IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 Crl.Rev.Pet.No. 881 of 2000() ----------------------------- CRA.161/1996 of SESSIONS COURT, KOLLAM CC.120/1995 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOTTARAKKARA .................... REVN. PETITIONER(S): --------------------- UMMACHAN JOSE, IRUMPADUKKAL MUKALIL PUTHEN VEEDU, IRUKKUZHI MURI, PAVITHRESWARAM VILLAGE. BY ADV. SRI.PHILIP M.VARUGHESE RESPONDENT(S): ------------------ STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- Crl.R.P.No.881 of 2000 ----------------------------------------- Dated this the 23rd July, 2009 O R D E R Revision petitioner was convicted and sentenced by Magistrate Court to pay a fine of Rs.500/- and in default of payment of fine to undergo simple imprisonment for 1 month under Section 279 of the Indian Penal Code. He was further sentenced to undergo simple imprisonment for 6 months and to pay a fine of Rs.500/- in default of payment of fine to undergo simple imprisonment for 1 month under Section 304A IPC. The said conviction and sentence were confirmed by Additional Sessions Judge in appeal. Hence this revision. 2. According to prosecution, on 24.11.1994 at about 3.30 p.m, while PW2 was returning home from the school along with deceased child through the western side of the road, the accused drove a car from north to south in a rash and negligent manner at high speed so as to endanger human life and hit against the boy. The boy died due to the injuries sustained even before he reached the hospital. 3. To prove the prosecution case, PW1 to PW13 was Crl.RP.881/00 2 examined and Exhibits P1 to P10 were marked. The accused examined DW1 as an eye witness to the occurrence. According to accused, he was driving the car at a slow speed while the boy wriggled out from the clutches of the grand mother, PW2 and crossed the road and hence, the incident happened. He denied his liability. 4. Both the courts below found that the evidence of PW1 to PW3 eye witnesses to the occurrence establishes the prosecution case that the petitioner was driving the vehicle in a rash and negligent manner and came to the wrong side of the road and hit against the boy, consequent to which the boy died. 5. Learned counsel for petitioner submitted that there is no reliable evidence regarding place of occurrence and the manner in which the car hit against the boy. It was argued that the investigating officer, PW13 stated that the witness, who attested the scene mahazar, had shown the place of occurrence and therefore, no reliance can be placed on the details in the scene mahazar. The exact place of occurrence is Crl.RP.881/00 3 therefore not clear from the prosecution evidence, it is submitted. In the light of the above submissions, I have gone through the records and evidence in this case. From a reading of the evidence of PW1 to PW3, who stood by prosecution I find that they gave evidence consistent with the prosecution case and it cannot be said that there is no reliable evidence regarding the place of occurrence or the manner in which the incident happened. 6. PW1 to PW3 categorically deposed the manner in which incident happened. As rightly held by court below, their evidence discloses that the deceased boy and his grand mother, PW2 were proceeding along the western side of the road from north to south and the car came from back side from north-south direction and hit against the boy on the western side of the road. The accused has no explanation why he had gone to the wrong side of the road and hit against the boy, who was walking in the same direction. 7. The case of the accused is that the boy had crossed the road. But the incident did not happen on the eastern side of Crl.RP.881/00 4 the road or in the middle of the road, but PW1 to PW3 consistently stated that it happened on the western side of the road. PW13, the investigating officer stated in cross- examination that the place of occurrence is 59 c.m away from the western margin towards the east. There is no reason why his evidence should be discarded, as it is consistent with the evidence given by PW1 to PW3. 8. On the basis of these relevant facts, both the courts found that accused was driving the car in a rash and negligent manner. The said finding cannot be said to be perverse. Learned Public Prosecutor submitted that as per the evidence, the incident happened near a junction and school also. The driver ought to have been more careful in such a place. It was also pointed out that it has come out in evidence that the car was stopped at some distance from the place of occurrence. The speed of the car was also can be inferred from this fact, it is submitted. 9. Learned counsel for petitioner argued that there is a difference between criminal negligence and civil negligence Crl.RP.881/00 5 and he cited a decision reported in Jacob Mathew v. State of Punjab and another ( (2005)6 SCC 1). On going through the said decision and the evidence in this case, it is clear that this is a case of criminal negligence and not civil negligence. Though a case is taken up by the accused that the boy had crossed the road, even the independent witness, PW3 denied such a fact. As per the evidence, the incident happened on the western side of the road and the allegation that the boy crossed the road and he was in the middle does not appear to be consistent with the evidence adduced in this case. 10. Though DW1 was examined, in the cross-examination it was admitted by him that there was no obstruction for the driver for taking away the car or stopping the car when the child crossed the road. He also admitted to a court question that he did not see the vehicle hitting the boy. Taking all the facts into consideration, I do not find that concurrent finding of guilt warrants any interference. The sentence also is consistent with the offence which also does not call for any interference. The conviction and sentence are confirmed and Crl.RP.881/00 6 this Criminal Revision Petition is dismissed. K.HEMA, JUDGE vgs. Crl.RP.881/00 7 K.HEMA, J. ------------------------------ Crl.R.P.NO.881 of 2000 ------------------------------ O R D E R 23.7.2009