IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 15TH SEPTEMBER 2008 / 24TH BHADRA 1930 Crl.Rev.Pet.No. 29 of 2001() ---------------------------- CRA.137/1997 of SESSIONS COURT, KOZHIKOE CC.872/1992 of JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA .................... REVISION PETITIONER/APPELLANT/ACCUSED: ------------------ SURENDRAN, AGED 35 YEARS, S/O.BALAN, THATTARI HOUSE, (P.O.) MEMUNDA, BADAGARA. BY ADV. SRI.C.VALSALAN RESPONDENT/RESPONDENT/COMPLAINANT: ------------- THE SUB INSPECTOR OF POLICE, BADAGARA, BADAGARA POLICE STATION IN CRIME NO.339 OF 1991 REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.29 of 2001 -------------------------------------- Dated this the 15th day of September, 2008. ORDER Having invited concurrent finding of fact regarding the rash and negligent driving so as to endanger human life resulting in injuries to the six year old daughter of PW1, convicted for offences punishable under Sections 279 and 338 of Indian Penal Code and sentenced to undergo simple imprisonment, the revision petitioner is requesting this Court to invoke its revisional jurisdiction under Section 397 of the Code of Criminal Procedure. 2. Heard the learned counsel for the revision petitioner and the Public Prosecutor. The learned counsel submitted that the finding entered by the courts below regarding rash and negligent driving is erroneous, is not supported by any evidence and that at any rate, the sentence awarded is excessive. 3. The charge against the revision petitioner is that on 27.7.1991 at about 10 a.m., he drove the offending jeep along the Vadakara-Memunda Public road in the manner first above stated and at the place of accident, the jeep hit the six year old daughter of PW1 who was proceeding to the school. The daughter of PW1 suffered grievous hurt. This is proved by the testimony of PWs 3 and 6 and Exts.P2 and P4. On 31.7.1991, the Police recorded the Crl.R.P.No.29/2001 2 statement of PW1 at Medical College Hospital, Kozhikode and registered the case. PWs 1, 2 and 4 gave evidence regarding the accident. PW1 claimed that along with his two daughters (including the injured), he was proceeding from east to west along the road in question when the jeep driven by the revision petitioner came from the opposite side and hit his daughter. PWs 2 and 4 who are said to be running shops near the place of accident claimed to have witnessed the same and gave similar evidence. PWs 1, 2 and 4 attributed the recklessness of the revision petitioner or high speed as the cause of accident. 4. The learned counsel submits that going by the evidence of PWs 2 and 4 and even as per their previous statement to the Investigating Officer as admitted by them, the injured was crossing the road from south to north. He pointed out from Ext.P3, the mahazar for the scene of occurrence that the accident occurred at 1.99 cms south of the northern tar end. According to the learned counsel, the description of the spot of accident in Ext.P3 is in accordance with the version of PWs 2 and 4 that the injured was crossing the road at the time of accident. He also submitted that in the way the road was situate with path holes as stated by PWs 2 and 4 and in Ext.P3, the vehicle could not have been driven in excessive speed as claimed by the prosecution. 5. Though it was suggested that PW1 was not a witness to the accident, he asserted that he was with his children at the time of accident. True, he stated that the children were going ahead of him while according to PW2, Crl.R.P.No.29/2001 3 PW1 was holding on the hands of the children. Assuming so, the fact that PW1 or the other child did not suffer injuries does not militate against the charge against the revision petitioner. Even if it is assumed as contended by the learned counsel that the child was crossing the road from south to north, that does not absolve the revision petitioner of his obligation to take care and drive the vehicle with at most circumspection particularly as it is revealed from the evidence of PW1 that the school is situated about 50 metres east of the accident spot. Necessarily, the time of the accident being 10 a.m. and the accident spot being within the school zone, the revision petitioner was bound to be extra cautious. Ext.P3 shows that the road is straight to east upto 100 metres and to west upto 150 metres from the accident spot. That means, the revision petitioner could see the victim walking along the road or, even attempting to cross the road, if that version of the revision petitioner were true. Necessarily, if he were driving his vehicle at a moderate speed, he would have been able to control his vehicle and stop it on seeing the child crossing the road. Ext.P3, the mahazar, does not indicate that any attempt was made to stop the jeep. On the other hand, what PWs 2 and 4 stated is that the revision petitioner abruptly swerved the jeep and caused it to hit the child. The facts, evidence and circumstances indicate culpable rashness and negligence on the part of the revision petitioner. As such, there is little reason to interfere with the concurrent finding of fact in that regard. Exts.P2 and P4 show that the victim suffered grievous hurt. Conviction under Sections 279 and 338 of Indian Penal Code therefore, requires no interference. Crl.R.P.No.29/2001 4 6. At this stage, the learned counsel submitted that the information he received is that the revision petitioner got employment as driver in the Kerala State Road Transport Corporation. Learned counsel submits that the imprisonment will cost his job. He made a fervent plea that the sentence may be modified as fine. 7. The case was registered against the revision petitioner in the year 1991 and during the last 17 years he has been fighting this case. Though, not a defence for the revision petitioner in the peculiar facts and circumstances of this case, I also bear in mind that the accident spot shown in Ext.P3, mahazar, is 1.99 cms south of the northern tar end. Though, contributory negligence, (and no such allegation can also be made against the victim aged six years) is not a defence in a prosecution for rash and negligent driving, certainly that is a factor which has to be considered while considering the sentence. Taking these aspects into account, I am satisfied that fine of Rs.1,000/- (Rupees One thousand only) each will be the sufficient punishment. Resultantly, this Revision Petition is allowed in part to the extent that the sentence imposed on the revision petitioner is modified as fine of Rs.1,000/- (Rupees One thousand only) each and in case of default, to undergo simple imprisonment for one month each. The revision petitioner is given one month's time to deposit the fine in the trial court. Bail bond is cancelled. Crl.R.P.No.29/2001 5 Crl.M.P.No.112 of 2001 in Crl.R.P.No.29 of 2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.29/2001 6 Thomas P.Joseph, J. Crl.R.P.No.29 of 2001 ORDER 15th September, 2008.