IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 Crl.Rev.Pet.No. 1176 of 2002(A) -------------------------------------------- CRL.A.NO.190/1997 OF ADDL.SESSIONS COURT, THALASSERY, CC.NO.262/1993 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- MARANTE MOHANAN, S/O.KUNHAMBU, AGED 42 YEARS, RESIDING AT VELLUR AMSOM DESOM, P.O KANDOTH, (VIA) PAYYANNUR, TALIPARAMBA TALUK. BY ADV. MR.M.V.AMARESAN. RESPONDENT/RESPONDENT: ------------------------------------------- STATE REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. PUZHAKKARA MUHAMMED. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/10/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P.NO.1176/2002-A: ORDER ON CRL.M.P. NO. 7933/2002 IN CRL.R.P. NO. 1176/2002-A DISMISSED 16/10/2009. SD/- P.Q.BARKATH ALI, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P.No. 1176 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 16th day of October, 2009 O R D E R Revision petitioner is the accused in C.C. No.262 of 1993 of the Judicial Magistrate of the First Class, Payyannur and appellant in Crl.A.No.190 of 1997 of the Additional Sessions Court, Thalassery. He was convicted under sections 279 and 304A IPC by the trial court and sentenced to undergo simple imprisonment for three months under section 279 IPC and simple imprisonment for six months under section 304A IPC. Substantive sentences were ordered to be run concurrently. On appeal by the accused, the lower appellate court confirmed the conviction and sentence. 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 12, 1993 at about 11.45 P.M. the accused drove the autorickshaw bearing registration No. KLN 7239 in a rash and negligent manner along with National High Way at Kathayimukku and knocked down the deceased Kannan who was walking along with the western side of the road. He sustained grievous injuries and later succumbed to the injuries CRRP 1176/02 2 sustained and thereby committed the offences punishable under sections 279 and 304A IPC. 3. When the accused appeared before the trial court, he pleaded not guilty to charge under sections 279 and 304A IPC. PWs.1 to 9 were examined and Exts.P1 to P6 were marked on the side of the complainant. When questioned under section 313 Cr.P.C., the accused denied the entire allegations. The doctor who conducted the postmortem was not cited as a witness on the side of the prosecution. Therefore, he was examined as a court witness as CW1 by the trial court and postmortem certificate was marked as Ext.C1. The trial court, on an appreciation of the evidence, found the revision petitioner guilty of the offences punishable under sections 279 and 304A IPC, convicted him thereunder and sentenced him as aforesaid. On appeal, the appellate court confirmed his conviction and sentence. 4. The following questions arise for consideration in this case:- 1. Whether the conviction of the revision petitioner under sections 279 and 304A IPC by the trial court which is confirmed in appeal by the lower appellate court can be sustained? 2. Whether the sentence imposed on the revision petitioner is excessive or unduly harsh? 5. The learned counsel for the revision petitioner argued that the identity of the person who drove the autorickshaw was not proved, that the CRRP 1176/02 3 scene of incident is different from what is stated in the mahazar and that the injuries on the body of the deceased could not have been caused in the incident occurred in the manner alleged by the prosecution. 6. On the side of the prosecution, PWs.1 to 9 were examined and Exts.P1 to P6 were marked. The accident is not disputed by the accused and it is also proved by the evidence of CW1 doctor who conducted the postmortem that the deceased died as a result of the injuries sustained in the accident. Therefore, the main question for consideration is whether the prosecution has succeeded in proving the guilt of the accused. The accused was the driver of the autorickshaw involved in the accident. PW1 testified before the trial court that while himself and his father-in-law were walking on the side of the road, the autorickshaw came behind and knocked his father-in-law down, that immediately himself and the autorickshaw driver took him to the local hospital, from where he was referred to the District Hospital and that on the way to the hospital, his father-in-law died. PW1 specifically stated that when the accident occurred, the autorickshaw driver came out of it and himself and the accused took his father-in-law to the hospital. I have gone through the evidence of PW1. I find no suspicious inconsistencies or discrepancies to discredit his evidence. His evidence clearly proves that the accused was the driver of the offending autorickshaw CRRP 1176/02 4 at the time of the accident and that the accident happened in the manner as alleged by the prosecution. 7. PWs.2 and 3 the alleged eye witnesses turned hostile and did not support the prosecution. PW4 is an attester to the scene mahazar Ext.P2. PW5 is the person who is a witness to the inquest report Ext.P3. PW6 is the doctor of Government Hospital, Payyannur who examined the deceased and issued Ext.P4 wound certificate. He referred the deceased to District Hospital, Payyannur. PW7 is another attester to the inquest report Ext.P3. PW8 is the then Sub Inspector of Police, Payyannur Police Station who registered the F.I.R. Ext.P1(a) on the basis of the statement given by PW1 and prepared Ext.P3. PW9 is the Circle Inspector of Police, Payyannur at that time who conducted the investigation, arrested the accused and laid the charge before the trial court. 8. In Ext.P5 wound certificate issued by PW6 shows that deceased sustained an incised wound of the scalp, lacerated wound on the left forearm, lacerated wound on the right wrist, lacerated wound on the right knee joint and multiple injuries on his leg. According to prosecution, the deceased was walking along the side of the road and the autorickshaw came at a high speed from behind and knocked him down. The counsel for the revision petitioner argued that if the above case of the prosecution is CRRP 1176/02 5 accepted, the deceased would have sustained injuries on the back or front and that as the injuries found on the deceased were on the side of the body, the above case of the prosecution cannot be accepted. I am unable to agree. The injuries sustained by the deceased might have been caused when he fell on the road. Therefore, the above contention of the revision petitioner that the accident did not happen in the manner as alleged by the prosecution cannot be accepted. That apart, the accident occurred while the deceased was walking along the western side of the road. The fact that the offending vehicle came to the western end of the road and hit the deceased itself shows that there was negligence on the part of the driver of the autorickshaw. For all these reasons, I am inclined to confirm the finding of the trial court as well as the lower appellate court that the accident occurred due to the rash and negligent driving of the offending autorickshaw by the revision petitioner/accused. Therefore, I confirm the conviction of the revision petitioner under sections 279 and 304A IPC. 9. Regarding the sentence, the trial court imposed a sentence of simple imprisonment for three months under sections 279 IPC and simple imprisonment for six months under 304A IPC. In the incident the deceased died. The incident occurred in 1993 about 15 years ago. Taking into consideration these aspects, I feel that sentence of simple imprisonment CRRP 1176/02 6 under section 304A IPC can be reduced to three months. 10. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under sections 279 and 304A IPC are confirmed. The sentence imposed on the revision petitioner under section 279 is also confirmed and the sentence under section 304A IPC is reduced to simple imprisonment for three months. Substantive sentences shall run concurrently. His bail bonds are cancelled. The revision petitioner/accused shall surrender before the trial court on or before November 20, 2009. P.Q. BARKATH ALI, JUDGE mn CRRP 1176/02 7 P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Crl.R.P.No. 1176 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O R D E R 16th day of October, 2009