IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 Crl.Rev.Pet.No. 1415 of 2001() ------------------------------ CRA.497/1998 of SESSIONS COURT, KOZHIKOE CC.606/1996 of JUDL. MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM .................... REVN. PETITIONER/APPELLANT: ---------------------------------- MANOJ, S/O.NARAYANAN, ECHARANGATtU HOUSE, MUTTANCHERRY, MATAVOR AMSOM, KOZHIKODE TALUK. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S)/COMPLAINANT/STATE: ------------------------------------------- 1. THE SUB INSPECTOR OF POLICE, CITY TRAFFIC. (CR. NO.806/96). 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KRALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.T.R.RAJESH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/11/2011, HE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.1415 OF 2001 ----------------------------------------- Dated this the 10th day of November 2011 ORDER Revision is by the accused in C.C No.606/1996 on the file of the Judicial First Class Magistrate, Kunnmangalam. He was prosecuted for the offences under Sections 279, 337 and 338 IPC on a report filed by the Sub inspector of Police, City Traffic, Kozhikode. Negativing his plea of not guilty, after trial, the learned magistrate found him guilty of all the aforesaid offences, on which he was sentenced to undergo simple imprisonment for three months, and to pay fine of `.1,000/- with default term of simple imprisonment for one month under Section 279 IPC, simple imprisonment for three months and to pay fine of `.500/- with default term of simple imprisonment for one month under Section 337 IPC and simple imprisonment for six months and fine of `.1,000/- with default term of simple imprisonment for one month under Section 338 IPC. He was allowed to undergo the substantive terms of imprisonment concurrently. The appeal preferred by the accused was turned down by the learned sessions Judge, who affirmed the conviction and sentence without any modification. Feeling aggrieved, the accused has preferred this revision Crl. R.P No.1415 OF 2001 2 2. Prosecution case in short is that the accused drove a vehicle, a jeep, on 26-05-1996 at 9:30 a.m through the road leading from Patanilam to Narikkuni, rashly, negligently and with enormous speed and on account of his rash and negligent driving the vehicle capsized causing injuries to some of the passengers travelling in that vehicle and thereby he committed the offences punishable under Sections 279, 337 and 338 IPC. The ocular account of the incident given by PW1 to PW5, passengers travelling in the jeep driven by the accused, who sustained injuries in the accident, was found trustworthy, reliable and convincing by both the courts below to hold the accused guilty of the offences and found a conviction against him for such offences. The learned counsel for the accused submitted that the evidence let in by the prosecution, on which the conviction was founded against the accused, was not a case which was canvassed by the prosecution, but, solely on the basis of a divergent version presented during the course of the trial by the passengers, PW1 to PW5, who suffered injuries in the occurrence. During trial, the aforesaid witnesses developed a case that the occurrence took place when the accused culpably drove his vehicle with enormous speed to overtake another jeep moving in front. Such a case was not there in the statements recorded from these Crl. R.P No.1415 OF 2001 3 witnesses by the investigating agency nor in the imputations levelled under the charge forming the basis of the accusation for the offences imputed against the accused, according to the counsel. The only independent witness examined in the case, PW6, turned disloyal to the prosecution and what remained was only the evidence of the passengers, PW1 to PW5, who had given a version as different from the one which was presented by the prosecution, is the submission of the counsel. Adverting to the judgment of the learned magistrate, the learned counsel submitted that no explanation of how the accident took place was not offered by the accused was taken serious exception by the trial magistrate as an incriminating circumstance to found a conviction against him. Conviction of the accused, though it was upheld by the learned Sessions Judge after reappreciation of the evidence, as it is unsupported by legal evidence, is liable to be set aside, is the further submission of the counsel. 4. I have perused the records of the case. I find considerable force in the submissions made by the counsel for the accused that the conviction founded on the accused is not supported by legal evidence. The witnesses examined on behalf of the prosecution, the passengers in the vehicle, PW1 to PW5, it is seen, at the most has Crl. R.P No.1415 OF 2001 4 stated that the accused had driven the vehicle at enormous speed. Speed is only a relative term which in the absence of other materials showing culpable rashness, on the assertion of the witnesses alone, is not sufficient to show that the occurrence took place due to the fault of the accused. At what speed the vehicle was driven there was no material, other than the assertions of the witnesses it was driven in speed. Negligence or Rashness alone cannot be the basis to enter a finding for the offence imputed under Section 279 of the Indian Penal Code, which requires culpable criminal rashness or negligence. So, on the assertions of the witnesses that the vehicle was driven at enormous speed and the occurrence took place when the jeep driver, the accused, attempted to overtake another vehicle, which was conspicuously absent in the prosecution case, and unsupported by any of the materials tendered by it before the court, the conviction entered acting upon such evidence alone to hold that the accused has driven the vehicle at enormous speed, cannot at all be sustained. The mere fact that the passengers, PW1 to PW5, sustained injuries when the vehicle capsized that also is not sufficient where there is absence of evidence to show there was culpable criminal rashness and negligence on the part of the accused for the capsizing of the vehicle. The nonexplanation of the Crl. R.P No.1415 OF 2001 5 accused as to how the accident happened, which was considered by the magistrate as an incriminating circumstance, is not at all a material circumstance in the given facts of the case where there was absolutely no material to hold the accused guilty of driving the vehicle with such criminal rashness and negligence endangering the life of the passengers who travelled in his vehicle. In the circumstance, I find, the conviction entered against the accused under Section 279, 337 and 338 Indian Penal Code are liable to be set aside. Setting aside the conviction and sentence imposed against the accused, he is acquitted of the above offences. Fine amount, if any, remitted by the accused shall be refunded to him. Revision allowed. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge