The court established that the failure to conclusively link rash driving to death precludes a conviction under Section 304A IPC.

This Revision Petition is filed by the appellant in Crl.Appeal No.35/2013 on the file of the Additional Sessions Judge–I, Thiruvananthapuram against the Judgment dated 18.08.2016 confirming the conviction and sentence passed by the Judicial First Class Magistrate – I, Varkala, under Section 279 and 304 A IPC . The Prosecution case is that on 22.04.2009, at 7.15 pm, the Revision Petitioner being the driver of the car KL-2/X-7174 has driven the same in a rash and negligent manner so as to endanger a human life through the NH Road, hit down one Janardhana Kurup, aged 80 years causing severe injuries and while he was under treatment, he succumbed to the injuries on 13.05.2009 at 6.45 pm.

2.The accused was charged with the offence under Section 279 , 337, 338 and 304(A) IPC . On the basis of the evidence adduced by the Prosecution and the oral testimonies of PWs 1 to 8, and the documents marked as Exts.P1 to P10, the trial court found the Revision Petitioner guilty, convicted and sentenced him under Sections 379, 337, 338 and 304A . In appeal, the First Appellate Court confirmed the conviction and sentence under and 304A of the alone. The punishment imposed under is fine of Rs.1000/- and in default, to undergo simple imprisonment for one month. Under Sec. 304(A) , he was sentenced to undergo simple imprisonment for 6 months. Aggrieved by the above judgment of the First Appellate Court, this Revision was filed. Now the point that arise for consideration is the following.

“Whether the conviction of the Revision Petitioner as confirmed by the First Appellate Court is liable to be interfered with?”

3.Heard the learned counsel for the appellant Sri.G.Radhakrishnan and the learned Public Prosecutor, Smt.Maya. It is argued by the learned counsel for the Revision Petitioner that the Prosecution has miserably failed to prove the cause of death of the victim and as such, the offence under Section 304A was not proved in this case. Further, according to him, the solitary testimony of PW3 is not enough to prove the offence under Sec.279 IPC also. On the other hand, the learned Public Prosecutor would argue that the Prosecution has succeeded in proving offence under Sec.279 and 304(A) .

4.Upon going through the evidence of the Prosecution witnesses, it appears that the Doctor who conducted the postmortem examination of the body of deceased was not examined and the postmortem certificate was not tendered or marked in evidence. Even then, the trial court and the First Appellate Court found that the Prosecution has succeeded in proving the cause of death through the evidence of PWs 1 to 3. The reasoning given by them is that the evidence of PWs 1 to 3 to the effect that the deceased Janardhana Kurup died due to the injuries sustained in the accident, was not cross-examined by the appellant. It is true that PWs 2 & 3 are occurrence witnesses and PW1 is the first informant. PW3 deposed that he has seen the incident in which Janardhana Kurup sustains sever injuries on 22.04.2009. Even as per the Prosecution case, Janardhana Kurup died while under treatment on 13.05.2019, ie, 21 days after the incident.

5.The learned counsel for the Revision Petitioner relying upon the decision of the Madras High Court in K.K.Mani Vs. The State reported in KHC 2009 0 5895 , would argue that even in a case where the post-mortem certificate was marked and the doctor is not examined, it is not sufficient to prove the cause of death.

6.It is true that in order to attract the offence under Sec.304(A) IPC , the Prosecution has to prove that the cause of death of the victim was on account of the injuries sustained in a rash and negligent act done by the accused. In the instant case, since the Doctor was not examined and the Post-mortem certificate was not true, the cause of death of Janardhana Kurup could not be proved. The finding of the trial court as well as the 1st Appellate Court that since the Revision Petitioner has not cross examined PWs 1 to 3 regard