Raghuvaran vs State Of Kerala

C.Pratheep Kumar, J

This Revision Petition has been preferred by the appellant in Crl. Appeal No.94/2015 on the file of the Additional Sessions Court-I, Palakkad, against the judgment dated 29.7.2016, confirming the judgment of the Judicial First Class Magistrate, Alathur in C.C.1980/2014 convicting and sentencing him under Sections 279, 337,338 and 304-A IPC.

The prosecution case is that on 20.8.2000 at about 10.00 a.m., the accused, namely the driver of the TATA Sumo car having registration No. KL-8N-6831 driven the same along the Nenmarra – Nelliyampathy road in a rash and negligent manner so as to endanger human life, with PWs 2 to 4, 6 and 7 along with four other passengers on board and when it reached near 14th Mile junction, the vehicle plunged into a gorge having a depth of about 300 metres and as a result of which all of them sustained injuries and four passengers, who sustained serious injuries succumbed to the injuries.

The evidence in the case consists of the oral testimonies of PW1 to 22 and Exts. P1 to P22. MOs1 to 3 were identified. No evidence was adduced by the accused. After appreciating the available evidence, the learned Magistrate found the accused guilty of the offences under Section 279, 337,338 and 304-A IPC, convicted and sentenced him to undergo various terms of punishment including rigorous imprisonment for two years for the offence under Section 304-A IPC. In appeal, the learned Sessions Judge sustained the conviction as well as sentence and dismissed the appeal. Dissatisfied with the above judgment of the learned Sessions Judge, the accused preferred this revision, raising various grounds.

Now the point that arise for consideration is the following:-

Whether the impugned judgment of the learned Sessions Judge confirming the conviction and sentence passed by the learned Magistrate against the revision petitioner is liable to be interfered with, in the light of the grounds raised in the Revision Petition?

Heard Sri. John S. Ralph, the learned counsel for the revision petitioner and Smt. Maya M.N., the learned Public Prosecutor.

The point:- One of the contentions raised by the learned counsel for the revision petitioner is that from the available evidence, the prosecution has not succeeded in proving gross negligence on the part of the accused, which is required for convicting him for the offences charged. Further, according to him, the passengers in the TATA Sumo consisting of 12 in numbers, after consuming liquor, created ruckus and frequently changed their seats and while doing so, happened to hit against the steering wheel, which ultimately resulted in losing the control of the vehicle by the accused. Therefore, he prayed for acquitting the accused by allowing the Revision Petition. On the other hand, the learned Public Prosecutor would argue that, from the evidence of PWs2 to 4, the prosecution has succeeded in proving the charges against the accused. According to her, there are no valid grounds to interfere with the judgment of the trial court as confirmed by the appellate court. Therefore, she prayed for dismissing the Revision Petition.

PW1 is the 1st informant. He has admitted his signature in Ext. P1 FI statement. However, he deposed that he has not actually seen the incident. However, he deposed that the car fell into a gorge in which four passengers died and the other passengers sustained injuries. After the incident, he along with the other passers-by, reached the spot to take the injured persons to the hospital. From his evidence it is revealed that the injured were drunk.

PW2 was one of the passengers in the TATA Sumo car involved in the incident. He would swear that on one day at about 10.00 a.m., while he along with 12 other persons, was travelling in a TATA Sumo car towards Nelliampathy, the car fell into a gorge when they reached 14th Mile junction. In the incident all of them sustained injuries and 4 persons died. According to him, the accused was the driver of the above car and also that the speed of the car as well as the carelessness of the driver were the reasons for the incident.

PW3 was another passenger in the said car. He would swear that on 20.8.2000 at about 10.00a.m, while he along with others were travelling in a TATA Sumo car, the car fell into a gorge and all the passengers including himself sustained injuries and four passengers succumbed to the injuries. According to him, the car was in overspeed. Further according to him, overspeed and carelessness of the driver were the reasons for the accident.

PW4, another passenger in the car would swear that on 20.8.2000 between 9.30 – 10.00 a.m, while he along with other passengers were travelling in a car towards Nelliampathy, the car fell into a gorge. He as well as the other passengers sustained injuries and four of them died in the incident. He would swear that the accused had driven the car in overspeed and according to him, carelessness of the driver was the reason for the accident.

The remaining occurrence witnesses turned hostile to the prosecution. PW16, the Motor Vehicle Inspector, who had examined the vehicle involved in the incident and issued Ext. P7 report, would swear that there was no mechanical defect to the vehicle. PW17, the doctor who had conducted autopsy on the body of the deceased persons Rajesh and Unnikrishnan and issued Ext. P15 and 16 postmortem certificates would swear that they died because of shock and haemorrhage due to the injuries sustained to the vital organs.

The fact that four persons died because of the injuries sustained in the accident is not in dispute. It is also not disputed that the accused persons and PWs2 to 4, 6 and 7 also sustained injuries in the incident. During 313 examination, the accused also admits that he was the driver of the TATA Sumo car involved in the incident. At that time the contention taken by the accused is that all the passengers in the car were fully drunk, frequently changed their seats, created ruckus and that the inebriated passengers patted on his body for playing and enjoyment and at that time, he lost his control over the vehicle, resulting in the accident.

Though during the chief examination PW2 deposed that the accused had driven the car in high speed, during cross-examination he stated that since the car was going uphill, it could not be driven in high speed. Similarly according to him, all on a sudden, the vehicle fell into a gorge. During the cross-examination, he deposed that there was loud noise inside the car as they travelled, fully enjoying the trip. He further deposed that in the front seat along with the driver, one Rajesh and Vinod (PW3) were sitting. According to him, Rajesh was sitting in the left window seat, while Vinod was sitting in between Rajesh and the driver. According to the accused, since Vinod, sitting in between Rajesh and the driver, could not see the side sceneries, he moved towards the window seat and Rajesh went towards the seat adjacent to that of the driver, that, when they changed the seats, the person who came to sit near the driver happened to hit against the steering wheel and as a result of which, the driver lost his control over the vehicle and thus the vehicle fell into a gorge. However, the said suggestion was denied by PW2.

The learned counsel would argue that the vehicle at the time of the incident was going uphill through the road containing numerous hairpin turns and hence, there was no chance for overspeeding. During the cross-examination, PW2 also admitted the same. During the cross-examination, PW2 claimed that, on the way, before the present incident, twice the car skid away, as the driver lost its control. When he was asked whether he had given such a statement to the Investigating Officer, he replied in the affirmative. The learned counsel for the revision petitioner would argue that it was an omission and no such statement was given by PW2 to the Investigating Officer.

Similarly, PW3 also deposed during the chief examination that the vehicle was in overspeed and as a result of which it fell into a gorge. During the cross-examination he clarified that at the time of the incident, the vehicle was going uphill through a road full of hairpin curves and in such a situation, the vehicle could not be driven in overspeed. To a suggestion put to PW3, as to whether they were in drunken stage, he denied the same. However, the doctor who had examined PW3 and issued Ext. P9 wound certificate has noticed smell of alcohol in PW3. During the cross-examination, PW3 also deposed that on the way, they were fully enjoying the trip. However, he denied the suggestion that the incident occurred when the passengers sitting in the front seat changed their seat and in that process, they hit on the steering wheel and that is why the driver lost the control of the vehicle.

During the chief examination, PW4 deposed that the accused had driven the car in overspeed. During the chief examination, nothing more was stated by PW4 with regard to the reason for the incident. However, he further claimed that, before the incident, on two occasions, the car skid away, as the driver lost the control of the vehicle. During the cross-examination when he was asked whether he had given such a statement to the police, he replied in the affirmative. However, when his attention was brought to the fact, that he had given no such statement to the Investigating Officer, he stated that he has nothing to say in that respect. The learned counsel for the revision petitioner would argue that the above evidence given by PW4 is also an omission as no such statement was given to the Investigating Officer.

During the cross-examination, however, PW4 claimed that the reason for the accident was overspeed and carelessness of the driver. At the same time, he clarified that he was sitting in the back seat behind two rows, where the seats were facing sideways, while the front two rows were facing forward. In the above circumstance, the claim of PW4 that he had actually witnessed the accident and the reason for the accident as stated by him is to be viewed with suspicion, especially when there was full of noise, play and clapping inside the over-crowded vehicle containing 13 passengers including the driver. The evidence of PW4 that the car was in overspeed is also contradictory to the evidence of PWs2 and 3 that since the car was going uphill, it was not in overspeed.

Though, PWs2 to 4 at one stage deposed that the vehicle was in overspeed and that is one of the reasons for the accident, during cross-examination PWs2 and 3 deposed that at the time of the incident the vehicle was going uphill through the road with hairpin curves and as such, there was no scope for the vehicle to move in overspeed. Moreover, as argued by the learned counsel, speed alone is not the criterion to determine rashness and negligence. Suresh v. State of Kerala, 2016 KHC 474, Palliyalil Sidique v. State of Kerala, 2013 (3) KHC 302)

Though PWs2 and 4 claimed that even before the accident, on two other occasions the car skid as the driver lost control of the vehicle, as argued by the learned counsel, they had not given such a statement to the Investigating Officer. In the above circumstance, the learned counsel would argue that the above evidence of PWs2 and 4 is to be taken as material omission amounting to contradiction. However, during the examination of the Investigating Officer, the above omission was not put to him. Therefore, the learned Public Prosecutor would argue that the evidence of PWs2 and 4 in that respect cannot be taken as material omission amounting to contradiction. She has also relied upon the decision of the Hon’ble Supreme Court in Laxmibai (dead) through Lrs.and Another v. Bhagwantbuva (dead) through Lrs.and Others , 2013 KHC 4086.

In the decision in Laxmibai (supra), in paragraph 31 the Hon’ble Apex Court held that:

“Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses”.

In this case, during the examination of PWs2 and 4 the above omission was brought to their attention. It is true that, during the examination of the Investigating Officer, those omissions were not brought to his attention. Therefore, as argued by the learned Public Prosecutor, the accused could not prove the above omission that occurred in the evidence of PWs2 and 4. It was argued that the officer who had recorded the statement was not examined as at the time evidence he was more. It is true that the officer who had recorded the statements of PWs2 and 4 was not examined as he was no more. Even then, such questions could have been asked to his successor-in-office namely PW22. In the absence of the same, it is to be held that the accused has not proved those omissions and as such, those omissions do not amount to contradiction. Even then, as argued by the learned counsel, the fact remains that, PWs2 and 4 have not given such a statement to the Investigating Officer. Therefore, the above portion of the evidence of PWs2 and 4 alone cannot be the basis for finding the rashness and negligence of the accused.

The learned counsel for the revision petitioner has relied upon some decisions in support of his argument that the offence under Section 304-A IPC is not attracted in this case. In the decision in Jacob Mathew v. State of Punjab and Another, 2005 (6) SCC 1, the Hon'ble Supreme Court held that :

“the jurisprudential concept of negligence differs in civil and criminal law. To fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law, ie., gross or of a very high degree. Negligence that is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.”

In the above decision, the Court further observed that :

“The word “gross” has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be “gross”. The expression “rash or negligent act” as occurring in Section 304-A IPC has to be read as qualified by the word “grossly”.

In Sushil Ansal v. State through CBI, 2014 (6) SCC 173, the Hon'ble Apex Court held in paragraph 73 as follows :-

“For an act of negligence to be culpable in criminal law, the degree of such negligence must be higher than what is sufficient to prove a case of negligence in a civil action.” “That negligence can constitute an offence punishable under Section 304-A of the IPC only if the same is proved to be gross, no matter the word “gross” has not been used by the Parliament in that provision is the settled legal position.”

In the decision in Syad Akbar v. State of Karnataka, 1980 (1) SCC 30, in paragraph 28 the Hon'ble Apex Court held that :

“Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.”

He has also relied upon the observation made by Lord Atkin in Andrews v. Director of Public Prosecutions, 1937 AC 576 : (1937) 2 All ER 552 [HL], quoted below:

“Simple lack of care such as will constitute civil liability is not enough. For purposes of criminal law, there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established.”

In the light of the above decisions it can be seen that, in order to prove the offence under Section 304-A IPC, the prosecution has to prove gross negligence on the part of the accused. In this context, it is to be noted that the vehicle fell into a gorge on the right hand side of the vehicle to a depth of about 300 metres. At the time of incident the vehicle was going uphill and was not in high speed. Nobody has a case that at that time, anyone suddenly crossed the road or any other vehicle came on the way of the car. The actual reason for the skidding of the vehicle towards the right side is to be evaluated in the above context.

The defence taken by the accused that all the 12 passengers in the car were fully drunk and they were creating all sorts of ruckus including making loud noise, changing seats, clapping etc., and even playfully patted on his body and that is why suddenly the driver lost the control of the vehicle, is to be evaluated in the above context. The trial court and the appellate court held that, in such circumstance, the driver ought to have stopped the vehicle, instead of proceeding further. It is true that, if he had stopped the vehicle, the accident could have been avoided. However, the power of resistance available to a taxi driver against 12 inebriated passengers going for a trip in a distant place, also is to be borne in mind.

Though PWs2 and 4 would claim that carelessness of the driver of the car as another reason for the accident, it is only a general statement, from which a reasonable conclusion cannot be arrived at, about the rashness and negligence involved. None of them have explained the reason for arriving at the conclusion that the driver was careless. In the above circumstance, from the evidence of PWs2 and 4 that the driver was careless, it cannot be ascertained whether there was gross negligence on his part.

On an evaluation of the entire evidence on record, there is every reason to believe that the accused lost control over the car because of the ruckus created by the crowded and inebriated passengers in the said vehicle. The prosecution has not succeeded in proving that there was any gross negligence on the part of the accused, and that it resulted in the accident in this case. Therefore, I am constrained to hold that the prosecution has not succeeded in proving the offences under Section 279, 337,338 and 304-A IPC and as such, he is entitled to get an order of acquittal. Point answered accordingly.

In the result, this Revision Petition is allowed. The impugned judgment of the learned Sessions Judge confirming the sentence passed by the learned Magistrate against the revision petitioner under Sections 279, 337,338 and 304-A IPC is set aside. The revision petitioner is acquitted under Section 386 (b)(i) of Cr.P.C. He is set at liberty cancelling his bail bond.