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2012 Supreme(Online)(KER) 19606
HIGH COURT OF KERALA
P.S.GOPINATHAN, J
ALFONSA MONTHERO – Appellant
Versus
STATE OF KERALA – Respondent
CRIMINAL REVISION PETITION 473/2002
Negligence resulting in death is sufficient for conviction under IPC, supported by eyewitness accounts and absence of mechanical failure.
Headnote:
Negligence - Criminal Law - IPC Section List - The court affirmed the conviction for negligent driving leading to death, interpreting sections on rash driving and causing death by negligence, ultimately upholding findings based on eyewitness testimony and evidence of no mechanical failure.
Fact of the Case:
A lorry operated by the revision petitioner overturned, leading to the death of its cleaner and injuries to another passenger. Charges of negligent driving were brought under relevant sections of the IPC.
Finding of the Court:
The evidence confirmed the revision petitioner was the driver and acted negligently, as supported by consistent testimonies and the absence of mechanical issues with the lorry.
Issues: Whether the revision petitioner was driving the lorry with negligence that caused the accident resulting in death and injuries.
Ratio Decidendi: The courts below correctly concluded negligence based on credible eyewitness accounts and found no mechanical defect, affirming the conviction under IPC provisions.
Final Decision: Conviction upheld, sentence for Section 304 A IPC modified to four months imprisonment and a fine of Rs. 5000.
O R D E R
At 4.30 p.m on 18.4.1989, at the southern end of the bridge at Feroke along Feroke-Kozhikode public road, a lorry bearing Reg.No.CNG 4423 driven by the revision petitioner, loaded with copper sulphate owned by PW1, overturned at the middle of the road. As a result, Devadasan, the cleaner of the lorry, who was sitting in the lorry, fell on the road over whom the lorry fell. Devadasan succumbed to the injuries which he sustained. PW1, who was also inside the lorry, sustained simple injuries. The Circle Inspector of Police, Meenchanda, on getting information, registered a case as Crime No.94/1989. After investigation, charge sheet accusing offence under Section 279, 337 and 304 A IPC was filed before the Chief Judicial Magistrate, Kozhikode.
2. Responding to the process issued, revision petitioner entered appearance and pleaded not guilty when the particulars of the offences were read over and explained. Therefore, he was sent for trial. On the side of the prosecution, Pws 1 to 10 were examined and Exts.P1 to P6 were marked. After closing : 2:
evidence for the prosecution, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure. He took up a plea of total innocence. No defence evidence was let in. The learned Magistrate, on appraisal of the evidence, arrived at a conclusion of guilty. Consequently, the revision petitioner was convicted and sentenced to simple imprisonment for three months each under Section 279 and 337 IPC; and simple imprisonment for 6 months and a fine of Rs.2,000/- under Section 304 A IPC with a default sentence of simple imprisonment for three months.
3. Aggrieved by the above conviction and sentence, the revision petitioner preferred Crl.A.No.187/1991. By the judgment dated 5.6.1995, the learned Sessions Judge, while confirming the conviction and sentence, dismissed the appeal. Assailing the legality, correctness and propriety of the above conviction and sentence, the revision petition was filed with a delay of 2394 days. Condoning the delay, the revision petition was admitted.
4. I have heard Sri. Sutheesh Menon, the learned counsel appearing for the revision petitioner and Sri. Noushad Thottathil, the learned Government Pleader.
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5. The fact that lorry fell aside at the middle of the road while on wheels and as a result, Devadasan, the cleaner died and PW1 sustained injuries is not disputed. Ext.P2 postmortem certificate issued by PW3 would show that Devadasan died due to haemmerhage and shock due to the injury sustained. The evidence of PW1 coupled with the evidence of PW9 and Ext.P4 wound certificate would show that PW1 had sustained injuries. The evidence of PW5 supported by Ext.P3 would show that the lorry had no mechanical defect. Therefore, mechanical defect cannot be attributed as the cause of accident.
6. The facts being the above, the question then remains is whether the revision petitioner was the driver of the lorry and whether there was any rashness or negligence on his side.
7. PW1, the owner of the goods, would depose that the lorry was loaded with copper sulphate and was transported from Thiruvananthapuram and that the lorry fell aside at the middle of the road at Feroke. According to PW1, revision petitioner was the driver of the lorry and over speed of the vehicle caused the accident. PW2, a local, who had been to the : 4:
road side at the early hours for answering the call of nature, had witnessed the incident. He would depose that the revision petitioner was the driver of the lorry and that the accident occurred because of his negligence. The courts below believed the evidence of PWs 1 and 2 and arrived at a finding that the revision petitioner was the driver of the lorry and his negligence caused the accident. Before the appellate court it was argued that as per the trip sheet Alphonsa was the driver and the name of the revision petitioner was Alphonsa Mandero. Curiously the trip sheet was not marked in evidence. There is nothing suggested to the i
