Lavi.A.O.Vs Manikandan, S/O. Velayudhan

S.Manu, J

Accused in C.C.No.796/2019 pending before the Judicial First Class Magistrate's Court, Wadakkanchery has approached this Court in this Crl.M.C. praying to quash Annexure B final report and all further proceedings in the case.

Allegation leveled against the petitioner is that on 19.3.2019, at about 11 am., while he was driving a lorry bearing registration No.KL-48-L-1281, on account of the same getting entangled with a rope which was tied to a mango tree, from which the deceased was plucking mangoes, the deceased fell down and suffered injuries to which he later succumbed. The crime was registered on the basis of statement furnished by one Manikandan, S/o.Velayudhan on 19.3.2019. The FIS reveals that the deceased, Manikandan, S/o.Karappan was engaged for plucking mangoes from a mango tree in the property of one Jose on 17.03.2019. He had tied a rope on his hand to put down the plucked mangoes collected in a basket without damage. At about 11 am, he was about to climb down from the tree to have food. Then the lorry driven by the accused in a rash and negligent manner passed through the road and the rope hanging from the tree got entangled on the left side mirror of the lorry. Manikandan fell down from the tree and he was taken to Govt.Medical College Hospital, Thrissur. His condition became serious and on 19.03.2019 at about 00:30 hours he expired.

The FIR was lodged under Section 174 of Cr.P.C. on 19.3.2019. The police conducted investigation and filed Annexure B final report alleging the offences under Sections 279 and 304A of the IPC against the petitioner. In the final report it has been alleged that the petitioner had driven the vehicle in high speed and in a rash and negligent manner. CW1 is the only eye witness as per the final report. According to him, the accused had driven the vehicle in high speed and in a negligent manner. He also stated that cause of the accident was the speed and rash and negligent driving by the petitioner.

The learned counsel for the petitioner submitted that admittedly the crime was registered in the instant case under Section 174 of Cr.P.C. alone. There was no complaint from any quarter at the inception imputing the applicant with any criminal offence. Apparently the final report has been submitted in the instant case imputing the petitioner with the offences stated above only to facilitate the legal heirs of the deceased in their MACT claim. There is absolutely no oral or documentary evidence in support of the allegations. Further as a proposition of law it is well settled that in order to prosecute a person for an offence under Section 304A of the IPC, the act complained of must be the direct and proximate cause of the result that has ensued. It is also contended that the FIR was registered under Section 174 of Cr.P.C. as there was no case of any act of negligence on the part of the petitioner. It is also submitted that CW2 is the only witness cited to prove the occurrence. Even if his statement is accepted in total, same is insufficient to make out the offences under Sections 279 and 304A of the IPC. According to the learned counsel for the petitioner, the unfortunate accident was not on account of any rash and negligent act of the petitioner as evident from the FI Statement and other materials. Therefore, he pleaded that the prosecution against the petitioner is undoubtedly abuse of the process of the court.

Learned counsel appearing for the 1st respondent and the learned Public Prosecutor were also heard.

Learned counsel for the 1st respondent submitted that the police conducted proper investigation and concluded that the accident was on account of rash and negligent driving by the petitioner. He argued that the materials available with the final report clearly show that the prosecution proceedings against the petitioner are sustainable and therefore quashing of the proceedings will not be justified. The learned Public Prosecutor also made submissions in the same lines.

It is relevant to note that the deceased had tied a rope on his hand and the said rope was hanging down from the mango tree at the time of occurrence. The rope got entangled on the left side mirror of the lorry driven by the petitioner as a result of which the deceased fell down from the tree and sustained injuries. The vehicle did not directly hit the deceased. The deceased was not standing on the road or the margins. The vehicle had not moved out of the road crossing the margins. No one has a case that the driver might have noticed the deceased who was on the tree. Question is whether the offences alleged would lie against the petitioner under such circumstances. The Apex Court in Ravi Kapur v. State of Rajasthan [(2012) 9 SCC 284] held that negligence and rashness to be punishable in terms of Section 304A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking the crime as well as the life of the person who may lose his life as a result of the crime. On appreciation of the facts of the case as revealed in the final report, I am of the view that the state of mind, as explained by the Hon'ble Supreme Court in Ravi Kapur cannot be attributed to the petitioner. Under such circumstances, the offence under Section 304A of the IPC would not lie against the petitioner. Coming to the offence under Section 279 of the IPC, I am of the view that the statement of CW2 and other statements recorded by police are to the effect that the petitioner had driven the vehicle in a rash and negligent manner through the public way in a manner as to endanger human life or to be likely to cause hurt or injury to any other person. Whether the petitioner had driven the vehicle in a rash and negligent manner is a matter of evidence. It cannot be said that the offence under Section 279 of the IPC is not made out in the final report. Therefore, in my view, the petitioner shall face trial with respect to the charge under Section 279 of the IPC.

In the result, this Crl.M.C. is partly allowed. The final report to the limited extent it alleges the offence under Section 304A of the IPC is quashed. The court below can proceed against the petitioner for the offence under Section 279 of the IPC on the basis of Annexure B final report.