IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MRS. JUSTICE MARY JOSEPH

WEDNESDAY, THE 18TH DAY OF JANUARY 2017 / 28TH POUSHA 1938

CRL.A.No. 633 of 2009

AGAINST THE JUDGMENT IN SC 610/2008 of ADDL. DISTRICT COURT(ADHOC 2),

THRISSUR DATED 18-03-2009
AGAINST THE ORDER IN CP 7/2004 of J.M.F.C.-I,THRISSUR

APPELLANT(S)/ACCUSED

SURESH, S/O.KOCHUNNI,
KUNNATHUVALAPPIL HOUSE, VALLISSERY DESOM,, AVINISSERY
VILLAGE, THRISSUR.

BY ADVS.SRI.P.VIJAYA BHANU
SMT.P.MAYA

RESPONDENT(S)/COMPLAINANT:

STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-01-2017,

THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

 MARY JOSEPH, J.
----------------------------------------
Crl.Appeal No.633 of 2009 CR
-----------------------------------------
Dated this the 18th day of January, 2017

ORDER

This Crl.Appeal is directed against the judgment of

the Additional Sessions Judge, Fast Track Court No.II (Adhoc)

Thrissur (for short 'the court below') in S.C.No.610/2008. The

accused was found by the court below guilty and convicted

and sentenced to undergo simple imprisonment for 6 months

and to pay a fine of Rs.1,000/- and in default of payment of

fine to undergo simple imprisonment for 15 days for the

offence under Section 279 IPC and to undergo simple

imprisonment for 1 year and to pay a fine of Rs.5000/- and in

case of default to pay the fine to undergo simple

imprisonment for 3 months for the offence under Section

304A IPC. The appellant is the accused and the respondent is

the complainant, represented by the State.

2. For the sake of convenience, the parties to this

appeal are referred to hereinafter as the complainant and the

Crl.A.No.633 of 2009
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accused, in accordance with their original status before the

court below.

3. The facts of the case in brief are to the following

effect :-

On 08.01.2004 at about 19.45 hours, the accused was

discharging his duties as a driver of the bus bearing

Reg.No.KL 8A 687 and while proceeding from Kodungallur to

Thrissur, due to his driving in a rash and negligent manner, he

caused the bus to hit a pedestrian namely Kuttamani. Fatal

injuries were caused to him and he succumbed to those. The

prosecution case was originated from an FIR registered as

Crime No.14/2004 of Cherpu Police Station, on the basis of

the First Information Statement lodged by the son of

Kuttamani, the deceased. The investigation in the case was

conducted by the Circle Inspector of Police, Cherpu Police

Station. After concluding the investigation, a final report was

laid before the Judicial First Class Magistrate Court No.I,

Thrissur. The offence under Section 304 A being exclusively

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triable by a court of Session, the Magistrate vide proceedings

initiated by it as 7/2004, committed the case to the Court of

Sessions, Thrissur, wherefrom the case was made over to the

court below for trial.

4. The accused entered appearance on summons

being served upon him. After hearing the prosecution and the

defence, the court below framed charge against him under

Section 279 and 304A IPC, and the same when read over and

explained to him, he pleaded not guilty and faced trial.

5. On the side of the prosecution, 16 witnesses

were examined as Pws. 1 to 16 and 11 documents and 2

material objects were marked respectively as Exts.P1 to P11

and MOs 1 and 2.

6. On closure of the prosecution evidence, the

accused was subjected to examination under Section 313(1)(b)

Cr.P.C., based on the incriminating circumstances brought in

evidence against him by the prosecution. The incriminating

circumstances put to him were denied, but a specific

Crl.A.No.633 of 2009
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contention was taken that Kuttamani, the deceased died

consequent to a hit by a car.

7. Since grounds are not made out under Section

232 Cr.P.C., to arrive at an order of acquittal, the accused was

called upon to enter on their defence. A witness was

examined as DW1 and Exts.D1, D1(a)(a) and D2 were marked

on his side. After evaluating the evidence and upon hearing

the rival contentions advanced by the learned Public

Prosecutor and the counsel for the defence, the court below

arrived at a finding of guilt against the accused under Section

279 and 304A IPC and accordingly, convicted and sentenced

him, by the judgment dated 18.03.2009, aggrieved by which,

the accused has approached this Court in the captioned

appeal seeking to reverse the finding, having due

consideration of the grave error committed by the court below

while appreciating the evidence of the witnesses examined by

the prosecution.

8. Sri.V.C.Sarath, the learned counsel for the

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appellant and Smt.Rekha C.Nair, the learned Public Prosecutor

appearing for the complainant/State were heard.

9. The arguments of the learned counsel for the

accused are centered around mainly on two points. The first

one is purely a legal one and is based on Section 228 Cr.P.C.

The second argument is strictly confined to the inconsistency

in the evidence of the witnesses examined by the prosecution.

10. Sri.V.C.Sarath, the learned counsel for the

accused contended at the outset that the trial in the case was

conducted by the Additional Sessions Judge, Fast Track Court

No.II (Adhoc), Thrissur without any authority to do so and

accordingly, is vitiated. According to him, the offences

alleged by the prosecution and for which the accused was

chargesheeted by the Police are those punishable under

Section 279 and 304A IPC. The Judicial First Class Magistrate

Court, Thrissur, who has taken the final report on file, had

committed the case to the Sessions court, Thrissur after

having been convinced that the offence under Section 304A is

Crl.A.No.633 of 2009
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exclusively triable by the Court of Sessions. The case

thereafter was made over to the court below.

11. The court below after hearing the prosecution

and the defence, framed a charge against the accused for the

offences punishable under Sections 279 and 304A IPC. The

offences for which the accused was charged by the court

below are triable only by a Judicial First Class Magistrate

Court. But the court below after framing the charge,

proceeded with the trial in violation of the mandate in Section

228 Cr.P.C, which for the sake of convenient reference is

extracted hereinbelow:-

“228. Framing of charge - (1) If, after such consideration

and hearing as aforesaid, the Judge is of opinion that
there is ground for presuming that the accused has
committed an offence which -
(a) is not exclusively triable by the Court of Session, he
may, frame a charge against the accused and, by order,
transfer the case for trial to the Chief Judicial Magistrate
[or any other Judicial Magistrate of first class and direct
the accused to appear before the Chief Judicial
Magistrate, or, as the case may be, the Judicial Magistrate
Crl.A.No.633 of 2009
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of the first class, on such date as he deems fit, and

thereupon such Magistrate] shall try the offence in
accordance with the procedure for the trial of warrant-
cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in
writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of
sub-section (1), the charge shall be read and explained to
the accused and the accused shall be asked whether he
pleads guilty of the offence charged or claims to be
tried.”

12. It is provided under Section 228 Cr.P.C. that if

on a prima facie consideration of the materials of the case on

record and the arguments advanced, sufficient grounds are

made out, for the court to presume that the accused has

committed an offence not exclusively triable by it, it may

frame a charge against the accused and transfer the case for

trial to the Chief Judicial Magistrate or to any other Judicial

First Class Magistrate and direct the accused to appear before

the Chief Judicial Magistrate or as the case may be, the Judicial

First Class Magistrate, on such date as he deems fit and

Crl.A.No.633 of 2009
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thereupon such Magistrate shall try the offences in accordance

with the procedure for the trial of warrant cases instituted

based on a police report. In case, if it is found that offences

involved are exclusively triable by the court itself, a charge

shall be framed by itself against the accused and the trial shall

be proceeded with.

13. In the case on hand, after forming an opinion

that sufficient grounds exist for proceeding against the

accused for the offences under Sections 279 and 304 A, and

framing of charge against the accused for the said offences,

though the offences under Section 304 A is not one

exclusively triable by the court of session, the court below did

not transfer the case by order to the Chief Judicial Magistrate

or the Judicial First Class Magistrate, but proceeded with the

trial on its own. Or in other words, the court below has

proceeded with the trial after framing the charge for the

offences knowingly that those are not exclusively triable by it.

Thus the court below has committed an irregularity.

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14. The question writs large for consideration in

the context on hand is to see whether that irregularity would

vitiate the trial. In this connection Sri.V.C.Sarath, the learned

counsel has drawn my attention to Section 461 Cr.P.C. which

is extracted hereunder for easy reference:-

“461. Irregularities which vitiate proceedings - If any

Magistrate, not being empowered by law in this behalf,
does any of the following things namely:-
(a) attaches and sells property under Section 83;
(b) issues a search-warrant for a document, parcel or
other thing in the custody of a postal or telegraph
authority;
(c) demands security to keep the peace;
(d) demands security for good behaviour;
(e) discharges a person lawfully bound to be of good
behaviour;
(f) cancels a bond to keep the peace;
(g) makes an order for maintenance;
(h) makes an order under section 133 as to a local
nuisance;
(i) prohibits, under section 143, the repetition or
continuance of a public nuisance;
(j) makes an order under Part C or Part D of Chapter X;
(k) takes cognizance of an offence under clause (c) of
sub-section (1) of section 190;
Crl.A.No.633 of 2009
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(l) tries an offender;

(m) tries an offender summarily;
(n) passes a sentence, under section 325, on
proceedings recorded by another Magistrate;
(o) decides an appeal;
(p) calls, under section 397, for proceedings; or
(q) revises an order passed under section 446,
his proceedings shall be void.”

Section 461 Cr.P.C. describes in precise terms the

irregularities that would vitiate the proceedings. It is

specifically provided under clause (l) of sub-section(1) of

Section 461 Cr.P.C. that when a court tries an offender without

being empowered to do so, as per the mandate in Section 228

Cr.P.C., the accused in the case on hand ought to have been

tried by the Judicial First Class Magistrate empowered to do

so by the Code of Criminal Procedure and in the event of the

same having been conducted by the Court of Sessions,

without being empowered to do so, proceedings is irregular

and is void.

15. On the merits of the case, Sri.V.C.Sarath, the

Crl.A.No.633 of 2009
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learned counsel for the petitioner submitted that PWs 2 to 4,

the ocular witnesses examined by the prosecution did not give

evidence in corroborative terms. According to him, the

evidence of each witnesses, if considered independently also,

an opinion regarding the occurrence and commission of the

offence is difficult to be formed so as to base a finding of guilt

of the accused. According to the counsel, several omissions,

embellishments and discrepancies have been crept into the

evidence of the witnesses examined by the prosecution and

the court below ought not to have arrived at a finding of guilt

against the accused for the offences with which he was

charged.

16. In the backdrop of the contentions so advanced

by the learned counsel, it is apposite to have an indepth

analysis of the versions of the witnesses independently.

17. PW2, Francis claimed to have witnessed the

incident and deposed accordingly. He has stated in the box

that the incident was occurred 30-35 metres away from the
Crl.A.No.633 of 2009
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shop where he was sitting at the relevant time of the incident.

According to him, he rushed out from the shop to the spot on

hearing the sound of collision of the vehicles. He would also

state that when reached at the spot, the victim was found

lying on the road in a pool of blood. If the version of PW1 was

appreciated in the proper way, it could be gathered that he

reached the spot only after the alleged occurrence.

Admittedly, PW1 has no previous acquaintance with the

accused and accordingly, has not stated any identification

marks of the accused to the police when he was questioned.

But, PW1 identified all the accused in the dock. His specific

case was that the Investigating Officer has not questioned him

showing the accused in the course of the investigation.

According to him, the incident was witnessed by him in the

street light as well as in the light that emanates from the bus.

But, defence has successfully pointed to this Court during

cross-examination that, the said statement was only an

embellishment. Therefore, the version having been spoken by

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the witness for the first time in the court and identification of

the accused having been done first in point of time in court,

those pieces of evidence cannot be given much weight. The

definite case of the witnesses was that identification marks of

the accused have not been noted by him. Admittedly,

previous acquaintance of the accused was not there. He had

also no occasion to see the accused during investigation.

Therefore, the identification for the first time in the court

cannot be given much weight. These circumstances, as rightly

contended by the learned counsel, would only tend to

disbelieve the version of PW2.

18. PW3, Unnikrishnan claims to have witnessed

the incident in the street light and from the light available at

the shops and other vehicles situated near to the place of

occurrence at the relevant time. The defence has brought to

light during cross examination that PW3 had not stated those

aspects when questioned by the Investigating Officer.

Moreover, a stationery shop alone is described in Ext.P7, the

Crl.A.No.633 of 2009
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scene mahazar as situated at a distance of 12 metres from the

place of occurrence. Ext.P7 is silent about the presence of

several shops near to the place of occurrence. PW3's version

that the occurrence was witnessed by him in the presence of

lights of several shops situated near the place, therefore,

cannot be given credence to. Ext.P7, though discloses about

the presence of electric posts near to the place of occurrence,

does not describe whether the lights thereon were put on.

19. The specific case of PW3 in the box was that the

bus proceeded from south to north through the eastern side

of the road. According to him, the bus stopped after the

incident by proceeding further ahead to a short distance and

the driver alighted from the vehicle and proceeded to the

northern direction. In cross examination, he has stated that

the establishment wherein he was working is situated at the

northern side of the place of occurrence at a walkable distance

of 5 minutes. He has also stated that usually he reaches home

after his work at 6.30 - 6.45 hours and at times he would

Crl.A.No.633 of 2009
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reach later than that. It is pertinent to note that the witness

has not stated any reason for his deviation from his usual

practice on that day. He has identified the accused in the

court and that identification is suspicious when viewed in the

backdrop of his version that he has no acquaintance with the

driver and at the time when the bus was stopped, by its driver

he was behind the bus. It is impossible for a person having

no acquaintance with the accused to identify him at a later

point of time especially when his first glance of him was from

his back side. Therefore, PW3 cannot be said to have

identified the accused from the spot in such circumstances,

and accordingly credibility is not liable to be fastened on his

identification of the person firstly, from the court. PW3's

further version that the incident was witnessed by him in the

light from the car proceeding from the northern side and that

the car reached the spot only after two minutes of the incident

is also liable to be discredited on account of the discrepancy

involved. PW3 has spoken in the box during investigation that

Crl.A.No.633 of 2009
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the accused was shown to him by the Police during

investigation and therefore, his identification of the accused in

the court can only be, from the familiarity gained therefrom.

20. The version of PW3 that the accused was

identified in the light from the car proceeding from north to

south cannot be believed at all when he himself has stated

that the car reached the spot only after two minutes of the

incident. The aforesaid aspects are indications to doubt the

creditworthiness of PW3.

21. PW4, Sri.Jagadeesan was the driver of the car at

the relevant time when he reached the spot after the incident.

His version was that a bus proceeded from south in exorbitant

speed, hit against a pedestrian at the eastern side of the road.

This version of PW4 turns out to be an embellishment when it

was brought to light on confrontation by the defence that

such a version does not find a place in the statement given by

him to the Police. PW4 has spoken during examination that

the car and the bus were proceeding, maintaining a distance

Crl.A.No.633 of 2009
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of 15 metres. It is also his further case that on watching the

incident, he stopped his car by the side of the road. According

to him, when he stopped the car, the bus was also stopped at

the spot of incident and the driver of the bus got down from

the bus and walked to the northern direction. His further

version that at the relevant point of time of occurrence, he

was standing at a distance of 15 metres away from the place

of incident and that the driver proceeded to the northern

direction after stopping the bus are circumstances to doubt

his credibility as an ocular witness. The credibility of his

version that the accused was identified by him in the light of

the car also turns doubtful in view of the inconsistency

involved in his version that the car reached the spot after two

minutes of the incident and that the car was stopped only 15

metres away from the place where the bus was stopped. His

version that Kuttamani, the victim was found walking through

the mud road of the road at the eastern side is only to be

viewed with suspicion when considered in the backdrop of the

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description of the place of occurrence as the eastern tarred

end in Ext.P7 Scene Mahazar.

22. Therefore, the versions of Pws. 2 to 4 being

inconsistent in several material particulars are only to be

viewed with suspicion and the indication possibly drawn

therefrom was that the witnesses have not actually witnessed

the incident, but are chance witnesses cited by the

prosecution to establish its case. The fact that the incident

was occurred at 7.45 p.m. is also a factor liable to view them

as untrustworthy witnesses.

23. In view of the legal flaw pointed out by the

learned counsel for the petitioner, the trial held is irregular

and therefore, is void. In view of the inconsistencies pointed

out by the learned counsel in the versions of the witnesses

cited and examined as ocular witnesses, the prosecution case

fails. The impugned judgment in the said circumstances is

only liable to be set aside.

In the result, the Crl.Appeal succeeds and stands

Crl.A.No.633 of 2009
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allowed. The impugned judgment, finding the accused guilty

for the offences under Section 297 and 304A IPC is declared

as void. The bail bond of the accused shall stand cancelled.

He is set at liberty forthwith.

Sd/-

MARY JOSEPH,
JUDGE

vs

-true copy-

P.S.TO JUDGE