IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 Crl.Rev.Pet.No. 1033 of 2001() ------------------------------ CRA.149/1995 of ADDL.SESSIONS COURT, KOTTAYAM CC.367/1993 of JUDL.MAGISTRATE OF FIRST CLASS-I, KANJIRAPPALLY .................... REVN. PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------- JOSEPH @ KUTTAPPAN, AGED 35, S/O. OUSEPH, OLIKATTIL VEEDU, EDAKUNNAM KARA, MUNDAKAYAM VILLAGE. BY ADV. SRI.JOHNSON MANAYANI RESPONDENT/RESPONDENT/RESPONDENT:- -------------------------------------------------- STATE OF KERALA, REP. BY ITS STATE PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI. PUZHAKKARA MUHAMMED, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. =================== Crl.R.P. No.1033 of 2001 =============================== Dated this the 13th day of October, 2008. O R D E R Revision petitioner and counsel remained absent. There is no representation. I heard learned public prosecutor. 2. Revision petitioner faced trial for offence punishable under Sections 279, 337 and 338 of the Penal Code on the allegation that on 1.6.1993 at about 11.30 a.m., he drove the jeep involved in the case in a rash and negligent manner so as to endanger human life and caused that vehicle hit PW1 resulting in fracture of both hands and legs. Learned Magistrate convicted revision petitioner and sentenced him to undergo imprisonment for various periods. Appeal preferred by him was dismissed by learned Sessions Judge. 3. PWs 1 to 5 were examined by prosecution to prove the alleged incident. PWs 3 to 5 did not support the prosecution. PWs 1 and 2 who were examined in the court below on 13.2.1995 stated that while PW1 was walking on the western side of the road from south to north, offending jeep came from opposite side Crl.R.P. No.1033 of 2001 2 and hit PW1. PWs 1 and 2 stated that they could identify the driver of the jeep whom they had seen in the (trial) court on the previous posting day. 4. PW6 inspected the offending vehicle and issued Ext.P2 certificate stating that accident was not due to any mechanical defect. Ext.P4 is the wound certificate of PW1. It is seen that without examining the medical officer who issued the medical certificate or, if that officer is not available for any reason, by examining any other medical officer who is conversant with the signature of the medical officer who issued the medical certificate, the same was marked through Sub Inspector. Ext.P4 is the mahazar for scene occurrence. Accident occurred at a point 5.1 meters east of western tar end, the tar portion having a width of 11.64 metres. It is contended in the revision petition that conviction of revision petitioner is not justified. 5. It is seen from the order sheet of the trial court that on 13.2.1995 when PWs 1 and 2 were examined, revision petitioner was not present in court. That is why PWs 1 and 2 stated that they could identify the driver of the jeep who was Crl.R.P. No.1033 of 2001 3 present in the court on previous posting day. When PWs 1 and 2 stated so, I must understand that they had seen and identified the revision petitioner standing in the dock of accused on the previous posting day. That version of PWs 1 and 2 was not challenged also. Moreover, PW7, owner of the vehicle gave Ext.P3 reply to the notice issued by the investigating officer stating that revision petitioner was driving the offending vehicle at the relevant time. PW7 stated in cross examination that he got that information from his brother. In the revision petition there is no contention that revision petitioner is not the driver of the offending vehicle. In the circumstances, there is no reason to interfere with the finding of the trial court that revision petitioner was the driver at the relevant time. 6. But regarding the cause of incident, there is no convincing evidence. Going by the version of PWs 1 and 2, the former was walking along western side of the road from south to north. In fact, at one stage PW1 stated that she was walking along the right side (along the eastern side of the road). She was unable to say the whether accident occurred on the western Crl.R.P. No.1033 of 2001 4 side or eastern side of the road. At any rate, PW2 was sure that PW1 was walking along western side of the road. Ext.P4 shows that it is almost towards the centre of the tar portion that accident occurred. PWs 1 and 2 have no explanation as to how PW1 happened to be at the centre of the road. Ext.P4 supports the suggestion of the revision petitioner in cross examination of PWs 1 and 2 that PW1 crossed the road abruptly and invited the accident. It has also come in evidence that jeep was stopped at the spot of the accident itself which ruled out any excessive speed on the part of the driver. Evidence of PWs 1 and 2 does not show that there was culpable rashness or negligence on the part of revision petitioner. As such, conviction of the revision petitioner and sentence are liable to be set aside. Resultantly, revision petitioner succeeds. Conviction and sentence of revision petitioner are set aside and he is acquitted of the charges made against him. Bail bond is cancelled. THOMAS P.JOSEPH, JUDGE. bkn/-