IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 Crl.Rev.Pet.No. 80 of 2009(D) ---------------------------------------- CRL.A.150/2007 OF ADDL. SESSIONS COURT (ADHOC)-I, MANJERI, CC.NO.852/2002 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR. .................... REVISION PETITIONER/ APPELLANT/ ACCUSED: ---------------------------------------------------------------------- JOHNY @ JOHN, S/O.THOMAS, PORATHUR HOUSE, MUNDOOR P.O, THRISSUR. BY ADVS. MR.C.A.CHACKO, MR.C.M.CHARISMA, MR.N.A.SHAFEEK. RESPONDENT/ RESPONDENT/ COMPLAINANT: ------------------------------------------------------------------- THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. C.M. NAZAR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.80 OF 2009 ------------------------------------------ Dated 28th January 2009 O R D E R Revision petitioner is the accused in C.C.852/2002 on the file of Judicial First Class Magistrate, Tirur. Revision petitioner was convicted and sentenced to simple imprisonment for three months for the offence under Section 279 and one year for the offence under Section 338 of Indian Penal Code. Revision petitioner challenged the conviction and sentence before Additional Sessions court, Manjeri in Crl.A.150/2007. Learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for revision petitioner was heard. 3. Argument of the learned counsel is that courts below did not properly appreciate the evidence and failed to note the contradictory evidence of Pws.1 to 3. It was also argued that evidence establish that CRRP 80/09 2 the incident occurred not due to any rash and negligent driving of the lorry by revision petitioner but as revision petitioner lost the control of the vehicle and therefore the conviction is not sustainable. Learned counsel submitted that revision petitioner is not involved in any rash and negligent driving earlier or after and in such circumstance, leniency may be shown and instead of substantive sentence fine may be imposed. Learned Public Prosecutor on verifying the details, under instructions, submitted that revision petitioner was not involved in any other offence of this nature earlier or after. 4. On going through the judgments of the courts below it is absolutely clear that evidence was properly appreciated by the courts below. Fact that revision petitioner was driving mini lorry KL-7-Q/630 on 1/8/2002 at 5.40 p.m along Valancheri National High Way and at Vattappara curve it hit on the back side of Ambassador car KRH-6355 which was proceeding in front of the lorry and due to collision grievous hurt was caused to PW1 and Khadeeja who was not examined. Fact that revision petitioner was the driver of the lorry, which hit on the Ambassador car driven by PW3 which was proceeding in front of the lorry was not disputed. CRRP 80/09 3 5. On going through the judgments of courts below I cannot agree with the submission of the learned counsel that evidence was not properly appreciated. Evidence conclusively establish that the incident occurred due to the rash and negligent driving of the lorry by revision petitioner and by such driving grievous hurt was caused to Pw.1 and Khadeeja. Evidence of PW4 establish that due to the injury sustained the left leg of Khadeeja had to be amputated and PW1 sustained fracture of his leg. In such circumstances, conviction of revision petitioner for the offence under Sections 279 and 338 of Indian Penal Code is perfectly legal. 6. Then the question is regarding the sentence. Section 279 of Indian Penal Code provides for a sentence of imprisonment which may extent to six months or fine which may extent to one thousand rupees or both. Learned Magistrate awarded a substantive sentence of simple imprisonment for three months for that offence. Considering the entire facts, interest of justice will be met, if the sentence for the offence under Section 279 is modified to the maximum fine of Rs.1,000/- provided for the offence. Section 338 of Indian Penal Code provides for a sentence of simple imprisonment which may extend to two years, or fine which may extend to five CRRP 80/09 4 thousand rupees or both. Learned Magistrate awarded a substantive sentence of simple imprisonment for one year. Considering the entire facts and circumstances of the case, interest of justice will be met if the sentence under Section 338 of Indian Penal Code is modified to imprisonment till rising of court and compensation of Rs.10,000/- each to CW2 Khadeeja PW1 Kunhalavi. 7. Revision is allowed in part. Conviction of revision petitioner for the offence under Sections 279 and 338 of Indian Penal Code are confirmed. Sentence is modified as follows. Revision petitioner is sentenced to a fine of Rs.1,000/- and in default simple imprisonment for one month for the offence under Section 279. For the offence under Section 338 revision petitioner is sentenced to imprisonment till rising of court. Revision petitioner is also directed to pay a compensation of Rs.10,000/- each to CW2 Khadeeja and PW1 Kunhalavi. Revision petitioner is directed to appear before the Judicial First Class Magistrate, Tirur on 3/3/2009 and pay the compensation. M.SASIDHARAN NAMBIAR, JUDGE. uj.