Anoop vs State Of Kerala

The judgment in S.C.No.187/2014 on the files of the Additional Sessions Judge-II, Kalpetta, dated 08.10.2015 is under challenge in this appeal at the instance of the sole accused.

Heard and perused the argument notes put up by the learned counsel for the appellant/accused and also heard the learned Public Prosecutor appearing for the prosecution in detail.

The prosecution case is that at 20.00 hours on 25.12.2012, the accused, who did not possess a valid driving licence, consumed alcohol and took the lorry bearing No.KL10AB 8495 without the permission of its owner and driven the same through Mananthavadi-Thalakkode. While so, he could not control the vehicle and the lorry hit on scooter bearing Reg.No.KL08 AX 6857 driven by PW5 along with a pillion rider. In the occurrence the pillion rider Varghese succumbed to the injuries and PW5 sustained simple injuries. It is on this premise the prosecution alleges commission of offences punishable under Sections 279, 337 and 304 of the Indian penal code (‘IPC’ hereafter) as well as Sections 185, 197, 3(1) r/w 181 of the Motor Vehicles Act (`MV Act' hereafter), by the appellant/accused.

The learned Sessions Judge had completed pre trial formalities. Thereafter charge for the said offences was framed and recorded evidence. On the side of the prosecution, PW1 to 15 were examined and Exts.P1 to P15 were marked. Though the accused was provided with opportunity to adduce defense evidence, no defense evidence was adduced. Thereafter the learned Sessions Judge heard both sides and on appreciation of evidence found that the appellant/accused committed the offences punishable under Sections 304A, 279 and 337 of IPC and under Sections 197, 185 and 3(1) r/w 181 of the MV Act and was sentenced as under:

The learned counsel for the appellant/accused argued that PW1 examined in this case is the younger brother of the deceased Varghese and Ext.P1 statement given by him led to registration of this crime. According to him, nobody properly identified the accused. It is pointed out that PW4 and PW5 the eye witnesses examined to prove the occurrence, deposed that they did not see the driver at the time of occurrence and, according to PW4, he saw him at the police station on the next day and accordingly he identified the accused at the dock. It is also pointed out that even though PW7 given evidence that he had seen the accused at the police custody on the next day, PW7 also stated that he did not see the accused at the time of occurrence at Kaniyaram. According to him, prosecution postulates two incidents between 8 p.m and 8.15 p.m on 22.02.2012. At first the alleged lorry hit on the back side of the scooter driven by PW5 at 8 p.m. In this connection, the prosecution failed to prove the evidence to show that the accused was the person who had driven the lorry at the time of the occurrence at Kaniyaram, though the lorry was stopped by hitting the compound wall of one Vincent at 8.15 p.m on the same day. Accordingly, the learned counsel pressed for interference in the verdict impugned to upset the same.

Whereas the learned Public Prosecutor strongly supported the prosecution case and submitted that the evidence available would show that the accused committed the offences found to be committed by the accused. Therefore, the verdict would not require any interference.

The points arise for consideration are:

The order to be passed?

Ext.P1 is the FIS given by PW1 Mr. Alias, the brother of Varghese, after the death of his brother at Government Medical College Hospital, Kozhikode, in consequent to the mishap. PW1 is not an eye witness to the occurrence. Ext.P2 is the inquest report and PW2 deposed that he had witnessed preparation of inquest report and he had signed in Ext.P2. Similarly, PW3 also signed in Ext.P2. PW4 is an eye witness to the occurrence. According to him, the occurrence was at 8 p.m on 25.12.2012 and at the time of occurrence, he was travelling along with the other witness on a motorcycle towards his wife house at Kaniyaram. In front of his bike, the son of his wife's elder brother Leo had ridden a bike along with Varghese as pillion rider. When the vehicle reached in front of KSEB Sub station, Mananthavadi, lorry bearing Reg.No.KL10AB8495 driven in the same direction overtook the motor bike ridden by him and hit on the motorcycle driven by Leo. Varghese fell down and he was taken him to District Hospital, Mananthavadi, in an autorickshaw and the doctor on examination informed that his condition was serious. Accordingly, he was taken to Medical College Hospital, Kozhikode, and Varghese died therein at 1 a.m. According to him, he did not see the driver at the time of occurrence and the over speed of the lorry caused the accident. During cross examination, he was able to give rational answers as to the details of the occurrence.

PW5 examined in this case, in fact, driven the scooter where deceased Varghese died on the date of occurrence. According to him, the occurrence was at 8 p.m on 25.01.2012 in front of KSEB sub station in Mananghavadi-Thalassery route. He testified that, at the time of occurrence, he was riding the scooter from Mananthavadi to Kaniyaram towards his house. While riding so, a lorry came from Mananthavadi side hit on the scooter ridden by him and he along with pillion rider (Varghese) fell down. The pillion rider sustained very serious injuries and the vehicle moved without stop. Thereafter, Varghese was taken to District Hospital and then to Medical College Hospital, Kozhikode, he breathed one's last. He deposed that he had driven the vehicle by obeying the rules and the speed of the lorry after overtaking another vehicle caused the accident and the lorry was driven by the accused in a negligent manner. He identified the accused as the driver at the police station.

PW6 examined in this case is the owner of lorry bearing Reg.No.KL10AB8495 and according to him, he had entrusted the lorry to be driven by CW8 and he came to know about the involvement of the lorry in an accident and one person died in the said occurrence. His evidence is that Dinesh B (PW7) was not the driver of the lorry at the time of the accident and the lorry was taken by a person without the consent of the driver and caused the accident. According to him, he obtained the lorry from the police station on third party kaichit and he came to know that his lorry was stolen away by somebody. Dinesh B, the driver, who was authorised by PW6, the lorry owner was examined as PW7. He deposed that on the date of occurrence, he was the driver of the lorry owned by PW6 and he alone was the driver. He reached Mananthavady with the load and unloaded half of it. The remaining half of the load was in the lorry. Thereafter, he got down to have a tea. When he returned, he found that the lorry seen vanished from the spot. Soon he understood that the vehicle got involved in an accident. According to him, the bunch of keys to switch on the lorry was also at the lorry and he understood that the lorry was driven by the accused herein as hearsay and caused the accident.

PW8, who was the manager of a furniture shop, Mananthavadi deposed that the lorry of PW6 reached his shop with load and out of the same half of the load was unloaded by parking the lorry in front of his shop. After unloading half of the same, he went to his house and later he understood that the lorry was taken away by somebody.

PW9 examined in this case is the probationary Sub Inspector of Police attached to the Police Station, Mananthavadi. He had given evidence that on 25.12.2012 while he was doing patrol duty with the Principal Sub Inspector of Police, he got an information regarding an occurrence whereby the lorry bearing Reg.No.KL10AB 8495 met with an accident and, in turn, the same destroyed the compound wall of Vincent and accordingly he reached the place of occurrence. Then he found that the lorry driver was restrained by the people in the locality. Later his name and address were collected by the Principal Sub Inspector of Police and from his speech and the answer given by him, it was understood that he consumed alcohol and accordingly the accused was arrested at 8.30 p.m. He also deposed about the condition of the lorry after the accident stating that it was not fit to be shifted by running. He deposed about the medical examination of the accused. According to him, after medical examination the accused was taken to the police station and then this case was registered. His version further is that he also came to know about the occurrence whereby the accused hit down the passengers travellng on a scooter and one among them died at the Medical College Hospital, Kozhikode. He identified the accused who was arrested before the court. During cross examination PW9 deposed that he did not witness the driving of the lorry by the accused.

PW10 examined in this case is CPO attached to Mananthavadi Police Station as on 25.12.2012. He deposed that he was in the patrolling party of the Principal Sub Inspector as well as the probationary Sub Inspector and he also supported the evidence of PW9, preparation of Ext.P3 body mahazar pertaining to the lorry and scooter. Ext.P6 is the scene plan tendered in evidence through PW12, who was the then Village Officer, Mananthavadi, for which no cross. It was PW13, who was in GD charge, had registered Ext.P1 FIR, recording the statement of PW1 and he supported the same.

Supporting the evidence of PW9 and PW10, PW14, the Principal Sub Inspector of Mananthavadi as on 26.01.2012 also given evidence. According to him, he had prepared inquest on the body of deceased Varghese and Ext.P2 identified as the inquest so prepared. He also deposed about preparation of Ext.P7,scene mahazar and also body mahazar pertaining to the vehicle involved in the crime as Ext.P3. It was through him, Ext.P9 arrest memo was tendered in evidence. He also deposed that the vehicle was released to the owner of the vehicle as per kaichit and he identified the same as Ext.P10 series. According to him, he had obtained drunkenness certificate of the accused and the same is Ext.P5. Thereafter he filed a report before the court as Ext.P11 seeking deletion of the offence under Section 304A of IPC and incorporation of the offence under Section 304 of IPC and under Section 185 and 197 of the M.V Act. He also deposed that the accused had no licence to drive heavy vehicles at the time of occurrence and the report so given is Ext.P12. Ext.P13 report reciting the correct name and address of the accused was also tendered in evidence through PW10. PW15 examined in this case is Circle Inspector of Police, Mananthavadi, during the relevant time and he deposed about the investigation done by him in continuation of the investigation done by PW15. It was through him, Ext.P14 and Ext.P15 series inspection reports of the vehicle showing that no mechanical defect to the vehicle also tendered in evidence. As regards to medical examination of Mr.Jaison (PW5), PW11 Dr.P.Suresh Babu, had given evidence and it was through him Ext.P4 certificate was tendered in evidence and, according to the doctor, on his examination multiple abrasions all over the body and scale were found and he was treated as an outpatient. Ext.P5 medical examination certificate of the accused also was tendered in evidence through PW11, as per which PW11 deposed that he had certified that the accused had consumed alcohol.

Going by the evidence discussed, it could be seen that lorry bearing Reg.No.KL10AB8495, originally belonged to PW6, was entrusted by PW6 to PW7 as driver, when parked before the furniture shop after unloading half of the load therein, the accused who consumed alcohol had stolen away the lorry and thereafter hit against a scooter and also later on the compound wall of one Vincent. As a result of the hit of the lorry against the scooter, the pillion rider succumbed to injuries, as evident from the postmortem certificate.

As per Ext.P5, it was certified by PW11 that the accused consumed alcohol, but he was not under the influence of alcohol. It has come in evidence that, at the time of the occurrence, the accused did not possess a valid driving licence to drive a heavy motor vehicle and had driven the lorry without a valid driving licence.

Ext.P14 is the postmortem certificate where the following antemortem injuries were noted:

As per Ext.P14, the doctor opined that “deceased died due to blunt injury sustained to head”. Thus the cause of death of Varghese is the direct consequence of the accident injuries.

Regarding the contention raised by the learned counsel for the appellant/accused that there is no proper identification of the appellant/accused as the driver of the lorry at the time of accident, it is relevant to refer the evidence given by PW9 and PW14. PW9 and PW14 had given evidence that, when they reached the place of occurrence on getting information regarding the accident, the driver was restrained by the people in the locality and thereafter PW14 ascertained the name and address of the driver and found anomalies in his speech and reply and thus they found that the accused had consumed alcohol. Accordingly, PW14 arrested the accused and produced him for medical examination. Similar version was given by PW9 also. Consequent thereof, a certificate was issued by the doctor certifying that the accused consumed alcohol, as already discussed. It is relevant to note that, PW14 categorically identified the accused as the person, who was arrested by him, when the accused was restrained by the people in the locality, after the occurrence. Thus this is a case where the accused, who was the driver, restrained by the people in the locality soon after the occurrence and he was arrested from the spot as spoken by PW9 and PW14. Now it is necessary to consider what is the evidence, in fact, given by PW5 as regards to the identification of the accused. His evidence is that he had seen the driver, who had driven the lorry, at the Police Station. Even though he was cross examined, no question was asked to dispute his version regarding identification in any manner rather than putting questions to get his version shaken regarding cause of the accident to make it as a hearsay, which was refuted by PW5. Thus in the instant case, the evidence regarding PW5 as to the identity of the accused is not at all challenged during cross examination and the accused was arrested by PW14 from the spot itself. Even though PW4 had given evidence that he did not see the driver at the time of occurrence, he also identified him at the dock after identifying him at the police station. Assimilating the evidence of PW9, PW14 along with PW5, the prosecution succeeded in proving that the accused was the driver, who had driven the lorry in a rash and negligent manner after consuming alcohol, at the time of accident, that too, after taking away the lorry entrusted by PW6 to PW7 for driving, without any authorisation. Thus, the contentions raised by the learned counsel for the appellant/accused to unsustain the verdict would sustain in the eye of law. If that be so, the evidence discussed would categorically establish the commission of offence punishable under Sections 279, 337 and 304A of IPC as well as under Sections 197, 185 and 3(1) r/w 181 of the MV Act, by the appellant/accused. Therefore, the finding of the Sessions Court in the above line with regard to the conviction warrants no interference, and the same is confirmed.

Coming to the sentence, the learned Sessions Judge imposed very reasonable sentence and, therefore, the sentence also would not require any interference.

In the result, this Appeal fails and is accordingly dismissed. The conviction and sentence imposed by the Special Court are confirmed. As a sequel thereof, the order suspending sentence and granting bail to the accused stands cancelled and the bail bond also stands cancelled.

The accused is directed to surrender before the Special Court to undergo the sentence forthwith, failing which the Special Court shall execute the sentence forthwith. Registry is directed to forward a copy of this judgment to the Special Court for compliance and further steps.