Kerala High Court
Robinson vs State Of Kerala on 19 June, 2025
2025:KER:43803
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 19TH DAY OF JUNE 2025 / 29TH JYAISHTA, 1947
CRL.A NO. 76 OF 2012
AGAINST THE CONVICTION AND SENTENCE IN S.C. NO.557 OF 2007 DATED
19.12.2011 ON THE FILES OF THE ADDITIONAL SESSIONS COURT (FAST TRACK
COURT-I), THIRUVANANTHAPURAM
APPELLANT/ACCUSED:
ROBINSON
S/O.GEORGE, KULATHINKARA PUTHEN VEEDU, PEPPAD DESOM,
PEROORKADA VILLAGE, NOW RESIDING AT MONI NIVAS, NEAR
CHERIYAKONNI DEVI TEMPLE, ARUVIKKARA VILLAGE.
BY ADV SRI.G.SUDHEER
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
ERNAKULAM, PIN-682031
PP - ADV SHEEBA THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.06.2025, THE
COURT ON 19.06.2025 DELIVERED THE FOLLOWING:
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2
"C.R"
JUDGMENT
Dated this the 19th day of June, 2025
The sole accused in S.C. No.557/2007 on the files
of the Additional Sessions Court (Fast Track Court-I),
Thiruvananthapuram, has filed this appeal, under Section
374(2) of the Code of Criminal Procedure, 1973, challenging
the conviction and sentence imposed against him by the
Additional Sessions Judge as per the judgment dated
19.12.2011, finding him guilty for the offences punishable
under Sections 337, 338, 304A of the IPC as well as under
Section 3 read with 181 of the Motor Vehicles Act, 1988
[hereinafter referred as ‘MV Act‘ for short]. The State of
Kerala, represented by the Public Prosecutor is arrayed as
the sole respondent herein.
2. Heard the learned counsel for the appellant and
the learned Public Prosecutor, in detail. Perused the verdict
under challenge and the records of the trial court.
3. Parties in this appeal shall be referred as
‘prosecution’ and ‘accused’, hereafter.
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4. The prosecution case in brief:- The allegation of
the prosecution is that, at about 01.00 p.m. on 02.12.2005,
without having a valid driving licence, the accused herein
driven the KSRTC bus bearing registration No.KL-15-3434 in
a rash and negligent manner along Vellayambalam – R.R.
Lamp Road, with knowledge that the said driving would
likely to cause death of human beings and with said
knowledge he dashed the bus against a motorcycle bearing
registration No.KL-01-N-861 ridden by one Jayakumar. In
consequence to the occurrence, Jayakumar, the rider of the
motorcycle died and the pillion rider sustained multiple
injuries. On the said premise, initially, crime was registered
alleging commission of offences punishable under Sections
337, 338 and 304 of the IPC as well as under Section 3
read with 181 of the MV Act, by the accused. After
completing investigation, Final Report was filed alleging
commission of the said offences by the accused.
5. When the case was committed to the Court of
Sessions, Thiruvananthapuram by the Judicial First Class
Magistrate Court-I, the same was made over to the
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Additional Sessions Court, Thiruvananthapuram and the
learned Additional Sessions Judge framed charge for above
said offences and tried the case.
6. During trial, PWs 1 to 16 were examined, Exts.P1
to17 and MO1 series were marked on the side of the
prosecution. During cross-examination of prosecution
witnesses, Exts.D1 to D4 contradictions were marked on
the side of the accused. Even though, the accused was
given opportunity to adduce defence evidence after
questioning him under Section 313(1)(b) of Cr.P.C, he did
not opt to adduce any defence evidence.
7. The trial court analyzed the evidence in detail
and relying on the evidence given by PW3, the pillion rider
of the motorcycle, PW4 and PW5 independent witnesses,
who spoke about the occurrence as well as negligence on
the part of the accused, found that the accused is guilty for
the offences punishable under Sections 337, 338, 304A of
the IPC as well as under Section 3 read with 181 of the MV
Act. Accordingly, the trial court convicted and sentenced
the accused as under:
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5“In the result, I sentenced the accused to
undergo Rigorous Imprisonment for 3 (three)
months and to pay a fine of Rs.500/-(Rupees
Five hundred only) u/s. 337 IPC, Rigorous
Imprisonment for 1 (one) year and to pay a fine
of Rs 1,000/- (Rupees One thousand only)
u/s.338 IPC and in default of payment of fine to
undergo Rigorous Imprisonment for 1 (one)
month each.
The accused is also sentenced to undergo
Rigorous Imprisonment for 1½ (One and a half)
years and to pay a fine of Rs. 10,000/- (Rupees
Ten thousand only) u/s 304 A IPC and in default
of payment of fine to undergo Rigorous
Imprisonment for a further period of 3 (three)
months.
He is also sentenced to undergo Rigorous
Imprisonment for a period of three months u/s
3 r/w.181 of MV Act.
Sentences shall run concurrently.
Accused was in judicial custody for the
period from 02-12-2005 to 08-12-2005 in this
case and he is entitled to set off for the said
period u/s.428 Cr.P.C.
Fine amount if realised Rs. 10,000/-
(Rupees Ten thousand) shall be given to the
legal heirs of deceased and Rs. 1,500/- (Rupees
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One thousand five hundred only) shall be given
to PW3 as compensation u/s. 357 Cr.P.C.”
8. The learned counsel for the appellant/accused
argued at length to convince this Court that, the trial court
went wrong in finding that the accused was guilty for the
offences alleged. According to the learned counsel for the
appellant/accused, the trial court relied on the evidence of
PWs 3 to 5, to find that the accused is guilty. It is pointed
out by the learned counsel for the appellant/accused that
the evidence of PW3, who was the pillion rider of the
motorcycle, would suggest that the motorcycle involved in
this case, driven by Jayakumar (deceased), was one
entrusted to him for the purpose of repairing its mechanical
defect and as deposed by PW3, the bike was ridden by the
deceased at the time of accident, for the purpose of
purchasing spare parts of the bike to cure its mechanical
defects. It is pointed out by the learned counsel for the
accused further that, PW14, the owner of the motorcycle,
who was examined to prove the fact that the motorcycle
was taken into custody by him, by executing Ext.P15
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Kaicheet, deposed during cross-examination that the
motorcycle was entrusted at the workshop with complaint
of break failure. According to the learned counsel for the
accused, reading the evidence given by PW3 along with
PW14, the same would suggest that the motorcycle
involved in the accident was one ridden without break and
thereby the accident occurred. This aspect was not
considered by the trial court and therefore, the verdict of
the trial court is erroneous. He also pointed out that,
nobody near the place of occurrence either cited or
examined as witnesses to prove the occurrence. He also
submitted that, even though PWs 4 and 5 deposed in
support of the prosecution case, nobody except PW3 stated
about the rashness and negligence on the part of the
accused in driving the KSRTC bus. Therefore, the verdict of
the trial court is liable to be set aside.
9. Per contra, the learned Public Prosecutor would
submit that, in this case, PW3, the injured witness/pillion
rider of the motorcycle given evidence supporting the
prosecution and the same is well corroborated by the
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evidence of PWs 4 and 5. Therefore, the trial court rightly
entered into conviction and sentence and the same do not
require any interference. It is pointed out by the learned
Public Prosecutor further that, there was no mechanical
defect to the motorcycle as per Ext.P16 Motor Vehicle
Inspector Report marked and proved by the prosecution by
examining its author, PW15, the Motor Vehicle Inspector.
10. Addressing the rival arguments, the questions
arise for consideration are:
1. Whether the finding of the trial court
that the accused committed the offence
punishable under Section 337 of IPC is
justifiable?
2. Whether the finding of the trial court
that the accused committed the offence
punishable under Section 338 of IPC is
justifiable?
3. Whether the finding of the trial court
that the accused committed the offence
punishable under Section 304A of IPC is
justifiable?
4. Whether the finding of the trial court
that the accused committed the offence
punishable under Section 3 read with 181 of
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9the MV Act is justifiable?
5. Whether the verdict of the trial court
would require interference?
6. Order to be passed?
11. Points Nos.1 to 4:- In this matter, the prosecution
alleges commission of offences punishable under Sections
337, 338 and 304 of the IPC as well as under Section 3
read with 181 of the MV Act by the accused. Accordingly,
the trial court framed charge for the said offences and
recorded evidence. Finally, the trial court found that the
accused did not commit the offence punishable under
Section 304 of IPC. Instead, commission of the offences
punishable under Section 337, 338 and 304A of IPC as well
as under Section 3 read with 181 of the MV Act by the
accused was found.
12. The ingredients to attract an offence under
Section 304A of IPC are, causing the death of any person by
doing any rash or negligent act not amounting to culpable
homicide. The ingredients to attract an offence punishable
under Section 337 of IPC are, causing hurt to any person by
doing any act so rashly or negligently so as to endanger
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human life, or the personal safety of others. In the same
fashion, causing grievous hurt would attract the offence
under Section 338 of the IPC. So, rashness and negligence
while doing an act are the ingredients, which would
constitute the said offences.
13. Section 3 of the MV Act deals with necessity for
driving licence, wherein it has been provided that, no
person shall drive a motor vehicle in any public place
unless he holds an effective driving licence issued to him
authorising him to drive the vehicle; and no person shall so
drive a transport vehicle other than a motor cab or motor
cycle hired for his own use or rented under any scheme
made under sub-section (2) of section 75, unless his driving
licence specifically entitles him so to do.
14. In the instant case, the trial court mainly relied
on the evidence of PWs 3, 4, 5 and 8 and Ext.P6
Postmortem Certificate supported by other evidence to find
that the accused herein driven the KSRTC but in a rash and
negligent manner, without a valid driving licence and
dashed against the motorcycle involved in the accident,
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whereby the rider of the motorcycle was died and PW3
sustained hurt and grievous hurt. Tracing the evidence of
PW3, he deposed that, he was aware about the occurrence
on 02.12.2005 and he was the pillion rider of the
motorcycle, at the time of occurrence. According to him,
the KSRTC bus came from Vellayambalam to Palayam Road
through Museum Road in over speed, dashed against the
motorcycle, while they were entering into Museum Road
from Palayam. PW3 deposed further that, while the
motorcycle was crossing the road, the bus dashed against
them and both of them fell down. PW3 sustained fracture
on his right leg and he also lost the sight of his right eye.
According to him, the over speed of the KSRTC bus driven
by the accused caused the accident and driving vehicle in
over speed at the place of occurrence would definitely
cause accidents. He also deposed that, Jayakumar, the rider
of the motorcycle died on the spot.
15. During cross-examination, PW3 deposed about
the point argued by the learned counsel for the accused
that the motorcycle was entrusted by its owner to
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Jayakumar at the workshop to cure its defect and the
accident took place when he and Jayakumar were on the
way to purchase spare parts to repair the motorcycle.
16. Similarly, during cross-examination, PW14 the
owner of the motorcycle, who was examined to prove the
release of the motorcycle on executing Ext.P15 Kaicheet,
deposed that the motorcycle was entrusted to the
deceased Jayakumar to repair its break failure. This is the
point on which the learned counsel for the
appellant/accused argued that the accident is the outcome
of mechanical defect of the motorcycle.
17. In this context, the evidence of PW15 supported
by Ext.P16 is crucial. On perusal of Ext.P16 Motor Vehicle
Inspector Report of the motorcycle would show that, in
column No.20, it was opined by PW15, the Motor Vehicle
Inspector that “the accident occurred not due to the
mechanical defect of the vehicle”. During cross-
examination of PW15, a question was asked as to whether
there was break failure to the motorcycle before the
accident, he answered that the break system was efficient
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even at the time of his examination. Thus, the available
evidence of the expert, a very competent witness, would
show that there was no mechanical defect to the
motorcycle, particularly break failure. Therefore, ignoring
this vital evidence, the evidence of PW3 and PW14 could
not be appreciated to hold that there was break failure to
the motorcycle or any other mechanical defect to the
motorcycle, to hold the same as the cause of the
occurrence. So, entrustment of the motorcycle at the
workshop might be for other repairs.
18. Apart from the evidence of PW3, the prosecution
examined PW4, who was working as a Third Grade
Overseer in Irrigation Chief Engineer’s Office, Museum and
he deposed during his chief-examination that, he was
aware about the occurrence on 02.12.2005 and the same
was in between 01.00 p.m. and 01.30 p.m. He deposed
that, two persons entered into Vellayambalam Road and the
KSRTC bus came in over speed and hit on the right side of
the motorcycle. Both riders of the motorcycle fell down and
in consequence thereof both of them sustained injuries and
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the rider sustained head injury also. Thereafter, the rider
was taken into hospital in a Police Jeep and later it was
known that the rider died. During cross-examination of
PW4, he reiterated that the bus came in over speed and the
same is the reason for the accident. Even though, some
portions of his statement were pointed out with a view to
contradict him, his answer was that he did not remember.
Ext.D3 is the contradiction marked when he denied the
statement that he looked at the spot on hearing the sound
of the vehicle.
19. PW5 examined in this case deposed that, he had
witnessed the occurrence happened at about 01.30 pm on
02.12.2005, while he was coming through Nandavanam in
an autorickshaw after purchasing articles. According to him,
the KSRTC bus over took another bus and dashed against
the motorcycle. He also pointed out the number of the bus
as T.S.344. According to him, the rashness and negligence
on the part of the driver of the bus caused the accident and
he identified the accused as the driver, who drove the
vehicle at the time of occurrence. In fact, his evidence
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regarding the occurrence as well as rashness and
negligence on the part of the accused are the reasons for
the accident, were not shaken during cross-examination.
20. It is true that during cross-examination of PW3,
his evidence is that, the Police never questioned or
recorded his statement at the time of occurrence. But, no
attempt made by the Public Prosecutor to re-examine PW3
to clarify the same. In this connection, the learned Public
Prosecutor would submit that, even though Section 161 (3)
of Cr.P.C., provides that the Police Officer may reduce into
writing any statement made to him in the course of an
examination under this section and if he does so, he shall
make a separate and true record of the statement of each
such person whose statement he records, the word used is
‘may’ and therefore, the recording of statement under
Section 161 of Cr.P.C. is not mandatory.
21. On perusal of the Final Report, PW3 examined in
this case was cited as the fourth witness to prove the
occurrence and his statement was recorded by the Police.
Therefore, the evidence given by PW3 that Police did not
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question him or record his statement is not true. Now, the
question arises for consideration is, merely because PW3
stated that his statement was not recorded by the Police
and the same was not clarified by the learned Public
Prosecutor with reference to his statement already
recorded, the evidence of PW3 is to be discarded? Since the
evidence of PW3 injured witness, who was cited as the
prime witness for the prosecution, regarding the occurrence
attaches credibility merely for the said reason, his evidence
in support of the prosecution could not be eschewed or
effaced, particularly when his evidence is supported by the
evidence of PW4 and PW5. Most importantly, even relying
on the evidence of PW4 and PW5 and eschewing the
evidence of PW3, the prosecution case is proved. Since
PW2, a witness who was working in an office near the place
of occurrence, was cited and examined by the prosecution,
the contention raised by the learned counsel for the
appellant/accused that no independent witness cited or
examined by the prosecution, also could not yield.
22. It is pointed out by the learned counsel for the
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accused that, even though prosecution has a case that the
accused did not possess a valid driving licence, as per
Ext.P4 Report, the licence he had was produced before the
Court, though not having validity on the date of occurrence,
but the same was not tendered in evidence. According to
the learned counsel for the accused, it is the duty of the
prosecution to prove the case against the accused beyond
reasonable doubt.
23. In this case, the prosecution case is that, the
accused had no valid driving licence and as per Ext.P4, the
driving licence he possessed was not renewed and the
same was produced before the Court also. But, the same
was not tendered in evidence.
24. In the instant case, the allegation of the
prosecution that the accused had driven KSRTC bus bearing
registration No.KL-15-3434 in a rash and negligent manner
at 01.00 p.m. on 02.12.2005 and caused death of the rider
of the motorcycle and hurt and grievous hurt to PW3, is
proved by the evidence of PW5, after identifying the
accused as the driver of the bus. His evidence is well
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supported by the evidence of PW4, an independent
witness, who was working as a Third Grade Overseer in
Irrigation Chief Engineer’s Office, Museum, during the
relevant time. That apart, PW3 the injured witness, also
deposed regarding the occurrence in tune with the
prosecution allegations. If so, the evidence relied on by the
trial court to find commission of offences punishable under
Sections 337, 338, 304A of IPC by the accused is perfectly
justifiable. Therefore, the conviction imposed against the
accused for the said offences does not require any
interference.
25. Coming to the offence under Section 3 read with
181 of the MV Act, in the instant case, as pointed out by the
learned counsel for the appellant/accused, this is not a
case, where an outright absence of driving licence was
alleged. The allegation is that, there was a valid driving
licence for the KSRTC bus driver (the accused), but the
same was not renewed. Thus, during the time of accident,
the accused did not possess a valid driving licence. In such
a case, the driving licence which was not valid referred in
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Ext.P4 should have been tendered in evidence to prove that
the said licence was not renewed and valid. In the instant
case, such an evidence is lacking. In such view of the
matter, based on the available evidence, it could not be
held that the accused had no valid driving licence at the
time of accident and the same is not established by the
prosecution with the aid of convincing evidence. In view of
the matter, the conviction and sentence imposed against
the accused for the offence punishable under Section 3
read with 181 of the MV Act is found to be unsustainable
and the same is liable to be set aside, while confirming the
conviction for the other offences.
26. Coming to the sentence imposed by the trial
court for the offences punishable under Sections 337, 338,
304A of the IPC is concerned, adverting the request made
by the learned counsel for the appellant/accused that the
same may be reduced, since the accused has been
suffering from various illness, I am inclined to modify the
same.
27. Point Nos.5 and 6:- In the result, the appeal
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stands allowed in part. The conviction imposed by the trial
court against the accused for the offences punishable
under Sections 337, 338, 304A of the IPC is confirmed,
while setting aside the conviction and sentence imposed
against the accused, by finding him guilty for the offence
punishable under Section 3 read with 181 of the MV Act.
The sentence imposed against the accused for the offences
punishable under Sections 337, 338, 304A of the IPC is
modified as under:
i. The accused is sentenced to undergo
rigorous Imprisonment for a period of six
months and to pay a fine of Rs. 10,000/-
(Rupees Ten thousand only) for the offence
punishable under Section 304A IPC and in
default of payment of fine to undergo Rigorous
Imprisonment for a further period of one
month.
ii. The accused is sentenced to undergo
rigorous Imprisonment for a period of one
month for the offence punishable under
Section 337 IPC and shall undergo rigorous
imprisonment for a period a two months for the
offence punishable under Section 338 of IPC.
iii. The substantive sentence shall run
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21concurrently and the default sentence shall run
separately, after the substantive sentence.
iv. The period of detention undergone by
the accused in this case will be set off against
the substantive sentence of imprisonment.
Registry is directed to forward a copy of this judgment
to the trial court for information and compliance, forthwith.
Sd/-
A. BADHARUDEEN
SK
JUDGE