IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 CRL.REV.PET.NO. 1320 OF 2009() ------------------------------------------- CRA.663/2006 OF II ADDL. SESSIONS COURT, PALAKKAD CC.468/2004 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... REVN. PETITIONER(S): PETITIONER ------------------------------------------------- BAIJU, S/O.KUMARAN, ALAMBADI HOUSE, KOZHINJAPARA, PALAKKAD DISTRICT. BY ADV. SMT.SALLY THOMAS CHACKO RESPONDENT(S): RESPONDENT ----------------------------------------------- STATE, REPRESENTED BY SUB INSPECTOR OF POLICE, PALAKKAD. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1320 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 15th day of June, 2009 O R D E R -------------- Petitioner faced trial in the court of learned Judicial First Class Magistrate-I, Palakkad in C.C. No.468 of 2004 for offences punishable under Sections 279, 337, 338 and 304A of the Indian Penal Code (for short, “the Code”). Charge is that on 28.1.2004 at about 3.00 p.m. petitioner drove Jeep No.KRO-4059 (hereinafter referred to as “the offending vehicle”) along Palakkad-Kozhinjampara road from west to east in a rash and negligent manner so as to endanger human life and at the place of accident caused that vehicle to hit a Maurti Car No.KL- 7/M-6665 which came from the opposite direction with one of the deceased, driver of the Car at its wheels. Other passengers in the Car also sustained hurt/grievous hurt. Apart from the driver of the Car the younger brother of P.W.1 and another passenger in the Car succumbed to the injuries. Prosecution examined P.Ws.1 to 14 and proved Exts.P1 to P16. Learned magistrate found that petitioner by his rash and negligent driving caused the accident which resulted in hurt/grievous hurt/death of driver and passengers in the Car. He was convicted and sentenced to undergo imprisonment for various periods. Unsuccessfully he preferred appeal against conviction and sentence. CRL. R.P. No.1320 of 2009 -: 2 :- Now in revision petitioner challenges the conviction and sentence. 2. Learned counsel contends that apart from the interested version of P.Ws.1 and 2 who are the passengers in the Car there is no evidence let in by the prosecution to prove the alleged accident and that at any rate rashness and negligence on the part of the petitioner is not proved. It is further contended by learned counsel that even as per the prosecution case petitioner was overtaking another vehicle going ahead of him and hence it cannot be said that there was rashness or negligence on the part of the petitioner. There is also challenge to the sentences awarded to the petitioner. Learned counsel contends that since petitioner is not shown to be involved in any other case he should have been released under Section 4 of the Probation of Offenders Act (for short, “the Act). 3. That passengers in the Car including P.Ws.1 and 2 and the driver suffered hurt/grievous hurt and among them driver of the Car and younger brother of P.W.1 succumbed to the injuries are proved by Exts.P7 to P12 and evidence of P.Ws.7 to 9, 16 and 17. P.W.10, Motor Vehicle Inspector inspected the vehicles involved and reported as per Exts.P13 and P14 that accident was not due to any mechanical defect of either of the vehicles. It is seen from Exts.P13 and P14 that the CRL. R.P. No.1320 of 2009 -: 3 :- front portion of both vehicles were heavily damaged. Steering wheel of the offending vehicle was broken. Vehicles could not be test driven but P.W.10 opined that the brake system of both vehicles was effective and that accident was not due to any mechanical defect of the vehicles. It is seen from the evidence of P.W.10 that attempt was made on behalf of the petitioner to show that offending vehicle developed mechanical defect on its falling into a pit but P.W.10 opined that damage noted in Ext.P14 could not be caused in that manner but, if the vehicle falls into a pit, steering wheel can be broken. There is no evidence to show that any such thing had happened. P.W.10 was specific that accident was not due to any mechanical defect. That evidence has not been successfully challenged. 4. Though prosecution examined P.Ws.1, 2, 4 and 5 to prove the accident, P.Ws.4 and 5 who are independent witnesses refused to support prosecution. P.Ws.1 and 2 stated about the accident. Their evidence in short is that the Car was going from east to west. At the place of accident offending vehicle came from west to east at excessive speed, overtook another vehicle and hit the Car. P.W.1 asserted that he could see the petitioner as the driver of the offending vehicle at the time of the accident itself. According to the CRL. R.P. No.1320 of 2009 -: 4 :- learned counsel evidence of P.Ws.1 and 2 alone is not sufficient. 5. So far as identity of driver of the offending vehicle is concerned, P.W.1 has identified petitioner as the driver of the offending vehicle. For the mere reason that P.Ws.4 and 5 who are independent witnesses hailing from the locality refused to support prosecution evidence of P.Ws.1 and 2 cannot be discarded. Thus, that petitioner was driving the offending vehicle at the relevant time is proved beyond doubt. 6. What remained for consideration is whether accident was due to rash and negligent driving of the petitioner. To decide that, it is relevant to look into Ext.P4, mahazar for scene of occurrence. That mahazar was prepared by P.W.11, Sub Inspector who investigated the case. P.Ws.4 and 6 are attesters in Ext.P4, mahazar. As per Ext.P4, scene of occurrence was identified by P.W.4 who himself is an occurrence witness. I have gone through the evidence of P.W.11 and find that there is no challenge to Ext.P4 or the accident spot stated in it. Exhibit P4 shows that the lie of the road at the place of accident is east-west. The width of tar portion is 7.03 metres. Accident spot is 70 cms north of southern tar end. It is also stated in Ext.P4 that at and near the scene of occurrence P.W.11 had seen broken glass pieces. CRL. R.P. No.1320 of 2009 -: 5 :- P.Ws.4 and 6 admitted that they attested Ext.P4. Investigation Officer (P.W.11) has stated in Ext.P4 that he identified the scene of occurrence as pointed out by one of the occurrence witnesses and the circumstances seen at the scene of occurrence by P.W.11 as stated in Ext.P4 supported that. There is no reason why I should discard Ext.P4. Moreover, evidence of P.Ws.1 and 2 is also that the offending vehicle which was coming from west to east was in its attempt to overtake another vehicle going ahead of it. Oral evidence of P.Ws.1 and 2 is consistent with the accident spot as identified by P.W.11 and stated in Ext.P4. Accident occurred towards the southern portion of the road which is the extreme wrong side of the offending vehicle driven by the petitioner and the proper side of the Car. Assuming that petitioner was overtaking another vehicle going ahead, it was for him to ensure that there were no vehicles coming from the opposite direction. It is not as if petitioner could not have ascertained that. Exhibit P4 shows that road is straight towards east, upto 150 metres and towards west, up to 100 metres from the accident spot. Had petitioner exercised a little care and caution he could have seen vehicles coming from the opposite side and accordingly avoided overtaking the vehicle going ahead of him at that point of time. P.Ws.1 and 2 stated that the CRL. R.P. No.1320 of 2009 -: 6 :- offending vehicle came at an excessive speed. Nature of the damage found on the front side of the vehicles as revealed from Exts.P13 and 14 justified the evidence of P.Ws.1 and 2 that the offending vehicle came at an excessive speed and dashed against the Car. These circumstances are eloquent to indicate rashness and negligence on the part of the petitioner as rightly found by the learned magistrate and confirmed by the learned Additional Sessions Judge. I find no reason to interfere with the concurrent finding entered by the courts below. Conviction of the petitioner does not require interference. 7. I am not inclined to think that this is a fit case to invoke the provisions of the Act merely because petitioner is not shown to be involved in any other case. This is a case of rash and negligent driving of the offending vehicle by the petitioner resulting in the death of two persons and hurt/grievous hurt to others. Sentence awarded is reasonable and did not require interference. Resultantly, revision fails. It is dismissed. THOMAS P.JOSEPH, JUDGE. vsv