Kurian @ Boban vs The State of Kerala

N.K. Balakrishnan, J.—The petitioner herein was concurrently held guilty of the offences under sections 304A, 279 and 337 of IPC and also u/s 134(a)(b) r/w 187 of M.V. Act. He was sentenced to undergo rigorous imprisonment for one year for the offence u/s 304A of IPC. For other offences he was sentenced to pay fine.

The incident took place on 29.5.1994 at about 6.45 pm. The tempo van which was alleged to have been driven by the petitioner was proceeding from east to west while the motor cycle ridden by the deceased with his sister as pillion rider was proceeding from west to east. It is alleged that when it reached the place of incident, the right front side of the tempo van hit the right front portion including the handle of the motor cycle. As a result of the impact, the motor cycle fell on the metal heaped up at the side of the road and the rider of the motor cycle succumbed to injuries sustained in the accident.

After conducting investigation charge sheet was laid against the petitioner alleging offences as mentioned above.

PWs 1 to 12 were examined and Exhibits P1 to P16 were marked. M.O.1, broken pieces of the indicator was also identified and marked. The learned Magistrate accepted the prosecution version and found the petitioner guilty and convicted and sentenced as mentioned above.

The learned Sessions Judge made a re-appraisal of the evidence and confirmed the conviction and sentence passed by the learned Magistrate. The learned counsel for the Revision petitioner would submit that there is no legal evidence to hold that it was the petitioner who drove the tempo van at the relevant time.

PW1, who lodged Exhibit P1 F.I. Statement was not an eye witness to the occurrence. PW2, who was stated to be a relative and who claimed to have seen the incident, was proceeding from east to west along the northern side of the road. He deposed that on hearing the sound he looked backward and then he saw the accused as the driver of the tempo van. After about 2 or 3 seconds the tempo van hit the motor cycle which was ridden by the deceased, who is the brother of PW3.

It is vehemently argued by the learned counsel for the petitioner that it was highly improbably that a person could see the person driving the tempo van even if that person looked backwards. But the learned Public Prosecutor would submit that since the driver was a person known to PW2, there was no difficulty for him to identify the petitioner as the driver of the tempo van.

It is further submitted by the learned Public Prosecutor that PW3, who is the injured and who was the pillion rider, has also testified before the Court that the accused was known to her and that it was he who drove the tempo van at the relevant time. It is also seen that the accused was actually not present before the Court when PW3 was examined. But the learned counsel submits that since the accused was a relative of PW3 and since he was known to her earlier, the absence of the accused on the date of examination cannot be of much relevance.

The evidence given by PWs 2 and 3 was accepted by the learned Magistrate and that was accepted by the Appellate Court also. It is submitted by the learned counsel for the petitioner that though the incident took place on 29.5.1994, a letter was sent by the Circle Inspector of Police, (PW11), to the owner of the tempo van asking him to furnish the name and address of the driver of the said vehicle to which the petitioner herein was stated to have furnished a reply stating that he was the owner cum driver of the vehicle. The learned counsel has pointed out the unacceptability of Exhibit P14 report.

If the accused was known to PWs 2 and 3 and when his name was already furnished in the F.I.R., which reached the Court on 30.5.1994, there was no reason why a letter should be sent on the next day so as to get particulars of the person who drove the vehicle on the relevant time. It seems PW11, the police officer had not gone through the F.I.R. and other papers prior to sending a request to the owner of the vehicle. It is not necessary to rely upon Exhibit P14 report since even in the F.I.S., which reached the Court on 30.5.1994, it was stated that the accused was the driver of the tempo van.

The learned counsel for the petitioner would also draw the attention of the Court as to the unacceptability of Exhibit P13(a). Exhibit P13 is the G.V.R. The pages earlier to the date of occurrence were of the dates upto 28.5.1994, but the entry of the relevant date is shown as 29.4.1994. It seems the Investigating Officer has not cared to go through Exhibit P13(a). The learned Public Prosecutor would submit that it is seen to be a mistake committed when Exhibit P13 (a) was furnished, probably to create a confusion also with regard to the date. But still PW11 should have gone through it and found out that it was corrected and certified by the person who prepared it.

The learned counsel for the petitioner would submit that the entries in Exhibit P13 were made only to suit the prosecution case to fasten criminal liability on the petitioner, for otherwise, there was no necessity of creating such entries in Exhibit P13 G.V.R. Much can be argued pointing out the unacceptability of Exhibit P13 and P13(a). The Court below has placed reliance mainly on evidence given by PWs 2 and 3, who found the accused, driving the tempo van at the relevant time. The evidence given by PWs 2 and 3 was scanned carefully. I find no reason to hold otherwise.

Next question is with regard to the negligence attributed against the petitioner. The total width of the tar road is 3.75 mts. The place of incident is shown as 3.25 mts. to the north of the southern right of the tar road; which would mean that the tempo van was proceeding along the wrong side crossing the notional mid line. The learned counsel for the petitioner would submit that since there was still about 50 cm along the northern side, it was possible for the motor cycle to proceed along the northern side and so the driver of the tempo van could have thought that the rider of the motor cycle would use the remaining part of the road to go ahead towards east. But no explanation was offered by the accused as to how his tempo van happened to be far to the north of the mid line. But the learned counsel would submit that there is no guarantee that the place of incident was correctly noted in Exhibit P4 by the Sub Inspector of Police who prepared the same.

That officer, who prepared the scene mahazar, was not examined. The person who was stated to have shown the scene mahazar was also not examined. Therefore, the learned counsel for the petitioner submits that based on the scene mahazar it cannot be said that the accused was proceeding through the wrong side or at any rate the driver had gone beyond the notional mid line. But the learned Public Prosecutor would submit that no effective cross examination was there when the investigating officer was in the witness box as to how the place of incident was fixed. Indications are seen in the scene mahazar as to how the place of incident was fixed. Since those aspects were not seriously assailed before the trial Court. The findings entered by the learned Magistrate was confirmed by the appellate Court. I find no reason to upset that finding also.

It is argued by the learned counsel for the petitioner that there is no case for the prosecution that the accused was drunk or that he drove the van so rashly or negligently. But the evidence would show the accused was riding along the wrong side of the road and the front right side of the tempo van hit the right front portion of motor cycle. Since the accident spot fixed by the investigating officer was not seriously assailed, it has to be found that there was negligence on the part of the driver of the tempo van. There was no case for the accused that any other vehicle was there on his front or any hindrance was there in his driving the tempo van along the southern side of the road.

The accused being the driver of the tempo van was expected to take reasonable care to avert a possible accident/danger. Going by the evidence available on record, I find that the vehicle was driven in a rash and negligent manner endangering human life. The fact that there was no head on collision is not a reason to say that there was no rashness or negligence as alleged by the prosecution. Admittedly, the deceased who was the rider of the motor cycle succumbed to the injuries sustained in the accident. PW3, the sister who was the pillion rider had sustained simple injuries. Hence the conviction of the petitioner for offences u/s 279, 337 and 304A of IPC is only to be confirmed.

For the offence u/s 304A, the petitioner was sentenced to undergo rigorous imprisonment for one year. The incident was of the year 1994. The counsel for the petitioner submits that more than 17 years have elapsed and that the petitioner has now stopped driving the vehicle also. But since the negligent driving has resulted in the death of a person, the substantive sentence cannot be avoided. However, substantive sentence awarded for the offence u/s 304A shall stand reduced to rigorous imprisonment for six months. No modification is required with regard to the sentence passed on other counts.

In the result this Criminal Revision Petition is disposed of as stated below.

The conviction if confirmed. The substantive sentence awarded for the offence u/s 304A IPC is reduced to R.I. for 6 (six) months. The sentence awarded for other offense is confirmed. The learned Magistrate will execute the sentence forthwith.