 09/05/2013 has been allowed. The fine amount if realized has been directed to be paid to PW2 as compensation. Aggrieved, the accused has come up in appeal.

8. It was quite persuasively, strenuously and vehemently argued by the learned senior counsel for the appellant/accused that the trial court committed a gross mistake in finding th