IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 8TH OCTOBER 2009 / 16TH ASWINA 1931 Crl.Rev.Pet.No. 1750 of 2002() ------------------------------ CC.49/1994 of THE COURT OF THE MUNSIFF-MAGISTRATE, PONNANI CRA.91/1999 of THE ADDL. DISTRICT AND SESSIONS JUDGE OF MANJERI (FAST TRACK COURT NO.II, ADHOC) .................... REVN. PETITIONER(S): --------------------- P.RAJEEV, S/O.VELAYUDHAN, EZHATTUMUGHM, MUNNOORPIILLY,, ERNAKULAM DISTRICT. BY ADV. SRI.ESM.KABEER RESPONDENT(S): --------------- 1. THET CIRCLE INSPECTOR OF POLICE, PONNANI. 2. THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.PUZHAKKARA MUHAMMED. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.P. No. 9359 of 2002 in Crl.R.P. No. 1750 of 2002 Dismissed. 8-10-2009 Sd/- P.Q.Barkath Ali, Judge. P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 1750 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 8th day of October, 2009 O R D E R Revision petitioner is the accused in C.C.No.49 of 1994 on the file of the Court of the Munsiff-Magistrate, Ponnani and appellant in Crl.A.No. 91 of 1999 of the Addl. District and Sessions Court, Manjeri. He was convicted under sections 279 and 304A IPC and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for two months under section 279 IPC and to undergo rigorous imprisonment for one year and to pay a fine of Rs.3,000/-, in default to undergo simple imprisonment for two months under section 304A IPC. On appeal, the lower appellate court confirmed the conviction and sentence. The accused has now come up in revision challenging his conviction and sentence. 2. The case of the prosecution, as shaped in the evidence before the trial court, was that on December 4, 1993 at about 3 P.M. the accused drove his Mini Lorry bearing registration No. KL-7/E-3312 along the Edappal- Kuttippuram State High Way in a rash and negligent manner and knocked down a pedestrian named Suresh Babu, a boy aged 14, who sustained Crl.RP 1750/02 2 grievous injuries and succumbed to the injuries sustained by him. Thus, the accused was charge sheeted for the offences punishable under sections 279, 337 and 304A IPC. 3. The accused on appearance before the trial court, pleaded not guilty to the charge under sections 279, 337 and 304A IPC. PWs.1 to 5 were examined and Exts.P1 to P7 were marked on the side of the prosecution. When questioned under section 313 Cr.P.C., the accused denied having committed any offence. No defence evidence was adduced. The trial court on an appreciation of the evidence, found the petitioner guilty of the offences punishable under sections 279 and 304A IPC and convicted him thereunder and sentenced him as aforesaid. He was found not guilty of the charge under section 337 IPC and was acquitted of the said charge. On appeal, the lower appellate court confirmed the conviction and sentence. 4. The following points arise for consideration in this revision :- 1) Whether the conviction of the revision petitioner under sections 279 and 304A IPC by the trial court, which was confirmed by the lower appellant court can be sustained? 2) Whether the sentence imposed against the revision petitioner is excessive and unduly harsh ? 5. On the side of the prosecution, PWs.1 to 5 were examined and Exts.P1 to P7 were marked before the trial court. PWs.1 and 2 are the eye Crl.RP 1750/02 3 witnesses to the incident. PW1 is a nearby resident. PW1 said that while he was walking along the side of the road from south to north, the offending mini lorry came at a high speed from behind and knocked down the deceased boy who was going in front of him. I have gone through the evidence of PW1. Nothing was brought out during the cross-examination to discredit his evidence. Further, his evidence is supported by PW2 another eye witness. The evidence of PW1 is corroborated the evidence of PW2. PW2 is a friend of deceased boy. He was walking along with the deceased boy along the side of the road when the accident happened. An attempt was made during his cross-examination to show that the deceased was crossing the road with PW2 and at that time the accident happened which is denied by PW2. No evidence was adduced on the side of the accused to show that the accident occurred while deceased and PW2 were crossing the road. There is also the fact that after the incident the offending mini lorry overturned, which shows that it was coming at a high speed. The evidence of PWs.1 and 2 coupled with Exts.P1 to P7 is clearly shows that the accident occurred due to the rash and negligent driving of the offending mini lorry by the accused. 6. The learned counsel for the revision petitioner argued that there is no evidence to show that the accused was the driver of offending mini lorry Crl.RP 1750/02 4 at the time of the accident. There is no substance in the above contention. Before the trial court it was not disputed that the accused was driver of the offending mini lorry at the time of the accident. That apart, PWs.1 and 2 the occurrence witnesses have identified the accused as the driver of the offending mini lorry at the time of the accident. It is not disputed that the deceased died due to the injuries sustained in the accident. Therefore, the trial court was perfectly justified in convicting the revision petitioner/accused under sections 279 and 304A IPC. 7. As regards the sentence, the trial court has sentenced the revision petitioner/accused to undergo rigorous imprisonment for six months and to pay a fine of RS.1,000/- for offence punishable under section 279 IPC, in default to undergo simple imprisonment for two months. He was also sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.3,000/-, in default to undergo simple imprisonment for two months for the offence punishable under section 304A IPC which is confirmed in appeal. He was found not guilty of the offence punishable under section 337 IPC and was acquitted of the said offence. The incident occurred on December 4, 1993. The accused was aged about 26 at the time of the incident. The accused is a lorry driver. Taking into consideration all these facts, I feel that a sentence of fine of Rs.1,000/-, in default to undergo Crl.RP 1750/02 5 simple imprisonment for one month under section 279 IPC and imprisonment till the rising of the court and to pay fine of Rs.10,000/-, in default to undergo simple imprisonment for one month under section 304A IPC would meet the ends of justice. 8. In the result, the revision petition is allowed in part. The conviction of the revision petitioner under sections 279 and 304A IPC by the trial court, which is confirmed in appeal by the lower appellate court is upheld. The revision petitioner is sentenced to pay fine of Rs.1,000/-, in default to undergo simple imprisonment for one month under section 279 IPC. He is further sentenced to undergo simple imprisonment till the rising of court and to pay fine of Rs.10,000/-, in default to undergo simple imprisonment for one month under section 304A IPC. His bail bonds are cancelled. 9. The revision petitioner shall surrender before the trial court on or before 30-10-2009 to receive the sentence. The fine amount, if realized, shall be paid to the father of the deceased by as compensation, as provided under section 357(1) Cr.P.C. His bail bonds are cancelled. P.Q. BARKATH ALI, JUDGE mn