IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 CRL.REV.PET.NO. 2834 OF 2009() ---------------------------------------------- CRA.75/1991 OF III ADDL.SESSIONS COURT, ERNAKULAM CC.11/1989 OF JUDL.MAGISTRATE OF FIRST CLASS, KOLENCHERRY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------- ALIYAR S/O. ALI MARAKKAR, AGED 46 YEARS, VLIPARAMBU VEEDU, KITHAKKAD KARA, KUNNATHUNAD. BY ADV. SRI.PAUL K.VARGHESE RESPONDENT(S): COMPLAINANT ----------------------------------------------- STATE OF KERALA, REP. BY SUB INSPECTOR OF POLICE, CITY TRAFFIC POLICE KOCHI CITY REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.2834 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 28th day of August, 2009 O R D E R -------------- This revision is in challenge of judgment of learned Additional Sessions Judge, Ernakulam in Crl. Appeal No.75 of 1991 confirming conviction and sentence of petitioner for offence punishable under Sections 279 and 338 of the Indian Penal Code (for short, the IPC) in C.C. No.11 of 1989 of the court of learned Judicial First Class Magistrate, Kolenchery. Case is that on 25.8.1988 at about 2.10 p.m. petitioner drove the offending bus in a rash and negligent manner so as to endanger human life and caused to hit a Scooter which P.W.1 was riding resulting in grievous hurt of him. Courts below found that accident occurred due to the rashness and negligence of petitioner. That finding is under challenge in this revision. That P.W.1 suffered grievous hurt on the relevant day and time is proved by the evidence of P.Ws.1 and 4. P.W.7, Assistant Motor Vehicle Inspector inspected the vehicles and issued Exsts.P1 and P2 certifying that accident was not due to any mechanical defect of either of the vehicles. 2. Prosecution examined P.Ws.1 to 6 and 8 and proved Exts.P1 to P8(a) to prove the accident. Of them P.Ws.1 and 4 CRL. R.P. No.2834 of 2009 -: 2 :- supported prosecution. Evidence of P.Ws.1 and 4 shows that while P.W.1 was riding the Scooter from west to east along the northern side of the road, bus driven by petitioner came from east to west and hit the Scooter. P.Ws.1 and 4 identified petitioner as the driver of the offending bus. P.W.6 is one of the employees in the bus. Exhibit P8 is the mahazar for scene of occurrence. Though width of tar portion is not given it is seen that the accident occurred 1.8 metres south of the norther tar end. Courts below based on the evidence of P.Ws.1 and 4 and Ext.P8 came to the conclusion that northern side is the wrong side of the bus. There is also the evidence of P.Ws.1 and 4 that bus was coming at excessive speed. Thus there is evidence to show that petitioner was driving the bus at excessive speed, it went to the wrong side and caused the accident. That proved rashness or negligence on the part of petitioner. In these circumstances the courts below are justified in holding that petitioner drove the bus rashly or negligently and caused the accident. I find no reason to interfere with that finding. 3. Learned counsel contended that sentence imposed is excessive and submitted that leniency may be shown. Counsel submits that petitioner was employed abroad for some time and has CRL. R.P. No.2834 of 2009 -: 3 :- now returned to his native place. It is contended that P.W.1 was compensated by the insurer of the offending vehicle. Learned counsel further submitted that petitioner is not involved in any other case of similar nature before or after the accident in this case. 4. Learned magistrate sentenced petitioner to undergo simple imprisonment for three months each under Secs.279 and 338 of the IPC. Having regard to the age of petitioner and circumstances stated by learned counsel I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice. At the same time P.W.1 who suffered grievous hurt at the hands of petitioner has to be compensated. It is seen from paragraph 16 of the judgment of trial court that P.W1 suffered grievous hurt including two fractures. Having regard to the nature of injuries suffered by P.W1, and pain and agony he has undergone I direct that petitioner shall pay Rs.15,000/- as compensation to P.W1. In case of failure, petitioner has to undergo simple imprisonment for three months. Resultantly, revision petition is allowed in part to the following extent: (i) Substantive sentence awarded to CRL. R.P. No.2834 of 2009 -: 4 :- the petitioner under Secs.279 and 338 of the IPC is modified as simple imprisonment till rising of the court. (ii) Petitioner is directed to deposit in the trial court for payment to P.W.1 Rs.15,000/- (Rupees Fifteen thousand only) as compensation under Sec.357(3) of the Code of Criminal Procedure on or before 5.10.2009 failing which he shall undergo simple imprisonment for three months. Petitioner shall appear in the trial court on 7.10.2009 to receive the sentence. It is made clear that it is open to the petitioner to appear in the trial court on any day before 7.10.2009, suffer sentence and deposit compensation as ordered above. THOMAS P.JOSEPH, JUDGE. vsv