IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 Crl.Rev.Pet.No. 3575 of 2007() ------------------------------ CC.395/1997 of JUDICIAL FIRST CLASS MAGISTRATE, PERINTHALMANNA CRA.363/2004 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- P.MANI, S/O.PERIYASWAMY, NO.3/55A, PALAYA PALAYAM, NAMAKKAL, TAMILNADU. BY ADV. SRI.K.M.SATHYANATHA MENON SMT.S.SMITHA (PARAKKAL) RESPONDENT/ RESPONDENT/ COMPLAINANT & STATE -------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/01/2009, THE COURT ON 06/01/2009 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.3575 OF 2007 ------------------------------------------ Dated 6th January 2009 O R D E R Revision petitioner was convicted and sentenced to rigorous imprisonment for 1½ years and fine of Rs.3,000/- and in default simple imprisonment for three months for the offence under Section 304 A of Indian Penal Code. Though petitioner was convicted for the offences under Sections 279, 337 and 338 of Indian Penal Code, in view of the sentence awarded under Section 304 A, no separate sentence was awarded for those offences. Petitioner challenged the conviction before Sessions court, Manjeri in Crl.A.363/04. Learned Additional Sessions Judge on re- appreciation of evidence confirmed the conviction and the sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for revision petitioner and learned Public Prosecutor were heard. 3. Arguments of learned counsel appearing for revision petitioner is that there is no conclusive CRRP 3575/07 2 evidence to prove that the incident occurred due to the rash and negligent driving of the lorry by revision petitioner. It was argued that evidence of Pws.1 and 2 which was relied on by the courts below are mutually contradictory as scene mahazar does not establish existence of a mill as claimed by PW1 and evidence of PW1 should not have been relied on. Learned counsel also argued that scene mahazar shows that lorry was at the proper side of the road and as lorry was proceeding from west to east and road is lying east-west and no tyre mark was found at the place of incident and therefore finding of the courts below that incident occurred due to rash negligent driving of the lorry by the revision petitioner is not sustainable and conviction is to be set aside. Learned counsel also argued that in any case sentence awarded is excessive and in case conviction is to be confirmed, sentence may be modified. 4. Learned Public Prosecutor pointed out that lorry driven by revision petitioner hit the jeep which was coming from east to west through its proper side just 2 meter to the north of the southern tar end which itself establish that lorry was proceeding along the CRRP 3575/07 3 wrong side and due to the rash and negligent driving of the revision petitioner, it hit on the jeep causing the death of driver of the jeep and one of passengers of the jeep and grievous hurt were caused to the passengers of the jeep and therefore the conviction is perfectly legal. Learned Prosecutor also argued that in the nature of offences sentence awarded is only reasonable. 5. Fact that revision petitioner was driving lorry NL-2 A/6979 along Perinthalmanna-Mannarkkad road at 8.30 a.m on 18/7/1997 was not disputed. It is also not disputed that at the scene of occurrence the lorry hit on jeep KL-10 C-2882 which was proceeding from east to west and driven by deceased Shoukathali and in that collision grievous hurt was caused to Shoukathali who succumbed to the injuries later. It is also not disputed that a minor girl aged 7 years sustained grievous hurt and other passengers also sustained hurt proved by evidence of Pws.14 and 15 and evidenced by Exts.P5 to P9 wound certificates and Ext.P3 postmortum certificate. Fact that at the scene of occurrence road is lying east- west and lorry was proceeding from west to east and jeep was proceeding from east to west were not disputed. Ext.P12 the scene mahazar with the evidence of PW17, Sub CRRP 3575/07 4 Inspector of Police establish that tar road is having a width of 7.6 meters and a mud road margin of 2 meter on the north and 1.75 meter on the south. The exact spot at which lorry, which came from west hit on the jeep which came from east, was 2 meter to the north of southern tar road end. Though lorry subsequent to the incident was found 6 meter to north east of the scene of occurrence and that too on the northern margin, it is evident that subsequent to hitting the jeep, lorry moved to north- east and stopped at the northern road margin. Learned counsel appearing for revision petitioner vehemently argued that evidence of Pws.1 and 2 should not have been relied on and non monitoring of existence of a mill in Ext.P12 scene mahazar was pointed as a ground to disbelieve the evidence of PW1. On going through the judgments of courts below, I cannot agree with the submission that appreciation of evidence was either perverse or was not in the proper perspective. I have gone through the evidence of Pws.1 and 2 and find that their evidence was properly appreciated by the courts below. Evidence establish that revision petitioner was driving the lorry in a rash and negligent manner so as to endanger human life and that too along the wrong CRRP 3575/07 5 side of the road and by such driving hit on the jeep which came from the opposite side and caused grievous injuries to its driver and a minor girl who was a passenger of the jeep who later succumbed to injuries. Evidence of PW14 doctor who conducted postmortem examination on the body of Rizwana, minor girl corroborated by Ext.P4 postmortem certificate and evidence of PW13 doctor who conducted postmortem examination on the body of Shoukathali, the driver corroborated by Ext.P3 postmortem certificate establish that due to the injuries sustained by the driver Shoukathali and passenger Rizwana, both of them died. In such circumstances, conviction of revision petitioner for the offence under Section 304 A of Indian Penal Code is perfectly legal. Evidence also establish that PW9, another passenger of jeep sustained injuries as proved by evidence of PW15, the doctor and corroborated by Ext.P6 wound certificate. Evidence of PW15 establish that PW9 sustained fracture of his clavicle and mandible. Exts.P6 to P9 wound certificates and evidence of PW15 also establish that other passengers Aswin aged 5 years and Sameera aged 13 years also sustained fracture and simple hurts. In such circumstances, CRRP 3575/07 6 conviction of revision petitioner for the offence under Sections 279,337 and 338 of Indian Penal Code is also perfectly legal. 6. Then the only question is regarding the sentence. Learned Magistrate did not award any sentence for the offence under Sections 279, 337 and 338 of Indian Penal Code, in the light of the sentence awarded for the offence under Section 304 A of Indian Penal Code considering the provisions of Section 71 of Indian Penal Code. Section 304 A provides for a sentence of imprisonment which may extent to two years or fine or both. Learned Magistrate awarded a sentence of rigorous imprisonment for 1½ years and a fine of Rs.3,000/-. Learned counsel submitted that the incident was on 18/7/1997 and as revision petitioner was living for the last more than 10 years under the threat of conviction, sentence may be modified. Considering the entire facts and circumstances of the case, interest of justice will be met, if the sentence is modified to rigorous imprisonment for one year and fine of Rs.5,000/- and in default simple imprisonment for one month. Revision petition is allowed in part. Conviction CRRP 3575/07 7 of revision petitioner for the offence under Section 304 A, 279, 337 and 338 of Indian Penal Code is confirmed. Sentence is modified to rigorous imprisonment for one year and fine of Rs.5,000/- and in default simple imprisonment for one month. Revision petitioner is entitled to set off for the period for which he has been in custody during trial and if any subsequently. Judicial Magistrate of First Class, Perinthalmanna is directed to execute the sentence. M.SASIDHARAN NAMBIAR, JUDGE. uj.