IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 Crl.Rev.Pet.No. 206 of 2001 ----------------------------------- CRA.160/1998 of ADDL. SESSIONS COURT, ALAPPUZHA ST.4175/1994 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA .................... PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------- MURALEEDHARAN S/O KESAVAN SAHARIPADATH HOUSE KOKKOTHAMANGALAM VILLAGE CHERTHALA TALUK ALAPPUZHA DISTRICT BY ADV. SRI.JOHN JOSEPH (ROY) SRI.G.N.NAIR RESPONDENT/RESPONDENT/COMPLAINANT ---------------------------------------------------------------- STATE OF KERALA REP BY ADDL. S.I. OF POLICE CHERTHALA POLICE STATION THROUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/08/2009, THE COURT ON 12/08/2009 PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.206 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of August 2009 ORDER Petitioner who has been found guilty under Section 279 and 337 IPC by the trial court as well as the appellate court has preferred this revision petition. 2. Petitioner stands convicted and sentenced to undergo simple imprisonment for three months each under Section 279 and 337 IPC and to pay a fine of Rs.500 for the offence under Section 279 and Rs.300 for the other offence under Section 337 IPC. In default of payment of fine, the petitioner is directed to suffer simple imprisonment for one month under Section 279 IPC and for 15 days under Section 337 IPC. The above concurrent order of conviction and sentence is under challenge in this petition. 3. The prosecution case in brief is that at about 8.30 a.m. on September 2, 1994 petitioner while driving tempo van bearing registration No.KR0 3331 had knocked down PW2 while she was walking through the eastern road margin on the Chenganda Bridge – MC Dowell Company Road. The prosecution Crl.R.P.No.206 OF 2001 :: 2 :: alleged that the petitioner drove the vehicle in a rash and negligent manner at a very high speed. PW2 had to remain in the hospital as an inpatient for a few days. According to PW3, the daughter of PW2, her mother had remained unconscious for six days. 4. The prosecution examined PW1 to 7 and marked Ext.P1 to P5 on its side. There was no oral or documentary evidence on the side of the defence. 5. PW2, the victim, was aged 70 years at the time of the incident. She candidly admitted when she was examined two years after the incident that she could not remember the date of the accident or who drove the vehicle. But she asserted that the incident took place on the road in front of her house. She further stated that she was walking along the eastern margin of the road towards east while returning home after purchasing milk. She also stated that one tempo van came and hit her. She identified her signature in Ext.P1. (It is on record that PW2 passed away during pendency of this petition). 46 But PW3 categorically stated that the accident took place in front of her house on the road situated on the western side. She specifically stated further that her mother was knocked down while Crl.R.P.No.206 OF 2001 :: 3 :: she was walking along the eastern margin of the said road. According to her, the accident occurred only because the petitioner had driven the vehicle in a rash and negligent manner and at very high speed. PW2 was removed to the hospital in the same vehicle and was treated as an inpatient in the hospital. She referred to the number of the vehicle and identified the driver of the vehicle. Of course in cross examination this witness stated that she was not questioned by the police. It is not necessary to refer to the evidence of the other witnesses. The courts below have dealt with the entire oral and documentary evidence in the case elaborately and entered the finding that the charge against the petitioner stood proved and established. 7. Sri.John Joseph, learned counsel for the petitioner, submits that the courts below have committed serious illegality in accepting the interested version of PW3. He points out that PW3 was planted as a witness in the case. He also points out certain variations in the evidence of PW2 and 3. 8. It is revealed from evidence of PW2 the victim that her eye sight was totally impaired. She admitted that she could not say from which side the vehicle came and hit her and how the incident took Crl.R.P.No.206 OF 2001 :: 4 :: place. In her chief examination itself, she stated that she could not see at all. But PW3, the daughter tried to salvage the situation by saying that there was no impairment of her sight and hearing. It was suggested by the defence in the course of the examination of these two witnesses that the accident had occurred while PW2 had tried to cross the road. A perusal of Ext.P3 scene mahazar will indicate that the accident occurred about 2½ feet away from the road margin. But having carefully perused the testimonies of PWs 2 and 3, I do not find any reason to discard their evidence in toto. 9. Admittedly, the victim had suffered only minor injuries like abrasions and contusions on the knee and leg and also on the left temporal region. Learned counsel submits that substantive sentence of imprisonment imposed on the petitioner is not warranted at all. If the petitioner is sent to jail at this distance of time, it will cause irreparable damage and prejudice to him and his entire family. Keeping in view all the above aspects and also the fact that the accident took place about 15 years ago, I am satisfied that some leniency can be shown to the petitioner in the matter of substantive sentence. 10. Therefore, while confirming the order of conviction, the Crl.R.P.No.206 OF 2001 :: 5 :: substantive sentence of imprisonment imposed on the petitioner under Section 279 and 337 IPC is reduced and modified to a sentence of imprisonment till the rising of the court. The fine and default sentence are not disturbed. However, the petitioner shall pay a further sum of Rs.10,000/- as compensation under Section 357 (3) of the Code of Criminal Procedure to PW3. In default of payment, petitioner shall suffer simple imprisonment for two months. Petitioner shall appear before the trial court on 25th September, 2009 and remit the amount of fine and compensation. On his appearance, the learned Magistrate shall ensure that the petitioner undergoes imprisonment till the rising of the court on that day. On remittance of the amount of compensation, the court below shall release the same to PW3. In case of failure of the petitioner to appear and remit the amount of fine and compensation, the court below shall execute the sentence imposed on the petitioner by the appellate court, forthwith. (A.K.BASHEER, JUDGE) jes Crl.R.P.No.206 OF 2001 :: 6 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.206 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ORDER Dated 12th August 2009