IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 Crl.Rev.Pet.No. 744 of 2002() ---------------------------------------- CRA.92/1999 of II ADDL. SESSIONS COURT, PALAKKAD CC.119/1997 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PATTAMBI .................... REVN.PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------- USMAN, S/O. IBRAHIM, THOZHUKIL VEEDU, MUNDAKOTTUKURUSSY POST, SHORNUR - 2. BY ADV. MR.SAJAN VARGHEESE K. MR.JEBY JACOB RESPONDENT/RESPONDENT/COMPLAINANT: ----------------------------------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.C.M. KAMMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. Crl.Rev.Pet.No. 744 of 2002 ORDER ON CRL.MP. NO.4377/2002 IN CRRP NO.744/2002 DISMISSED 30/10/2009. SD/- P.Q.BARKATH ALI, JUDGE //TRUE COPY// P.S. TO JUDGE rs. P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P..No.744 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of October, 2009 ORDER Revision petitioner is the accused in C.C.No.119/1997 of Judicial First Class Magistrate Court , Pattambi and appellant in Crl.Appeal NO.92/1999 of Sessions Court, Palakkad. He was convicted for the offences punishable under Sections 279 and 304(A) of IPC and was sentenced to undergo rigorous imprisonment for one year under Section 304(A) of IPC by the trial court . No separate sentence was imposed under Section 279 of IPC. On appeal, the learned Sessions Judge confirmed the conviction, but reduced the substantive sentence to rigorous imprisonment for six months. Now the accused has come up in revision challenging his conviction and sentence. 2. The case of the prosecution as shaped in evidence before the trial court was that on January 14, 1997, the accused drove Auto rickshaw bearing Reg. No.KL-9/7147 in a rash and negligent manner so as to endanger human life through Kailiyadu - Vallapuzha public Crl.R.P.No.744/02 Page numbers road and knocked down a pedestrian, an old woman aged 61 who succumbed to the injuries sustained while undergoing treatment in hospital on January 16, 1997 which is an offence punishable under Sections 279 and 304(A) of IPC. 3. When the accused appeared before the trial court, he pleaded not guilty to a charge under Sections 279 and 304(A) of IPC. PWs 1 to 16 were examined and Exts.P1 to P9 were marked and Mos 1 and 2 were produced on the side of the prosecution. When questioned under Section 313 of Cr.P.C, the accused denied having committed any offence. No defence evidence was adduced. 4. On an appreciation of evidence, the trial court found the accused guilty of the offence punishable under Sections 279 and 304 (A) of IPC , convicted him and sentenced him as aforesaid. On appeal conviction was confirmed, but sentence was modified as aforesaid. Now the accused has come up in revision challenging his conviction and sentence. 5. The following points arise for consideration : 1) Whether the conviction of the revision Crl.R.P.No.744/02 Page numbers petitioner under Sections 279 and 304(A) of IPC by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 6. Pws 1 to 16 were examined and Exts. P1 to P9 were marked on the side of the prosecution to prove the guilt of the accused. PW1 is the first informer but he has not witnessed the incident. PWs 2 and 3 are alleged eye witnesses to the incident. They testified that the accident occurred due to the negligence on the part of the driver of the Auto rickshaw. No serious discrepancies or inconsistencies were brought out during their cross examination to discredit their evidence. Therefore, I feel that the lower court as well as the lower appellate court are justified in accepting their evidence and coming to the conclusion that the accident occurred due to the negligence on the part of the driver of the Auto rickshaw. PWs 4 and 5 are attestors to the inquest report ( Ext.P2) of the deceased. PWs6 and 7 are attestors to Crl.R.P.No.744/02 Page numbers scene mahazer - Ext.P3. PWs 8 and 9 are attestors to the body mahazer of Auto rickshaw - Ext.P4. PW 10 is the photographer to took the photographs of the dead body. Photographs and negatives are MO1 series. PW11 is the Head Constable who attested the seizure mahazer of the photographs. PW12 is the Police Constable who released the dead body to the relatives. PW13 is the Doctor who examined the deceased and issued the wound certificate - Ext.P6 on 14-01-1997 at 4.50 P.M. PW 14 is the Doctor who conducted postmortem examination of the dead body of the deceased and issued the certificate - Ext.P7. PW 15 is the Head Constable who conducted investigation in this case. PW 16 is the Circle Inspector who completed the investigation and laid the charge sheet. 6. Counsel for the revision petitioner argued that deceased died not as a result of the injuries sustained in the accident as immediately after she was admitted in the hospital , she was discharged from there and only after two days she died. But Ext.P7 postmortem certificate shows that the deceased died of head injury. The accused has no case that deceased sustained the said head injury in some other Crl.R.P.No.744/02 Page numbers accident. Therefore, both courts below are justified in coming to the conclusion that the deceased died as a result of the injury sustained in the accident. 7. For all these reasons, I am inclined to uphold the finding of the trial court which is confirmed in appeal that the accident occurred due to the negligent driving of the offending Auto rickshaw by the accused and the deceased died as the result of the injury sustained in the accident. Thus I confirm the conviction of the revision petitioner under Sections 279 and 304(A) of IPC. Point No.2 8. As regards the sentence, the incident happened in 1997 i.e. about 12 years back. Further initially the deceased was discharged from the hospital as there was no external symptoms of the injury sustained. She was an old woman aged 61. It is submitted by the counsel for petitioner that the legal heirs of deceased have obtained compensation from Motor Accidents Claims Tribunal. The accused is an Auto rickshaw driver . Taking into consideration all these aspects, I feel that the sentence can be reduced to imprisonment till the rising of Crl.R.P.No.744/02 Page numbers court and a fine of Rs. 50,000/- would meet the ends of justice. In the result, Criminal Revision Petition is allowed in part. Conviction of the revision petitioner under Section 279 and 304(A) of IPC is confirmed. The sentence is modified to the effect that the accused is sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs. 50,000/- , in default, to undergo simple imprisonment for six months. The fine amount, if realised, shall be paid to PW1, the daughter of the deceased as compensation as provided under Section 357(1) Cr.P.C . His bail bonds are cancelled. The revision petitioner shall surrender before the trial court on or before 30- 11-2009 to receive the sentence. Three moth's time is granted for payment of fine. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.744/02 Page numbers Crl.R.P.No.744/02 Page numbers P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.744/02 Page numbers