STATE OF KERALA BY THE SUB INSPECTOR OF POLICE v. NISHAD

SRI.SOJAN MICHEAL RESPONDENTS/COMPLAINANT & ACCUSED: 1 2 NISHAD S/O.UNNIKIRSHNAN NAIR, JAYAKRISHNA, INDUSTRIAL ESTATE, PUTHUPARIYARAM, PALAKKAD. THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI.K.P.BALAGOPAL SRI.VIPIN NARAYAN, SR.PP THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 01.08.2024 ALONG WITH CRL.A.1895/2006, THE COURT ON

06.08.2024 DELIVERED THE FOLLOWING: Crl. A.No.1895/2006 & Crl.R.P No.3683/2006 3 C.S.SUDHA, J. --------------------------------------------- Crl. Appeal No.1895/2006 & Crl.R.P No.3683/2006 --------------------------------------------- Dated this the 6th day of August 2024 J U D G M E N T The appeal under Section 378(3) Cr.P.C. has been filed by the State of Kerala aggrieved by the judgment dated 04/05/2006 in C.C.No.600/2003 on the file of the Judicial First Class Magistrate Court-III, Palakkad, acquitting the accused of the offences punishable under Sections 279, 338 and 304A IPC. The appellant and the respondent will hereinafter be referred to as the prosecution and the accused.

2. As per the final report, the accused drove the minibus bearing registration no.KL-10-C/4488 through the public road from Mundur to Palakkad in a rash and negligent manner and when he reached the place by name Lal Nagar Pudupariyaram, he overtook the motorbike bearing Registration No.KL9 H-1288 Crl. A.No.1895/2006 & Crl.R.P No.3683/2006 4 driven by the deceased in which PW2 was the pillion rider. While overtaking, the left side of the bus brushed against the right handle bar of the motorbike due to which the deceased lost control of the vehicle. The bike rammed against the wall situated on the northern side of the public road. In the impact, the deceased was thrown on to the road resulting in grievous injuries, to which he later on succumbed. PW2, the pillion rider also sustained grievous injuries. Hence, the accused is alleged to have committed the offences punishable under Sections 279, 338 and 304A IPC.

3. Based on Ext.P1 FIS given by PW1, Ext.P6 FIR was registered by PW10, the then Sub Inspector of Police, Hemambika Nagar police station. The inquest report prepared by PW10 is Ext.P3. Ext.P4 is the scene mahazar prepared by her. Thereafter, the investigation was conducted by PW15, the then Circle Inspector, Palakkad Town North police station, as per the special direction of the DIG. He questioned the witnesses, Crl. A.No.1895/2006 & Crl.R.P No.3683/2006 5 arrested the accused, completed the investigation and submitted the charge sheet before the court.

4. On receipt of summons, when the accused appeared before the trial court, he was furnished with copies of all the relevant records. The particulars of the offences was read over and explained to the accused to which he pleaded not guilty. PW1 to PW16 were examined and Exts.P1 to P10 were got marked on the side of the prosecution. After completing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) Cr.P.C. He denied all the incriminating circumstances and maintained his innocence. The then Head Constable, Hemambika Nagar police station, was examined as DW1 on the side of the accused. Ext.D1 is a contradiction brought out in the statement of PW5 and Ext.D2 is the statement given by PW2 to DW1.

5. The trial court on an appreciation of the oral and documentary evidence and after hearing both sides found that the Crl. A.No.1895/2006 & Crl.R.P No.3683/2006 6 prosecution had failed in establishing the offences alleged against the accused and hence acquitted him under Section 255(1) Cr.P.C. Aggrieved, the State has come up in appeal. The father of the deceased has filed the revision.

6. The only point that arises for consideration in the appeal and the revision is whether there is any infirmity, illegality, irregularity or perversity in the findings of the trial court calling for any interference by this Court.

8. Heard both sides. The prosecution relies on the testimony of PW1, PW2 and PW14 to establish the case. PW1 deposed that on the said day, he was returning home on a bicycle and when he reached the place of occurrence, he saw two persons drenched in blood lying on the road adjacent to the wall by the side of the road. He took both of them to the hospital. He did not see the incident. Ext.P1 is his statement to the police. In the cross-examination, PW1 deposed that he had heard that the motorbike driven in great Crl. A.No.1895/2006 & Crl.R.P No.3683/2006 7 speed, lost control and rammed against the wall by the side of the road. PW1 also deposed that the rider of the bike died at the spot. However, PW2, the pillion rider, was conscious. When he made enquiries to PW2, the latter told him that the motorbike was in great speed and that the deceased lost control of the vehicle when he looked back and spoke. PW1 identified PW2 who was present in the court.

9. PW2, the pillion rider deposed that when the bus overtook the motorbike, the back side of the bus hit the back side of the motorbike. He fell down, but he was conscious. PW2 when asked the reason for the incident pleaded ignorance. PW2 further deposed that initially the bus had overtaken the bike and then the bike overtook the bus. The incident happened on the third occasion when the bus overtook the motorbike. To a question as to whose fault caused the incident, PW2 answered that it was due to the fault of the bus driver. In the cross-examination, PW2 deposed that the bus driver had sounded the horn about three to Crl. A.No.1895/2006 & Crl.R.P No.3683/2006 8 four times and then they conceded ( ഞങ്ങൾ വിട്ടുക(cid:8)ൊടുത്തു ). It was when the bus overtook them for the second or third time, the incident happened. In the cross-examination, he admitted that he had stated to the police that the front side of the bus had hit the back side of the motorbike.

10. PW14 deposed that he was a passenger in the bus driven by the accused. He was sitting on the left side of the bus which was being driven in great speed. A two wheeler was behind the bus. The bus overtook the two wheeler twice. He looked back on hearing a noise from the left side. He then saw the bus hitting the handle of the bike and the bike falling. The driver of the bus slowed down the vehicle. However, some of the passengers told the driver that there would be problems if the bus was stopped and so asked the driver to drive on. According to PW14, speeding was the reason for the incident; that it was due to the mistake of the bus driver and that the incident occurred due to competition between the drivers ( മത്സരഓട്ടം (cid:8)ൊരണമൊണ് സംഭവിച്ചത് ). In the Crl. A.No.1895/2006 & Crl.R.P No.3683/2006 9 cross-examination, PW14 admitted that he had stated to the police that the incident may have occurred when some portion of the left side of the bus hit the motorbike. PW14 had nothing to say when it was pointed out to him that such a statement was not seen recorded in his statement to the police.

11. As per Section 304A IPC, whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, is liable to be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.  To bring a case of homicide under S.304A IPC, the following conditions must exist, namely, (i) there must be death of the person in question; (ii) the accused must have caused such death; and (iii) that such act of the accused was rash or negligent and that it did not amount to culpable homicide. The section deals with homicidal death by rash or negligent act. It is directed against the offences outside the range of S.299 and 300, IPC and covers those cases where death has been caused without Crl. A.No.1895/2006 & Crl.R.P No.3683/2006 10 'intention' or 'knowledge'. The words 'not amounting to culpable homicide' in the provision are significant and clearly convey that the section seeks to embrace those cases where there is neither intention to cause death, nor knowledge that the act done will in all probability result into death. It applies to acts which are rash or negligent and are directly the cause of death of another person. S.304A carves out cases where death is caused by doing a rash or negligent act which does not amount to culpable homicide not amounting to murder within the meaning of S.299 or culpable homicide amounting to murder under S.300, IPC. In other words, S.304A excludes all the ingredients of S.299 as also of S.300. The section has application to those cases where there is neither intention to cause death nor knowledge that the act in all probability will cause death.

11.1. Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will Crl. A.No.1895/2006 & Crl.R.P No.3683/2006 11 probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. Though the term 'negligence' has not been defined in the Code, it may be stated that negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a reasonable and prudent man would not do. (Mahadev Prasad Kaushik v. State of Uttar Pradesh: 2008 (4) KHC 611: AIR 2009 SC 125; State of Punjab v. Balwinder Singh: 2012 KHC 4006 and State of Karnataka v. Muralidhar, AIR 2009 SC 1621: 2009 KHC 413). Crl. A.No.1895/2006 & Crl.R.P No.3683/2006 12

12. The evidence on record is unsatisfactory to prove rashness or negligence on the part of the accused. Going by the testimony of PW2 and PW14, the accused was speeding. But vehicles are intended to be driven in speed. Merely because the vehicle was speeding is no ground to find rashness or negligence. Evidence will have to come on record to show that the act of the accused was so rash and negligent that it resulted in the incident. From the materials on record, it appears that the incident happened due to road rage. Evidence has come on record to show that both the deceased as well as the accused were competing to overtake each other. The testimony of PW1, a loyal prosecution witness is crucial. He deposed that PW2, the pillion rider who was also grievously injured, had told him that the deceased was riding the motorbike in great speed and that the deceased lost control of the vehicle when he looked back and spoke to him. According to the learned Public Prosecutor, this testimony of PW1 is inadmissible in evidence because it is mere hearsay. This Crl. A.No.1895/2006 & Crl.R.P No.3683/2006 13 submission does not appear to be correct in the light of Section 6 of the Evidence Act.

13. Section 6 of the Evidence Act is an exception to the general rule whereunder hearsay evidence becomes admissible. But, for bringing such hearsay evidence, within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. (Sukhar v. State of Uttar Pradesh: AIR 1999 SC 3883: 2000 KHC 484).

13.1. In Sukhar (Supra), one of the witnesses testified that when he reached the scene of occurrence, the injured told him that his nephew had fired at him. This was held to be admissible under Section 6 of the Evidence Act. I also refer to the dictum in Badruddin Rukonddim Karpude v. State of Maharashtra: Crl. A.No.1895/2006 & Crl.R.P No.3683/2006 14 AIR 1981 SC 1223: 1981 KHC 731. An independent witness testified that on the date of the incident he had been contacted by the widow of the deceased and another occurrence witness who told him that the deceased was being beaten by the accused persons in the said case. The witness proceeded to the place of occurrence, where he found the deceased lying seriously injured. In answer to a query from the witness about the identity of the assailants, the deceased identified the assailants. The witness then made arrangements for the deceased to be taken to the hospital where the latter died. The information conveyed to the witness was held to be admissible as part of res gestae.

13.2. Likewise, in the present case also PW2, the injured, conveyed to PW1 immediately after the incident about the cause of the same. There is no reason(s) to disbelieve PW1, an independent witness, whose testimony has not been discredited in any way. The testimony of PW1, a loyal witness, goes against the prosecution case. The testimony of PW2 and PW14 also does Crl. A.No.1895/2006 & Crl.R.P No.3683/2006 15 not show any rashness or negligence to prove the ingredients of the offences charged against the accused.

14. It is quite tragic that the incident led to snuffing out the life of a young man aged 22 years. The loss of a son to the parents is loss forever and an irreparable one, which can never be mitigated. This court do realize and understands the magnitude of the grief and loss of the parents. But in a criminal case, unless the ingredients of the offence alleged against the accused are proved beyond reasonable doubt, the benefit will necessarily have to go to the accused. It is true that some illegalities has been committed by the trial court. For instance, Ext.D2, apparently Section 161 statement of PW2, is seen to have been marked as Ext.D2 and relied on by the court for acquitting the accused. This has been done ignoring the bar contained under the proviso to Section 162 Cr.P.C. On a re-appreciation of the entire evidence on record, keeping apart Ext.D2, a totally inadmissible piece of evidence, I do not find evidence satisfactory to find the Crl. A.No.1895/2006 & Crl.R.P No.3683/2006 16 accused guilty of the offences alleged against him. In such circumstances, I find no reasons to interfere with the finding of acquittal by the trial court. In the result, both the appeal and revision are dismissed. Interlocutory applications, if any pending, shall stand closed. C.S.SUDHA JUDGE NP Sd/-